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Press Law in Australia Contents of the article Introduction Australia has a federal system of government, with a national government granted certain powers, six state governments, retaining the residual powers, and two territories. The territories have legislatures and executives, but are subject to some federal government review. The Australian states, formerly self-governing colonies, federated on 1 January 1901. The traditional of liberal democratic government pre-dates federation, with early adoption of democratic reforms like secret ballot and universal suffrage. Australia achieved self-government and independence without the need for revolution or violence. 1. Relevant Constitutional provisions There is no provision in either Australia's Federal Constitution or in any of the state constitutions which explicitly guarantees freedom of speech and of the free press. Australia inherited the traditional English view that freedom of speech was best protected by the common law. There have been unsuccessful attempts to incorporate a guarantee of free speech, alone or with other human rights, into the Australian Constitution. The Constitution, however, is notoriously difficult to amend. Nonetheless, there have been three recent developments of interest. Although the ratification of treaties, for example the International Covenant on Civil and Political Rights (ICCPR), does not create rights and duties under Australian law without enabling legislation, there is some support for the proposition that the courts should have regard to international human rights norms in limited circumstances, including in resolving ambiguities in the statutory law or where there is no binding case-law authority. [1] Second, the Australian Press Council in its efforts to have freedom of expression set out either in the constitution or a Bill of Rights has committed to a Charter of for a Free Press in Australia, based on Article 19 of the Universal Declaration of Human Rights. Third, it is arguable that the Constitution includes some implied guarantees of free speech. In recent cases the Australian High Court has ruled that freedom of political communication is protected by implication by the Constitution's commitment to representative government through elections. It has recently unanimously reinforced the existence of that implication, although its rulings demonstrate the fragility of a freedom guaranteed by implication rather than one written into over-riding law. [2] Also, Section 92 of the Constitution, which declares that trade and intercourse among the states must be free, may have an impact on free speech. 2. Distribution of the powers between central and regional governments The Commonwealth of Australia, a constitutional monarchy, is a federation of six states (New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia), and several territories (of which two, the Northern Territory and the Australian Capital Territory, have a degree of self-government that in some respects is state-like). The Australian Constitution grants certain limited exclusive powers to the Commonwealth (Cth); other powers enumerated in the Constitution are shared concurrently with the states. Under Section 109 of the Constitution, in the event of an inconsistency between federal and state law, federal law prevails. The power of the Federal Parliament to enact laws directed only at the press is limited. The press, however, is subject to a number of federal laws of general application which come within one or other of the areas of power granted to the Parliament, including taxation, defence, corporations, interstate and overseas trade and commerce. The press is also subject to aspects of the common law (originally inherited from England, now declared by the Australian courts). which is uniform throughout the country. The law of contempt, for example, is essentially found in the common law. 3. Role of the courts Australia has both federal and state courts. In each state and territory there is a Supreme Court sitting in both civil and criminal jurisdictions, together with lower courts. At the federal level, there is a High Court of Australia which operates both as a constitutional court and as a final appellate court which, within its discretion, may decide to hear appeals from the Supreme Courts of the states and territories as well as the Federal Court. The Federal Court deals with actions under federal law. As a result of cross-vesting provisions, problems of demarcation between the jurisdiction of state and federal courts have been effectively overcome. Australia is a common law jurisdiction, and case-law from other common law jurisdictions is of persuasive value, particularly decisions of English and New Zealand courts. 4. Status of international Human Rights treaties in national law Australia is a party to the ICCPR, and in 1991 it acceded to its First Optional Protocol which enables individuals to file complaints with the UN's Human Rights Committee. The ICCPR has not been enacted into domestic (municipal) law. Ratified treaties not expressly enacted into Australian federal law have limited status in the courts. A Human Rights Commission was established in 1981 and was reconstituted as the Human Rights and Equal Opportunity Commission under the Human Rights and Equal Opportunity Commission Act, 1986 (Cth). Its purpose is to encourage observance in Australia of Australia's international human rights obligations. Various international human rights instruments, including the ICCPR, are included in the five schedules to the Act. 5. Statutory framework There is no press law as such in Australia, although there is a Newspapers and Printing Act (or similarly named Act) in five of the six states (see section 7). The electronic media is governed by the Australian Broadcasting Services Act, 1992 (Cth), which mandates the licensing of both television and radio broadcasters. 6. Regulation of ownership Australia has experienced a gradual but dramatic reduction in the number of newspaper titles. In 1923, there were 26 metropolitan daily newspapers in Australia owned by 21 proprietors. By 1950, the number had fallen to 15 metropolitan dailies having 10 owners. By 1987, there were only three major proprietors of the metropolitan dailies: Herald and Weekly Times Limited, News Limited, and John Fairfax Group Pty Limited (now Fairfax Media). In 1987, News Limited took over the ownership of the Herald and Weekly Times Limited. In the last two decades of the twentieth century, more metropolitan newspapers closed, including all specialist afternoon newspapers. However, in 2001 HWT introduced a free daily afternoon newspaper aimed at the younger city commuter market in Melbourne. A Sydney version was launched in 2005. With the exception of Sydney and Melbourne, no capital city now has more than one daily paper. There are only two national dailies, The Australian and The Australian Financial Review. News Limited controls just under 70 per cent of total metropolitan daily circulation, while Fairfax controls over 20 per cent. In 2007, Fairfax merged with Rural Press, the largest proprietor of daily and weekly regional, provincial and country newspapers, including The Canberra Times, thereby increasing Fairfax's share of the metropolitan market. Fairfax also owns newspapers in New Zealand after buying out Independent Newspapers in 2003. Only one major metropolitan daily paper, The West Australian, is controlled by proprietors independent of either News Limited or Fairfax Media. The West Australian also has interests in most of the Perth suburban newspapers jointly with News Limited's Western Australian division. The other major owner of newspapers is APN News and Media which publishes 24 daily and more than 90 non-daily newspapers across Australia and New Zealand. The major influence in magazine circulation is ACP Magazines, owned by Publishing and Broadcasting Limited (PBL). An earlier incarnation of this company divested itself of newspaper titles in the 1980s. Packer family interests have a major investment in PBL and thus ACP Magazines, but have divested themselves of a controlling interest. In 2007, new rules governing cross-media ownership were passed into law. The major aspects of the new rules are a relaxation of restrictions on cross-media ownership subject to safeguards intended to ensure no fewer than five independent "voices" remained in metropolitan markets and four in regional markets; legislation to retain licence conditions ensuring local content on regional television in Queensland, NSW and Victoria and extending to Tasmania; protection of local radio content in regional markets by requiring commercial radio licensees seeking mergers in regional markets to meet minimum standards for local content; and removal of the existing foreign ownership restrictions but retain the media industry as a "sensitive sector" under the Government's foreign investment policy. The Australian Competition and Consumer Commissioner (ACCC) was given the brief to ensure competition laws are fully complied with under the general mergers provisions of the Trade Practices Act 1974, while the Australian Communications and Media Authority (ACMA) oversees safeguards to ensure diversity and local content, including ensuring transactions comply with the minimum number of media groups requirements. ACMA was given a range of new powers to regulate broadcasting, including power to seek civil penalties and injunctions and to accept enforceable undertakings from broadcasters. Retained were existing licence and reach limits, which provide that a person may control only one commercial television licence or two commercial radio licences in any licence area, and that a person may not control commercial television licences reaching an audience of more than 75 per cent of Australian population. In addition to the print press and the commercial radio and television stations, there are two national public radio and television systems: The Australian Broadcasting Corporation (ABC) and the Special Broadcasting Service (SBS). The ABC manages one television and four radio services; while SBS has both radio and television services broadcasting in a number of ethnic community languages, as well as in English. Finally, it should be noted that there are over one hundred newspapers and magazines published in over thirty separate ethnic community languages, including a number of daily newspapers. 7. Registration requirements There is no licensing system as such or any requirement of government approval to launch a newspaper or other press enterprise. [3] All states and territories other than South Australia and Victoria (the latter repealing the relevant legislation in 1998) require newspaper printing houses to include their name and address and the name and address of the publisher in the newspaper; some states also require registration." [4] Section 201 of the federal Copyright Act, 1968 (Cth), requires that one copy of all printed material published in Australia be sent to the National Library in Canberra. In addition, each state requires that one copy of material published in the state be sent to the relevant state library. 8. Regulation of import and export of publications There are no restrictions on import and export of publications apart from those relating to obscenity, violence, the promotion or incitement of terrorism, and the use of certain drugs. [5] 9. Mechanisms of press self-regulation 9.1 The Australian Press Council The objects of the Press Council include the maintenance of the character of the Australian press in accordance with the highest journalistic standards and the preservation of the press's established freedom. The Press Council has a specific mandate to consider, investigate and deal with complaints about the conduct of the press as well as the conduct of persons and organisations towards the press. The Council is based on the proposition that the freedom of the press to publish is the freedom of the people to be informed, and that press freedom includes "the right of the newspaper to publish what it reasonably considers to be news, without fear or favour, and the right to comment fairly upon it". The Council believes that press freedom is necessary to the fulfilment of the press's function as "public watchdog" and to the public's right to receive information of public interest. The Council is funded by its constituent bodies, with the associations (country, regional and suburban), magazines, MEAA and AAP paying certain percentages of the annual budget, and the balance being divided among publishers based on a proportional basis calculated on the circulation of all metropolitan dailies in Australia. The Council provides an independent, efficient and free facility for hearing complaints against the press. In so doing, the Council gives first and dominant consideration to what it perceives to be the public's interest. The Council is guided by 9 basic principles contained in its Statement of Principles which, however, is not meant to be a precise or exhaustive formula. The 9 principles concern accuracy; provision for response to harmful inaccuracy; fairness, with respect for the privacy and sensibility of individuals; avoidance of news obtained by unfair or dishonest means; distinguishing fact from opinion and not distorting material; offensive coverage; avoiding gratuitous reference to race, nationality, religion etc; provision for response for those subject to criticism; and a guarantee to publish all adjudications relevant to a publication. 9.1b The Council's Complaint Procedures The procedure is relatively simple, and telephone costs are reduced by access to a free phone and occasional sittings in places outside of Sydney. A complaint must be in writing. If mediation does not seem possible, the complaint is referred to the newspaper and the newspaper's reply is referred to the complainant. The Press Council does not hear complaints about the conduct of individual journalists; such complaints should be addressed to the journalist's employer or, in the cases of members of the MEAA, to the Alliance. The Press Council deals with complaints about published material whether in the newsprint copy or on the publication's website. It will also, in some circumstances, deal with the non-publication of material. If the complaint alleges defamation, the Council normally requires the complainant to sign a waiver stating that s/he will not take the case to court if dissatisfied with the Council's decision. Only a small number of complainants are unwilling to sign the waiver and instead chose legal action. If the complainant is not satisfied by the reply, the matter is referred to the next hearing of the Complaints Committee. A lesser used procedure involves having an assessor or panel of assessors hear a complaint. Attendance by either or both parties at a hearing is not mandatory but is useful. Hearings are informal and, at the opening, both the complainant and newspaper may, if they wish, speak briefly. Members of the Committee then pose questions, and there is a final opportunity for brief comments by the newspaper and the complainant. The Complaints Committee consists of a majority of public members with one journalist and one publisher's representative. It drafts an adjudication which is then submitted to the full Council, which meets up to ten times each year. The sanction of the Council lies in publication by the publication concerned of adjudications which concern it. All constituent bodies undertake to publish such adjudications, and do so with appropriate prominence. Points of the adjudication must be given prominence but, unlike under the British Press Complaints system, the adjudication does not have to be printed in full. Since 1990 all relevant adjudications have been published with appropriate prominence by mainstream newspapers. Some smaller country and suburban newspapers, not affiliated with the Council, have not co-operated with the Council. 9.1c The Council's Role in Public Policy Formation The opinions of the Council are sought by government and private bodies, and by the media. The Council makes its views known in its quarterly newsletter, Australian Press Council News, on its website, and in its annual report, as well as by issuing frequent press releases. The Council also conducts conferences and seminars, and publishes conference reports in a series, the Australian Press Council Conference Papers. The Council co-operates and shares information with a network of similar bodies and with others interested in freedom of speech and the press. It is particularly active in encouraging the development of a free and responsible press in the Asia-Pacific region. 9.2 The Media Entertainment and Arts Alliance The AJA, as a professional association, was concerned with the ethics of journalism. It was the leading proponent for the establishment of the Press Council. The MEAA makes provision under its registered rules for the observance by its members of a Journalists' Code of Ethics. The 12-point Code (revised most recently in 1996) is enforced by branch Judiciary Committees from each of which appeal lies first to a branch Appeals Committee and finally to the Federal Council of the MEAA. The rules compel attendance by a member when summoned to appear before a Judiciary Committee, and allow for the imposition of sanctions, including fines, suspension and even expulsion. Proceedings must be conducted fairly, and may not be published without the specific authorisation of the Federal Executive or Federal Council. 10. Defamation Until the end of 2005, each state and territory in Australia had its own defamation laws, some based entirely on common law, others codified in full or in part. There had been numerous failed attempts at establishing uniform defamation law in the 1980s and 1990s. In 2001 the Australian Press Council initiated action to reform defamation law, particularly aimed at the development of uniform defamation law in the various state and territory jurisdictions. At the time that the Council took up the matter, the issue had been removed from the agenda of the Standing Committee of Attorneys-General (SCAG). This initiative first led to the changes to NSW defamation law and, with the assistance of the then federal AG, Daryl Williams, the issue was put back on the SCAG agenda. The NSW Attorney-General persuaded his fellow AGs to develop a draft uniform act. Around the same time, Daryl Williams' successor, Phillip Ruddock, drafted a putative national law, which would supplant the state laws if the states could not reach agreement on uniformity. There were a number of areas of disagreement between the Commonwealth and the states, on issues such as whether corporations could sue, whether juries would be involved and whether truth alone would be a defence. With input from interested parties, including the Press Council and representatives of the major publishers and broadcasters, both the state and federal proposals were developed further. There was general agreement that the SCAG draft was preferable, and the final draft was sent to the states and territories to be passed into legislation. This model Defamation Act, which had been finalised after extensive consultation and discussion, became law in the states from 1 January 2006. The only state which did not adopt fully the model law was Tasmania which retained the right for suits on behalf of the dead. The Australian Capital Territory and the Northern Territory followed suit by adopting the model Defamation Act early in 2006. The model Defamation Act introduced an offer-of-amends process aimed at reducing defamation litigation and provide for an extended qualified privilege defence based on public interest and reasonable conduct on the part of the publisher. Significantly, all jurisdictions adopted the "truth alone" defence from the common law jurisdictions. The states which had codified defamation law dropped the qualifications of public interest and public benefit from the truth defence. The new Defamation Act in effect adopted the common law approach to most matters in defamation and clarified that where juries were used the jury would determine whether the publication was defamatory and whether defences succeeded, and judges would determine damages, if any. 10.1 Civil and Criminal Actions Federal law provides for the civil action of injurious falsehood. Under this cause of action, a plaintiff must show that a written or oral statement about him was untrue, caused him actual monetary loss, and was actuated by malice. Due to the difficulty of proving malice, actions against the press for injurious falsehood are uncommon. The common law in Australia had distinguished between libel and slander. Libel (written defamation) is actionable even without proof that the plaintiff suffered financial loss, while to establish slander a plaintiff had to show that he or she suffered actual monetary damage. Under the uniform Defamation Act, the tort of slander was removed, leaving libel as the single cause of action. The stated objects of the model uniform Defamation Act are:
10.2 What Constitutes Defamation The uniform Defamation Act does not include a definition but is based on the common law approach that defamation concerns injury to reputation by: exposing a person to hatred, contempt or ridicule; or lowering a person's estimation in the eyes of right minded observers; or making others shun or avoid a person. 10.3 Liability An action for defamation may be initiated anywhere the allegedly defamatory material was published. Publication is said to occur in each place where the material is read, downloaded from the Internet, seen or heard by a person other than the person defamed. Thus if a publication is read in more than one state or territory, the plaintiff may sue in the jurisdiction which offers the best advantages. National publications must constantly try not to run afoul of any of the eight different defamation laws operating in Australia. 10.4 Defences The principal defences included justification (truth), fair comment, absolute privilege, qualified privilege, unintentional defamation, triviality and apology. The uniform model Defamation Act picks up all these defences with some notable variations to what had existed in some jurisdictions. Gone from defamation law in Queensland, Tasmania, ACT and NSW is the requirement for the truth (justification) defence to be qualified by a public interest or public benefit test. Truth alone is now a universal defence. The Australian High Court by finding the freedom of discussion of government and political matters is implied in the Australian Constitution developed an extended qualified privilege defence to defamation on the basis that members of the public have an interest in receiving information on such matters and the media has a duty to disseminate information on such matters. The defence is conditional upon publication being reasonable in the circumstances. Whether publication was reasonable may depend on a number of factors, including whether a person about whom defamatory remarks were made was given an opportunity to respond, whether the publisher believed the matter to be true and what level of checking and verification was undertaken before publication. This principle has been picked up in the new Defamation Acts. Under the new laws, defences fall unto these headings: justification, contextual truth, absolute privilege, publication of public documents, fair report of proceedings of public concern, qualified privilege for provision of certain information, honest opinion, innocent dissemination and triviality. 10.5 Public Figures To some extent, the new defences of qualified privilege and honest opinion protect newspapers against claims from public figures; nonetheless, public figures will continue to take offence and threaten action, and this undeniably must have some chilling impact on papers, especially the smaller regional ones which cannot so easily afford to defend, let alone lose, a libel suit. 10.6 Remedies and Costs The sums awarded by juries in defamation actions grew significantly during the 1990s and 2000s. In New South Wales. For instance, in 1989 the proprietor of a Sydney seafood restaurant was awarded A$100,000 (US$ 70,000) after a negative review by the food critic of The Sydney Morning Herald. Then in 2004 a freelance journalist was awarded a total of $400,000 over an article in which he was accused of dishonestly giving readers the impressing he had spoken to a swimming star at length for an article he wrote in another paper. The new Defamation Acts cap damages awards at $250,000, subject to annual review on the basis of inflation indexes. The losing party normally must pay an assessed proportion of the other party's costs, which can be quite high. The cost of civil litigation is an important issue. Legal aid is not normally available for defamation or malicious falsehood, although contingency fees are allowed in some jurisdiction (meaning a legal team can take on a case on the basis that there is no fee or a reduced fee in the event the plaintiff loses). Damages awards may have components other than compensation for hurt, suffering etc: aggravated damages, usually as a result of the conduct of the defendant during the case such as refusing to apologise, for example. Plaintiffs may also be awarded interest. Unsuccessful plaintiffs may have to pay the significant costs of defendants. 11. Invasion of privacy Privacy in Australia is regulated by the Commonwealth Privacy Act 1988 in addition to the various state Privacy Acts. The Privacy Act specifies standards according to which agencies, whether government or private, are required to deal with personal information. However, the media are exempt from these provisions provided that any conduct which would otherwise fall within the scope of the Act is done in the course of journalism and that the media organisation is publicly committed to observe a set of privacy standards. Publishers who are members of the Press Council subscribe to the Council's own Privacy Standards, as do many publishers who are not represented on the Council. The list of subscribing organisations can be found on the Council's website In the past Australian law has not included a specific tort of privacy, most courts accepting the High Court's decision in Victoria Park Racing [1934] HCA 65; (1934) 52 CLR 9 as being authority for the proposition that there was no enforceable right to privacy in common law. However, civil actions in response to certain instances of intrusion into personal privacy have been brought under other common law torts, including trespass and breach of confidentiality. Prior to the commencement of the uniform defamation legislation in 2006, breaches of privacy could sometimes give rise to actions in defamation - for example, Australian Consolidated Press Ltd v Ettingshausen (unreported, C of A, 13 October 1993). The extension of truth alone (without the requirement to establish public interest) as a defence in all Australian jurisdictions effectively closed off this option. In 1972 Australia became a signatory to the International Covenant on Civil and Political Rights, article 17 of which provides for the protection of personal privacy, although this was not ratified by Australia until 1980. It should also be noted that the law of Australia differs from that of other nations in that an international treaty is not automatically incorporated into domestic law on its ratification, i.e. the ICCPR has no legal effect in Australia unless specifically given effect by a statute, although it may have some influence on judicial decision making. In 2001 the High Court, in ABC v Lenah Game Meats [2001] HCA 63, effectively opened the door to the recognition of a tort of privacy in Australia, although it stopped short of expressly stating that such a tort exists. The court stated that "Victoria Park does not stand in the path of the development of such a cause of action". Privacy law has been developing rapidly since the High Court's decision in Lenah Game Meats, both in response to the High Court's comments and to developments overseas. In Grosse v Purvis [2003] QDC 151 Skoien J. of the Queensland District Court relied on Lenah Game Meats to declare that an actionable right to privacy exists in Australian common law. The question of whether Australian law recognizes a right to privacy arose again in Doe v Australian Broadcasting Corporation [2007] VCC 281, a decision of the Victorian County Count concerning the unauthorised publication of the identity of a sexual assault victim. Applying the test proposed by Gleeson J. in Lenah Game Meats, that "disclosure ... would be highly offensive to a reasonable person of ordinary sensibilities", Hampel J. found that the plaintiff's privacy had been breached. Hampel J. also cited the test applied in the House of Lords decision in Campbell v MGN [2004] UKHL 22, that the plaintiff had "a reasonable expectation of privacy" in the circumstances. As at October 2007, none of the state Supreme Courts, nor Australia's Federal Court, have affirmed the declarations, in Doe and in Grosse, that there is an enforceable right to privacy in Australian common law. However, the Australian Law Reform Commission, in its Review of Australian Privacy Law, has proposed that a statutory cause of action be introduced into the Privacy Act. The ALRC has proposed that the test for breach of privacy should be the existence of a "reasonable expectation of privacy" in circumstances where the defendant's conduct is "sufficiently serious to cause substantial offence to a person of ordinary sensibilities". Other bodies, notably the NSW Law Reform Commission, have also expressed their support for the introduction of a privacy tort in Australia. 12. Right of reply and/or correction There is no right of reply or correction in Australian law, although some legislation allows for such a reply to mitigate any possible defamation. 13. Insults to government institutions and members There are no special causes of action for, or laws prohibiting, insults against the Head of State or other government officials or institutions. 14. Official secrecy and access to government-held information The Freedom of Information Act, 1982 (Cth), on which the FoI Acts of the States and Territories are based, gives members of the public a right of access to documents held by government departments and agencies. The Act provides that every person has a legally enforceable right of access to government documents unless the documents fall within one of the exempt categories. The exempt categories include documents affecting national security, international relations, defence, enforcement of the law, protection of public safety, the national economy, personal privacy and commercial secrecy, as well as Cabinet documents and internal working documents. A government agency may refuse to allow access to documents only if doing so would "substantially and unreasonably divert the resources of the agency from its operations or interfere substantially and unreasonably with the performance of the Minister of his functions". [7] Agency decisions against access to information must be accompanied by reasons, and appeals may be taken to the Administrative Appeals Tribunal and from there, to the Federal Court. Since 1982 a number of amendments have strengthened the Act. The 1983 Amending Act, among other changes, provided an additional "public interest" test for several of the exemptions. The common law also acknowledges that information obtained in breach of a duty of confidentiality to the government should only be restrained if the public interest so requires. [8] However, the user-pays principle also has permeated Freedom of Information and while exemptions from fees may be sought, the media in particular should not expect any relief. Charges for searching for documents, decision making time, getting permission to release private information etc all add to the cost and some bills for FoI applications have been know to run into hundreds of thousands of dollars. The Australian's then FoI editor, Michael McKinnon, sought to obtain documents under FoI 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). The Treasurer 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 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. The decision in McKinnon will make it even harder for the media to use FoI law to discover material that a government wants to keep secret. There are nearly 200 secrecy clauses in other federal acts which further inhibit the freedom of information legislation. For instance, under the Crimes Act, 1914 (Cth) a Commonwealth officer is guilty of an offence if he or she communicates information which that person has a duty to treat as a secret to someone who is not authorised to receive it (Section 79). A journalist who receives such information and publishes it is guilty of an offence if he or she had reason to believe it was communicated in contravention of this provision. It is a criminal offence to publish such information regardless of whether the disclosure of the information would harm the public. In Commonwealth v. John Fairfax and Sons Ltd [9], the High Court of Australia denied the government's request for a permanent injunction to prohibit two newspapers from publishing extracts from a book which disclosed a number of documents given to the book's authors by a government agent. The Court was not satisfied that restraint of publication was in the public interest; the likelihood that the Australian government would be embarrassed in its relations with other governments was not in itself a sufficient argument for the Court to issue an injunction. Although in the Spycatcher case the Australian courts refused to restrain publication of a book by a former high-ranking officer of the British Security Service which the UK courts had banned, this was based on a refusal to apply foreign law rather than on a more liberal approach, to freedom of the press. [10] Several federal laws prohibit the publication of material deemed to affect Australia's national security or defence. For example, it is a serious criminal offence to disclose the identity of a member of the Australian Security Intelligence Organisation (ASIO). In September 1988, the Attorney General obtained injunctions preventing information about the identity and activities of an ASIO officer being published in the magazine, The Eye. Australia established a "D Notice" system in 1952, whereby notices are issued to media organisations by the federal Defence, Press and Broadcasting Committee listing subjects concerning defence and security measures that editors are requested not to publish. Compliance with the "D Notice" system is voluntary; however, failure to comply is likely to be "punished" by removal of the publication from the government's list of publications which receive early notice of stories. The system has fallen into disuse since 1982 when the four current "D Notice" were published. In the last few years, successive governments have made attempts to revive the system, sometimes with punitive clauses for no-compliance. No revival has yet occurred and the last D-notice was issued in 1960. Four notices remain current - they restrict information on the capabilities if the Australian Defence Force; prevent revealing where Mr and Mrs Vladimir Petrov live (even though neither is alive); restrict publication of information about signal intelligence and communications; and restrict publication of information that identifies agents of or concerns the activities of the Australian Secret Intelligence Service (including ASIO). 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. Much of the new anti-terrorism legislation, particularly at the federal level, 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. 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 National Security Information (Criminal Proceedings) Act 2004 and the complementary National Security Information Legislation Act 2005 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. The Australian Security Intelligence Organisation Act was adopted in 2003 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, the government extended the ambit of the Act for a further five years. 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. 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. When they refused to cooperate, he nonetheless introduced the Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Bill 2007, which provides for the refusal of classification of material that directly or indirectly counsels a terrorist act. 15. Whistleblower protection The Commonwealth, and most states and territories have in recent years moved to offer protection to people in the public sector who "blow the whistle" on official corruption and other illegitimate activity. Some jurisdictions have Whistleblower Protection Acts and others have Protected Disclosure Acts. Tasmania and Western Australia are the last states to move in this area. Limited protection is offered for private sector disclosures in Queensland and South Australia. Where protective legislation is in place, however, there is no solid protection for the media. That is, the protection is only for whistleblowing through official channels. In recent years, through the prosecution of public officials like Alan Kessing and Desmond Kelly, allegedly for leaking secret information, the federal Government has sought to intimidate whistleblowers. Responses to questions in Parliament indicate that the government spent 2100 police man hours and over $2 million over a four year period seeking to identify public service whistleblowers. 16. Access to and disclosure of court documents and proceedings 16.1 Access to Court Hearings An important and as yet unsettled question is whether the media have standing to argue the public interest when a suppression order is proposed or requested in court. There are conflicting decisions. The Supreme Court of Western Australia has ruled that the media does have standing [12]; the Supreme Court of New South Wales has ruled to the contrary. [13] 16.2 Contempt of Court First, sub judice contempts, which are criminal in nature, involve the publishing of information either with the intent to interfere with the course of justice or which has a tendency to interfere with the course of justice. Examples of this form of contempt include publishing material that may prejudice jurors or the judge, influence witnesses or prejudge an accused's innocence or guilt. Second, contempt of court may be charged for publishing information which tends to interfere with the administration of justice as a continuing process. Such acts as scandalising a court, revealing jurors' deliberations, revealing what has taken place in court, revealing information concealed from those present at court proceedings and alleging without grounds that a judge is biased in favour of or against a particular litigant fall within this category. At issue is whether the material is such that it tends to impair public confidence in the judicial proceedings. Third, improper behaviour in court may be found to be contempt. As applied to journalists, this law may be invoked if a journalist refuses to give evidence on the ground that doing so would cause him to reveal the identity of confidential sources of information. [14] Finally, contempt may stem from breaching an undertaking to a court or disobeying a court order. A media organisation could be held in contempt if it published material in violation of a court order. A number of states and territories have proposed amendments to their contempt law that will make the media liable for any costs thrown away (abandoned trials, for example) as a result of contempt. And in Victoria a judge found that a journalist should pay his own fine for contempt of court. 17. Access and disclosure of legislative documents and proceedings The common law doctrine of contempt of Parliament allows the two Houses of Parliament to restrict the content and timing of publication of reports on their actions and the actions of their members and committees. Contempt of Parliament is any act or omission that directly impedes the function of Parliament. Contempt of Parliament includes publication of the following types of material:
18. Commercial secrecy and access to information held by private parties The courts have general jurisdiction to grant relief for a misuse of confidential information. In an action for breach of confidence, a plaintiff must show that a media organisation divulged information that had a "quality of confidence about it", that was imparted in circumstances importing an obligation of confidence, and that there had been an unauthorised use of the information to the detriment of the party communicating it. [15] Actions have been brought for disclosure of information regarding trade secrets; personal secrets (marital confidences and information about sexual conduct); tribal, cultural or religious secrets; and secret government information. Where a media organisation knows, discovers, or ought to have known that a person supplied it with information obtained in confidence, the organisation is liable for breach of confidence if it publishes the information. [16] There is a public interest defence where information divulged exposes an "iniquity" that is a crime, fraud or misdeed. [17] It is not clear whether the concept of "iniquity" is limited only to the disclosure of serious crimes. [18] It may be that the Australian courts will follow those English courts which have changed the defence into a balancing test. [19] 19. Prior restraints Injunction is available as a remedy in civil cases, and there is no general doctrine against prior restraints on publication. However, interlocutory injunctions (pending a full . hearing on the merits) are rarely issued in defamation actions. Courts are reluctant to grant injunctions which would have the effect of restraining the discussion of matters of public interest. [20] Courts are more willing to issue injunctions in actions involving information which the plaintiff claims is confidential, so long as the plaintiff has not made otherwise private affairs public by seeking publicity. [21] The publication of government information will be restrained only if it is established that non-publication is in the public interest. [22] Embarrassment to Australia's foreign relations is insufficient reason to restrain publication. [23] 20. Protection of sources With one exception, Australian law does not specifically protect the confidentiality of journalists' sources. In late 1997, New South Wales enacted the Evidence Amendment (Confidential Communications) Act which amended that state's 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 because it does not mandate protection of sources as the default position. In 2007, the Commonwealth amended its Evidence Act to introduce provisons similar to those of NSW. The Standing Committee of Attorneys-General has recently agreed to harmonise all Estate and trerritory Evidence Acts with provisions along the same lines. In the light of the conviction and sentencing of Gerard McManus and Michael Harvey for their refusal to reveal the confidential sources for an article embarrassing to a federal Minister, the Press Council has called on federal, state and territory governments to introduce strong laws prtective of journalists' rights to refuse to reveal their sources. It has cited recent amendments to the New Zealand Evidence Act and the putative Free Flow of Information Act, currently before the US Congress, as better models for such laws than the NSW provisions. Journalists mostly will get a sympathetic hearing in most courts during a defamation action where a plaintiff seeks to discover the identity of sources at interlocutory stages of the proceedings (the Newspaper Rule). There is no protection at trial however if a court rules that a journalist should reveal a source. Journalists generally are unable to claim privilege to avoid disclosing their source of information if they are called before courts, Royal Commissions or parliamentary inquiries. To keep the confidence in such a circumstance the journalist will have to commit contempt of court and suffer the consequences which may include a fine or even a jail term. Tony Barrass was imprisoned and ultimately fined in a Western Australian case in 1989-1990 (DPP v. Luders, unreported, District Court of WA No. 177 of 1990). In March 1992, Joe Budd was jailed for failure to disclose his sources for a story which had resulted in a defamation suit against the Brisbane 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. In 2006-2007, Herald Sun journalists McManus and Harvey were convicted and fined for refusing to name their sources at the preliminary stage of the trial of alleged whistleblower Desmond Kelly. There is the potential for similar instances of a journalist being placed in the position of following the Code of Ethics rather than a direction of the court, e.g. John Fairfax & Sons Limited v. Cojuangco (1987) 8 NSWLR 145, etc. In the Cojuangco case, the defendant had to withdraw its reliance on the defence of qualified privilege, rather than have its reporter required to reveal a confidential source, even in the early stages of the litigation. 21. Restrictions on offensive language against identifiable groups Australia adopted the Racial Discrimination Act in 1975 which makes discrimination on the grounds of race, colour, descent and national or ethnic origin unlawful. Clause 7 of the Australian Press Council's Principles states that "a newspaper should not place gratuitous emphasis on the race, nationality or colour of individuals or groups". The various codes of ethics that apply to journalists contain similar provision. The Commonwealth in 1995 enacted the Racial Hatred Act that extended the coverage of the Discrimination Act to allow people to complain about racially offensive or abusive behaviour. The Racial Hatred Act provides exceptions for fair and accurate reports on matters of public interest. The provisions are administered by the Human Rights and Equal Opportunity Commission which tries to resolve complaints amicably. If the complaint isn't resolved the complainant may mount a case in the Federal Court for compensation. The States and territories has also moved to outlaw discrimination and vilification, with legislation administered by their Equal Opportunity Commissions. New South Wales passed the first law in Australia to declare vilification on the ground of race unlawful. Under Section 2OC(I) of the Anti-Discrimination (Amendment) Act, 1989, it is "unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons, on the ground of the race of the person or members of the group". There are three categories of acts that are exempted from civil liability, the one of primary relevance to the media being "a fair report of a public act". The subjectivity inherent in such a notion of fairness leaves room for the media to report without close attention to the potential for promoting negative stereotypes and inciting ridicule or contempt. 22. Blasphemy, obscenity and protection of public morals Publication of an "obscene libel" is a common law misdemeanour. A number of state and territories have modified the common law with their own codes on the obscene and/or offensive publications. Australia has adopted the English test for determining whether a publication is obscene: "whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort might fall". [24] In addition, the courts assess whether the material is offensive or indecent in the sense that it outrages public decency, and whether it offends community standards of decency in the circumstances and in the manner in which it is presented. Whether the material is distributed to the general public or only to a small, distinct group is also a relevant factor. Though most prosecutions for libel deal with sexual matters, depictions of violence, cruelty and harmful drug taking may be found libellous as well. Most states and territories have created statutory offences to supplement the common law misdemeanours. Several have established classification schemes, which may operate to prohibit or restrict access to the displaying and advertising of printed material. The legislation typically refers to "obscene or indecent" material, which is interpreted to mean offensive to contemporary community standards. The censorship laws administered through the Office of Film and Literature Classification place the burden on the publisher of a potentially obscene work to first submit it to the censorship authorities and to obtain an appropriate classification. The OFLC administers the uniform classification system applying to printed material in NSW, South Australia, Victoria, The ACT and the Northern Territory. Queensland, Tasmania and Western Australia have their own classification schemes. It is also a common law offence to publish blasphemous material, meaning material that is offensive to the Church of England. The manner in which a comment is made, rather than the nature of the comment, determines whether it is blasphemous. For instance, a comment denying or attacking the fundamental doctrines of Christianity will not be an offence if expressed in a temperate manner. There have been no prosecutions for blasphemy in Australia for many years. In 1992, the New South Wales Law Reform Commission recommended abolition of the crime of blasphemy. [25] 23. Restrictions on advertising The Smoking and Tobacco Products Advertisements (Prohibition) Act, 1989 (Cth) prohibits cigarette and tobacco advertising in the print media. The ban has been criticised as discriminatory in that it exempts advertising in newspapers printed or published outside of Australia which are brought into Australia for sale, free distribution or personal use. In 1991, the federal government introduced legislation to proscribe political advertising on radio and television. This attracted widespread opposition, not only by political parties but also the Human Rights Commission and the Press Council. The Bill was amended to restrict advertising only during election and referendum campaigns. The High Court invalidated the legislation in August 1992. [26] Conclusion In its long and unbroken traditions as a democracy, Australia has been well served by its press. The Australian press' ethical standards and objectivity are equal to the best in the world. Concern in recent years about its financial state have been allayed to some extent, and a number of papers continue to compete in the national market, although most regions have only one main paper. Concerns about the increasing concentration of press and cross-media ownership have been addressed in part by application of the anti-trust provisions of the Trade Practices Act, restrictions on cross media ownership in the Broadcasting Services Act, the considerable diversity and internal competition between publishing groups, and the growing proliferation of electronic sources of information and analysis. It is nevertheless unfortunate that competition from this proliferation has had the effect of reducing the number of newspapers in Australia. Afternoon newspapers have been particularly affected. Only the two largest cities having a second newspaper. While there are two national newspapers, the loss of titles, of separate editorial perspectives and of employment is to be regretted. It is to be hoped that the growth of the specialised and local press can balance this. Good, serious reporting continues, although some journalists argue that less investigative work is being done than previously. On the other hand, it is pointed out that the mass media (including radio and television) have uncovered corruption and mismanagement in government as well as big business, under both conservative and Labour governments. The defamation and contempt laws, and especially the number of successful defamation suits by public figures, undeniably has had some chilling effect on reporting and editorials, particularly by mid-sized and smaller papers. It probably has not had a great impact on quality investigative reporting, owing to the fact that investigative reporters generally are committed to ascertaining and double-checking the truth of their stories. The Freedom of Information Act should work better, as obtaining documents can often involve substantial costs and delays and even the initiation of legal action. The greatest threat to media freedom is the absence of an express guarantee of freedom of expression, press freedom or access to information in the federal constitution or any of the state constitutions. Thus, an aggregation of otherwise well meaning measures, as well as those aspects of statutory and common law which come from a more restrictive era, can deleteriously effect the full exercise of press freedom in Australia. FOOTNOTES
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