2012 press freedom report - executive summary

For more information contact: Karol Foyle on 0411 757 690 or 02 9333 0928

The Media, Entertainment & Arts Alliance - the people who inform and entertain

Kicking at the cornerstone of democracy: The state of press freedom in

Australia, 2012

Media, Entertainment & Arts Alliance

The Media Alliance’s annual press freedom report is the most comprehensive survey of media law and

regulation in Australia. The report covers all aspects from the recent debate over press regulation to

shield laws for journalists and whistleblower protection, privacy, defamation, media ownership and

spin. The report also has an in-depth look at developments in media law in New Zealand and the Asia-

Pacific Region.

Executive Summary

Regulation

There has been an extensive debate about the need for further regulation of the press and news

broadcasting in Australia, partly to reflect the changing nature of the industry but also as a result of

political pressure following the phone-hacking scandal in the UK. The Media Alliance played a

prominent part in this discussion, making a detailed submission to the Independent Media Inquiry

chaired by retired federal court judge, Ray Finkelstein. The report finds that the principle of media

self-regulation to be fundamental to the preservation of a free and independent news media and is

disappointed by the missed opportunity by both the Finkelstein Inquiry and the Convergence Review

to properly discuss the future health of the news industry in Australia.

Secrecy

More than two years after the Australia Law Reform Commission released its report: Secrecy Laws and

Open Government in Australia, this country still has more than 500 secrecy provisions in 176 pieces of

legislation on Commonwealth and State statute books including 358 criminal offences attracting a

broad range of penalties from fines to up to 10 years in prison. The Media Alliance supports the ALRC

in its recommendation that secrecy provisions in the Crimes Act 1914 should be repealed and replaced

with a general secrecy offence that is limited to disclosures that clearly harm the public interest.

Freedom of Information

In an international FoI survey, the Commonwealth FoI regime was recently ranked at number 39 out

of 85 countries rated. Among the reasons given for Australia’s relatively poor performance were the

lack of a constitutional right of access to information and widespread exemptions. This report

examines the gradual reform of Freedom of Information regimes around Australia, giving a state-by-

state round-up of FoI regimes and providing commentary and criticism from both an academic and

user perspective.



Confidential Sources

Shield law reform has continued during 2012, but the push to protect journalists’ sources is getting

bogged down in the argument over who is a journalist and what constitutes journalism. While

Commonwealth legislation passed in 2010 seeks to protect anyone engaged and active in the

publication of news, the NSW legislation which followed narrowed the definition to “a person engaged

in the profession or occupation of journalism in connection with the publication of information in a

news medium”. Similar definitions appear set to be adopted in shield laws being drafted in Victoria

and Western Australia. Meanwhile the experience of a number of journalists who have been

pressured by star chambers and courts to reveal the identity of their sources underlines the urgency of

getting this legislation right and ensuring that journalists are protected in all states and territories.

Whistleblower protection

Despite repeated pledges, a House of Representatives report recommending reform and a reported

deal between the Gillard government and Independent MP, Andrew Wilkie whereby the government

pledged whistleblower reform in return for Mr Wilkie’s support in the House of Representatives, we

have yet to see any further moves to introduce legislation protecting public service whistleblowers.

Many observers now believe the present administration does not have the resolve to follow through

on its promises in this area. A draft Public Interest Disclosure Bill, as unveiled in 2010 to widespread

approval from the media, and a deadline of June 2011 set for its introduction into federal parliament,

but this passed as did another promised deadline of the end of 2011. The report also details various

states’ reforms in this area.

Star Chambers

Virtually every state in Australia now has an extra-judicial body tasked with investigating corruption in

the public service and/or police. These bodies tend to have extraordinary coercive powers including

the power to compel witnesses to attend, sometimes in secret, the power to compel a witness to

produce a document or “thing” on the grounds it may help the investigation. Most of these anti-

corruption bodies can also compel a witness to answer questions, while some can deny witnesses

legal representation at the discretion of the commissioner involved. The report provides a detailed

state-by-state breakdown of the various anti-corruption bodies, detailing their coercive powers. There

is also a perspective provided by two award-winning investigative journalists which calls for these

bodies’ coercive powers to be reviewed.

Privacy

In July last year, in the wake of the UK phone-hacking scandal, the government announced it was

developing an issues paper to discuss the possible introduction of a statutory cause of action for

serious invasion of privacy. In September, the department of Prime Minister and Cabinet (PM&C)

released the paper, titled A Commonwealth Statutory Cause of Action for Serious Invasion of Privacy

and called for submissions. The Media Alliance submission has questioned the need for further

legislation, but suggests that any legislated privacy protection should be accompanied by a

countervailing right to free speech which should hold equal weight. The report canvasses the



arguments on both sides of the issue, looking at the existing privacy protections offered by codes of

practice for broadcasting, the Journalist Code of Ethics, together with existing laws of trespass, breach

of confidence, defamation, data protection and surveillance laws.

Access to detention centres

In October last year the department of Immigration and Citizenship released a new “deed of

agreement” which it now required journalists to sign before they are allowed to visit detention

centres and talk to asylum seekers. Among a raft of restrictions, journalists are forced to hand over

their cameras and tape recorders for scrutiny by a DIAC officer, they are to be accompanied inside a

detention centre at all times by a DIAC official and their visits can be terminated at any time. The

Media Alliance has criticised this deed as overly restrictive and is leading a public campaign to

persuade the department to rethink the policy.

Anti-terror and national security media arrangements

Following a mix-up over the reporting of a security operation in Melbourne in 2009, the then attorney-

general, Robert McClelland, convened a discussion group comprising representatives of major media

organisations, including the Media Alliance, to discuss the issue. The group met in Sydney in April 2011

and agreed that while a formal policy was not required, that media organisations and security

agencies should maintain high-level contacts so that in the event of any future situations concerning

the reporting of national security issues, both sides are able to brief each other and avoid any danger

to the public while also preserving press freedom and editorial independence.

Spin

As the number of working journalists in Australia declines, the number of professional media

managers being employed by private and public sector organisations grows. This chapter looks at the

chilling effect this has on free speech and warns of the danger of the “comment cycle”, where opinion

is increasingly replacing factual stories in both print/online publications and in broadcast news

bulletins.

Defamation

A detailed analysis of the attempts to develop uniform defamation laws across all jurisdictions. This

chapter analyses the recent review of the NSW Defamation Act which will be taken as a model for all

states and territories, canvassing various reform proposals pertaining to issues such as the fair

comment/honest opinion defence, the role of juries in defamation cases, proposed caps on damages

and the effect of publication via the internet to defamation law.

Suppression orders

Last year, more than 1000 suppression orders were issued in courts around Australia (that we know

about) despite efforts to develop uniform legislation across states and territories governing the way

such orders are issued, their scope and duration. There also appears to have been little progress on a



plan to establish a national register of suppression orders so that journalists are automatically made

aware of information that is subject to a non-publication order. This chapter presents a perspective

from two long-standing court reporters detailing the problems they face in navigating their way

around suppression orders as they struggle to keep the public informed of legal matters of public

interest.

Copyright

Breach of copyright has the potential to undermine free speech in Australia by damaging the business

models on which commercial news organisations depend. In March this year, Attorney-General Nicola

Roxon announced the terms of reference for an inquiry into copyright exceptions in the digital

environment. This chapter examines the potential outcomes of such a review and recounts some

major cases in the copyright arena.

Media ownership

Australia has one of the highest concentrations of media ownership in the world, with 98 per cent of

newspaper circulation controlled by the top three newspaper companies. Meanwhile there is

evidence that the digital revolution is doing little to ameliorate this – 11 of the top 12 news websites

are owned by one or another of the major media organisations. The recent report of the Convergence

Review panel has suggested possible reforms to ownership laws in Australia, establishing safeguards

to guarantee a minimum number of “voices” in any one market and introducing a public interest test

to rule on future mergers and acquisitions.

The ABC and SBS

Australia’s public broadcasters face considerable challenges in continuing to produce high-quality

news and current affairs content while satisfying increasing demands for 24-hour news across a range

of platforms with little or no extra funding. This chapter is a passionate defence of public broadcasting

by NSW Stateline presenter Quentin Dempster, delivering a manifesto for the future health of the ABC

and SBS and warning of the potentially dire consequences of under-funding as the public broadcasters

struggle to hold their place in an increasingly competitive digital environment.

Press Freedom in New Zealand and the Asia-Pacific

In varying degrees of intensity, many of our neighbours face similar issues as those detailed above.

Drawing on expert testimony from journalists, lawyers and academics from New Zealand and around

the Asia-Pacific, these chapters discuss the press freedom landscape across the region, including an

exclusive analysis of the fledgling attempts to establish a free and independent media in Burma as that

country tries to reform and open up to the rest of the world.

Kicking at the Cornerstone of Democracy is the most detailed and wide-ranging examination of the

factors affecting press freedom in Australia and the region. This report is required reading for

anyone who believes that a strong, independent and diverse news industry is a key guarantor for

democracy.

2012 press freedom report - executive summary

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