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Tuesday, December 22, 2009

Who is a journalist? Yes it will matter...

This will be a issue of some significance when the Federal Freedom of Information Reform (Amendment) Bill 2009 passes Parliament (again, hopefully) next year.

The companion Exposure Draft Federal Freedom of Information (Fees and Charges) Amendment Regulation 2009 proposes that where an agency is reasonably satisfied that the applicant is a journalist and the application is made in connection with the applicant's activities as a journalist there will be no charge for the first five hours of time spent in dealing with the application.

(A question not quite on topic is whether "journalists" should be singled out for this concession. What about others who might use the Act to seek non personal information, such as researchers and academics, or interest groups or think tanks that might struggle to come within the same concession for non profit organisations (defined as an organisation not carried on for the profit or gain of its individual members)? Journalists and the media play an important Fourth Estate role on the public's behalf in pursuing government accountability, and the proposed concession rightfully recognises this. It's passage would rid us of the famously narrow interpretation of the public interest concession for journalists in the Peatling case.

However in the context of an act focused on citizen rights, there is also a case for consideration of a broader concession for any applicant not seeking information for a commercial purpose, where for example, the making of the application is for the purpose of
access to documents that would increase "scrutiny, discussion, comment and review of the Government's activities", words used in the proposed new objects section of the Act.

Or on a grander scale, should Canberra follow Tasmania's lead and abolish charges altogether, simply retaining an application fee? Such an approach would be consistent with the proposition advanced by the Gov 2.0 Task Force that government information should be available free as a public resource. Then there was the ALRC recommendation in 1995 that charges for anyone should be based only on documents released. The way the Government has framed these questions since March 2009 has limited the public discussion of other possibilities and options.)

Back on topic, if they are to be accorded special treatment, the Exposure Draft regulation contains no definition of journalist. There won't be a problem for those employed by a media organisation who apply on company letterhead or who are well known and established names. But what about others such as freelancers, authors, and ahem, bloggers and the emerging school of citizen journalists?

Leaving open to " reasonable satisfaction" of an agency, who is to be eligible and who isn't, and what constitutes "activities of a journalist" will surely lead to differences in the interpretation and application of the provision. Some parameters should be set either in the law or in binding pronouncements by the Information Commissioner.

However the Commissioner's proposed powers do not extend this far. There is nothing relevant to their exercise in connection with charges in the Exposure Draft regulation. The Reform Bill states
(proposed Section 93A) the Commissioner " may " issue guidelines for the purpose of performance of a function, or the exercise of a power under this Act, and agencies must have regard to any guidelines issued. However the Explanatory Memorandum points out the power granted to the Commissioner is discretionary, so guidelines on issues concerning charges might never emerge. Even if they do, the Memorandum states "It is not intended that the guidelines have binding effect."

The issue of who is a journalist is a live one also in connection with the proposed Federal shield law for journalists ( which contains no definition) and Government consideration of the Australian Law Reform Commission Report on privacy laws, and continuation of the media exemption.

For FOI purposes however we need a workable, consistent approach that defines a journalist by reference to function not status, and recognises new media and all the forms of journalism that are emerging, including bloggers. One precedent, if we stick with journalists in and others out, would be to adopt the definition recently agreed by the US Senate Judiciary Committee for Federal shield law protection purposes, as those “with the primary intent (at the time information was sought) to investigate events and procure material in order to disseminate to the public news or information...” This would cover those employed by media organisations, plus bloggers, freelancers and any other person involved in disseminating information to the public.

Submissions on the Exposure Draft close on the wonderfully convenient 11 January- just as a few public servants return from summer holidays- so if you have a view let them know. I don't imagine Australia's Right to Know think much of the idea of bloggers getting a guernsey for charges concessions, given News Limited's boss John Hartigan 's view that the the blogosphere is all eyeballs and no insight, and far inferior to the denizens who stalk the corridors of the Daily Telegraph and other News publications.


  1. Anonymous12:34 pm

    Thanks Peter.

    In light of this post, you may be interested in a pair of landmark cases that our Supreme Court of Canada issued yesterday. The SCC recognized a new defence of "responsible communications on matters of public interest" in our law of defamation. The Court held that all responsible communication on matters of public interest should be protected irrespective of the status of the communicator. On what is in the "public interest," the Court noted only "government and political matters" are protected under Australian law and opted for a broader (though more ambiguous) boundary on what types of communication are protected under this new defence.

    The cases are here:

    Enjoy, and please keep up the great work!


  2. Thanks Dan, I'll certainly have a look after the break.I think the UK Courts have accepted evidence of responsible journalism as a defence or mitigating factor. Our media law types have had no success in getting something along these lines accepted here.

    Enjoy that snow and ice!. From sunny Sydney( the other one-not Nova Scotia)