KIM WILLIAMS: Freedom of speech is a fundamental pillar of democracy and the shield provisions that apply to all journalists under the Privacy Act from its enactment in 2000 are fundamental to journalists doing their job. If those rights are threatened, we threaten the very fabric of democratic life in Australia, if you value independent examination, interrogation and review of all of the processes of our democratic life. These are not mild matters. They're being painted as if in fact this is just some mild action. It's not a mild action. This is action of profound seriousness.....I think most people who describe this as reform lite are ignorant of the shield provisions that relate to the Privacy Act. I think they're quite ignorant.....No-one is talking about removing shield provisions.
Williams' musing that journalists seem to require and deserve a privacy free zone in order to protect the fabric of democracy is inconsistent with what media organisations and journalists have been telling us for years: that they respect privacy, can judge where the public interest lies, and we best leave it to them to get on with it and to get it right.
The exemption from the Privacy Act provisions that relate to the obtaining, keeping and disclosing of personal information by a media organisation ‘in the course of journalism’ is, and always has been, conditional.
It's just that the conditions aren't onerous although clearly to the media's liking: the organisation must make a public commitment to observe standards of privacy, and the standards must be published in writing.
The reality is that print media organisations are subject to self made industry rules regarding privacy, enforced as weakly as they choose.
Everyone who has looked at this closely except media organisations and some journalists consider it isn't good enough.
The Australian Law Reform Commission after 28 months research and consultation concluded for example in 2008 (as set out here in Chapter 42 of the report) that in the absence of a definition, ‘in the course of journalism' is too broad and capable of extending the exemption beyond the news and current affairs functions of the media; the existing self regulatory scheme conducted by the Australian Press Council lacks key criteria and there is no independent assessment of the standards; the model itself is inadequate and lacks strong enforcement mechanisms. It recommended modest changes.
The Finkelstein inquiry looked into standards more broadly and concluded there is a general problem, that the media had failed in its self regulatory efforts and that there is no persuasive evidence that it can or will remedy the situation. The assessment was based largely on evidence from the Australian Press Council and lessons drawn directly from history. It recommended a statutory body.
The Convergence Review concluded Finkelstein got the diagnosis right but thought the media should have another crack at improving things itself before the big stick came out.
Former Prime Minister Paul Keating put the detailed case in 2010 for the media to stop sheltering from privacy behind the cloak of the Fourth Estate, citing in support Ken McKinnon former head of the APC, David Salter long time producer of Media Watch, journalists such as Jack Waterford and academics such as Denis Muller to mention just a few. (Richard Ackland was sounding a little Keatingesque last week: "The self-righteous bloviating from press interests, and the shrill coverage from News Ltd papers in particular, leads to the suspicion that Senator Conroy can't be far wrong with his tiny package of media reforms.")
Interest in the media in this issue since the ALRC report in 2008, discussion of the tweaking proposed by the ALRC, or a recognition that there is an issue that requires consideration:
absolute zero.
Government marks for informing public discussion, putting ideas out there, acting in good time: the same.
The government is now proposing that news media organisations remain outside the provisions of the Privacy Act on condition they comply with adequate standards administered by a self regulatory body such as the Australian Press Council. An independent statutory officer would declare whether it was up to the job based on a checklist of factors. The statutory officer would keep an eye on how it goes with authority to in certain circumstances revoke a declaration authorising a self-regulatory body.
How threatening to the fabric of democracy is that?
Maybe Williams is concerned to some degree that if the legislation goes forward the definition of a news media organisation, somewhat in line with the ALRC recommendation would exclude from the Privacy Act only those parts of the News Ltd empire involved in news or current affairs activities, clearly leaving the rest subject to some scrutiny by the Privacy Commissioner?
The essential elements of the proposed scheme are:
1. A ‘news media organisation’ will only continue to qualify for the ‘Journalism’ (both terms defined) exemption from the privacy obligations imposed under the Privacy Act 1988 , if it is a member of a declared ‘news media self-regulation body’ and has not had its rights as a member suspended.
2. The Public Interest Media Advocate has powers to declare a body a 'news media self-regulation body' and to revoke a declaration, but not otherwise to be involved in its affairs.
3. In making a declaration the PIMA must have regard to a number of matters including the extent to which the body has arrangements in place to deal effectively with complaints; and the extent to which the body corporate’s standards deal with privacy, fairness, accuracy and other matters relating to the professional conduct of journalism.
More detail from the bill follows. The reference to 'community standards' (indicated in bold) as a relevant matter is vague and should be sharpened up or dropped. And yes the revocation provisions could do with some work.
But it's not the end of democracy or anything like it. Rather a strong pull and some push to get the media to take privacy and self-regulation seriously.
Extracts from News Media (Self- Regulation) Bill
(2) The PIMA must not make a declaration under subsection (1) in relation to a body corporate unless:
(a) the body corporate is a company that is registered under
Part 2A.2 of the Corporations Act 2001 ; and
(b) the body corporate is a company limited by guarantee;
and
(c) the body corporate has a news media self-regulation
scheme; and
(d) the only circumstances in which the body corporate has
the power to:
(i) suspend a news media organisation member’s rights
as a member of the body corporate; or
(ii) expel a news media organisation member from the body
corporate;
are circumstances that involve:
(iii) a failure by the member to pay a fee or charge payable
by the member to the body corporate; or
(iv) a breach of a remedial direction given to the member by
the body corporate under the news media self-regulation
scheme.
Matters to which the PIMA must have
regard
(3) In deciding whether to make a declaration under
subsection (1) in relation to a body corporate, the PIMA must
have regard to the following matters:
(a) the extent to which the body corporate’s news media
self-regulation scheme has been, or is likely to be,
effective (including whether the body corporate’s complaints
handling processes and procedures have been, or are likely to be,
carried out in a timely manner);
(b) the extent to which standards formulated under the body
corporate’s news media self-regulation scheme deal with
the following:
(i) privacy;
(ii) fairness;
(iii) accuracy;
(iv) other matters relating to the professional conduct of
journalism;
(c) the extent to which those standards reflect community
standards;
(d) the extent to which the body corporate’s news media
self-regulation scheme provides for the body corporate to
publish, on the body corporate’s website:
(i) the standards referred to in paragraph (b); and
(ii) statistics relating to compliance with the standards;
and
(iii) periodic reports relating to compliance with the
standards; and
(iv) the results of investigations, conducted by the body
corporate under the scheme, of breaches of the standards; and
(v) other documents of the body corporate that are relevant
to the scheme;
(e) the extent to which the body corporate’s news media
self-regulation scheme provides for remedial action to be
taken by the body corporate, including the power to:
(i) give remedial directions to news media organisation
members; and
(ii) suspend a news media organisation member’s rights
as a member of the body corporate in circumstances that involve a
breach of such a direction by the member; and
(iii) expel a news media organisation member from the body
corporate in circumstances that involve a breach of such a
direction by the member;
(f) whether complaints can be made to the body corporate, in
relation to breaches of the standards referred to in
paragraph (b):
(i) free of charge; and
(ii) without the requirement that the complaint be first made
to, or considered by, a news media organisation;
(g) the extent to which decision-making under the body
corporate’s news media self-regulation scheme is
independent from:
(i) news media organisations; and
(ii) persons who are in a position to exercise control of
news media organisations; and
(iii) persons who have significant influence over news media
organisations; and
(iv) the Commonwealth Government; and
(v) the governments of the States; and
(vi) the governments of the Territories; and
(vii) authorities of the Commonwealth; and
(viii) authorities of the States; and
(ix) authorities of the Territories;
(h) both:
(i) the extent to which public awareness programs relating to
the body corporate’s news media self-regulation scheme
have been, or are likely to be, conducted by the body corporate;
and
(ii) the extent to which such programs have been, or are
likely to be, effective;
(i) the extent to which the body corporate has arrangements
to conduct regular independent reviews of the following
matters:
(i) the body corporate’s news media
self-regulation scheme;
(ii) the standards referred to in paragraph (b);
(iii) the implementation of the body corporate’s news
media self-regulation scheme;
(j) the extent to which the body corporate consulted the
Privacy Commissioner in relation to the formulation of the body
corporate’s news media self-regulation scheme;
(k) the extent to which membership of the body corporate is
open to:
(i) all news media organisations; and
(ii) other persons whose activities consist of, or include,
news or current affairs activities;
(l) the extent to which the body corporate’s membership
processes are open, transparent and fair;
(m) whether the funding arrangements for the body corporate
are sustainable for the body corporate;
(n) whether the fees and charges payable by news media
organisation members to the body corporate are reasonable for those
members;
(o) the need for freedom of expression;
(p) the need to protect individual privacy;
(q) the need to minimise the number of news media
self-regulation bodies;
(r) such other matters (if any) as the PIMA considers
relevant.
(4) If:
(a) before 28 April 2013, a body corporate requests the
PIMA, in writing, to make a declaration under subsection (1)
in relation to the body corporate; and
(b) the request is accompanied by the information that is
reasonably necessary for the PIMA to decide whether or not to make
the requested declaration;
the PIMA must take reasonable steps to
ensure that:
(c) before 25 June 2013, the PIMA decides whether or not
to make the requested declaration; and
(d) if the PIMA decides to make the requested
declaration—the requested declaration takes effect before
28 June 2013.
Declaration not disallowable
(5) A declaration made under subsection (1) is a
legislative instrument, but section 42 (disallowance) of the
Legislative Instruments Act 2003 does not apply to the
declaration.
(1) Before making a declaration under subsection 7(1) in
relation to a body corporate, the PIMA must:
(a) consult the Privacy Commissioner; and
(b) cause to be published on the Department’s website a
notice:
(i) setting out the draft declaration; and
(ii) inviting persons to make submissions to the PIMA about
the draft declaration within 14 days after the notice is published;
and
(c) consider any submissions that were received within the
14-day period mentioned in paragraph (b).
(2) The notice mentioned in paragraph (1)(b) must also
set out:
(a) the body corporate’s news media
self-regulation scheme; and
(b) the initial views of the PIMA concerning the matters set
out in paragraphs 7(3)(a) to (r), so far as those matters relate to
making the declaration.
(1) A declaration made under subsection 7(1) takes
effect at the start of the day specified in the declaration.
(2) The day specified in the declaration must be later than
the day on which the declaration is registered under the
Legislative Instruments Act 2003 .
Mandatory revocation
(1) If a declaration is in force under subsection 7(1)
in relation to a body corporate, the PIMA must, by writing, revoke
the declaration if:
(a) the body corporate is not a company that is registered
under Part 2A.2 of the Corporations Act 2001 ; or
(b) the body corporate is not a company limited by guarantee;
or
(c) the body corporate does not have a news media
self-regulation scheme; or
(d) the body corporate has the power to:
(i) suspend a news media organisation member’s rights
as a member of the body corporate; or
(ii) expel a news media organisation member from the body
corporate;
in circumstances that do not involve:
(iii) a failure by the member to pay a fee or charge payable
by the member to the body corporate; or
(iv) a breach of a remedial direction given to the member by
the body corporate under a news media self-regulation scheme
of the body corporate.
(2) Subsection (1) has effect subject to
subsection (6).
Discretionary revocation
(3) If:
(a) a declaration is in force under subsection 7(1) in
relation to a body corporate; and
(b) the PIMA has reasonable grounds to believe that, since
the declaration was made:
(i) there has been a significant change in relevant
circumstances; or
(ii) there has been a change in relevant community
standards;
the PIMA may, by writing, revoke the
declaration.
(4) In revoking, under subsection (3), a declaration in
relation to a body corporate, the PIMA must have regard to the
following matters:
(a) the need for freedom of expression;
(b) the need to protect individual privacy;
(c) the matters set out in paragraphs 7(3)(a) to (n);
(d) such other matters (if any) as the PIMA considers
relevant.
(5) Subsection (3) has effect subject to
subsection (6).
Replacement declaration
(6) The PIMA must not revoke, under subsection (1) or
(3), a declaration relating to a body corporate unless the PIMA has
taken reasonable steps to ensure that a declaration under
subsection 7(1) relating to another body corporate will be in
force at least 6 months before the revocation takes effect.
Revocation not disallowable
(7) An instrument of revocation under subsection (1) or
(3) is a legislative instrument, but section 42 (disallowance)
of the Legislative Instruments Act 2003 does not apply to
the revocation.
Before revoking, under subsection 10(3), a declaration under
subsection 7(1), the PIMA must:
(a) consult the Privacy Commissioner; and
(b) cause to be published on the Department’s website a
notice:
(i) setting out the draft instrument of revocation; and
(ii) inviting persons to make submissions to the PIMA about
the draft instrument of revocation within 28 days after the notice
is published; and
(c) consider any submissions that were received within the
28-day period mentioned in paragraph (b).
(1) A revocation under subsection 10(1) or (3) takes
effect at the start of the day specified in the instrument of
revocation.
(2) The day specified in the instrument of revocation must be
later than the day on which the instrument is registered under the
Legislative Instruments Act 2003 .
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