'Dire year' for press freedom in Australia but you won't read about it in the media

Two reports on press freedom -The Freedom House world wide Freedom of the Press 2015 Report and the Media, and the Entertainment & Arts Alliance (MEAA) 2015 annual report on the state of things in Australia Going After Whistleblowers, Going After Journalism  - present different assessments of the situation here reflecting differences in the depth of inquiry and when the surveys were undertaken.  

The Freedom House report provides a worldwide snapshot based on a survey undertaken last year. The MEAA report focuses on Australia with some coverage of the regional big picture, provides more comprehensive examination of issues and includes developments up to publication on 1 May. 

Freedom House concludes generally "conditions for media freedom deteriorated sharply in 2014 to their lowest point in more than 10 years." 

Australia is rated overall "Free" and receives a numerical score of 22 on a scale of 0 (the most free) to 100 (the least free), about where it has hovered since 2007. In the first survey in 1995 Australia's score was 7. There is no Australia country report.The score puts Australia at 31 in the global rankings (Report p 22). New Zealand with 19 points is at 26.

CEO Paul Murphy in the MEAA report describes "a dire 12 months for the state of press freedom in Australia." 

The report (in the first 47 pages) highlights concerns over the government’s three tranches of national security laws that were passed by the Parliament with by-partisan support, the failure to act to improve whistleblower protection, the undermining of journalist shield laws and Freedom of Information developments.

The section on Freedom of Information (p46) recounts matters raised in submissions to the Federal and NSW governments and reiterates the need for a comprehensive review of the kind Alan Hawke wasn't in a position to undertake.

Looking ahead the MEAA sees

The way forward from this point is a complete, comprehensive review of Australia’s counter-terror legislation and a concomitant review of Australia intelligence, surveillance and law enforcement agencies. The aim should be to introduce meaningful media exemptions from the excesses of these laws so that the vital work of public interest journalism can continue unheeded.

There must also be a rethinking of the role of public disclosure, freedom of information, open government and whistleblowers in our society so that these things are not feared, undermined and even attacked but are embraced as a necessary part of a healthy functioning democracy. To do otherwise means the war on journalism that has become a subset of the war on terror is fought and lost on the home front. And that is too dreadful an outcome to contemplate.” 

But if press coverage is any guide the media is struggling to get this message across. Two Australian outlets carried something about the Freedom House report but neither found the pages that included Australia's score or global ranking so this didn't get a mention in either. 

The MEAA report (dry as dust IMHO) attracted the attention of the Communist Party Of Australia Guardian but that seems to be it.

Maybe the woes of the media wouldn't have much impact on public thinking in any event given media types aren't rated highly.

In The Roy Morgan 2015 Survey of public opinion concerning ethics and honesty in the professions, Newspaper journalists came in at 19 of 30 ( rated highly by 18%), Talk back radio announcers at 21 (16%), and TV reporters 22 (15%).

At least ahead of State MPs 23 (14%) and Federal MPs 25 (13%).

Nurses as usual came in tops - 92%. 

Addendum: those reports don't feature but the SMH editorial "Free speech and democracy v metadata and Telstra" explains why it's not just journos who should be concerned about our metadata:

..the new laws give the authorities a comprehensive picture of the physical movements, interests, contacts, connections and digital trails of everyone in the country who has a smartphone or uses the internet. The implications are vast, and not just for private citizens who are uneasy about the potential for misuse of a vast digital dossier that collects their every move...
The Herald believes the new laws will have a chilling effect on public interest journalism which often relies upon leaks of government information by public servants. As it stands, whistleblowers have no protection at law, even when their leaks are indisputably in the public interest. Disclosing government information of any kind is a crime punishable with two years jail. Exposing official secrets will get you up to seven years. So whistleblowers, including those attempting to remedy official misdeeds, have only had the secrecy of their communications with journalists to protect them from prosecution.
Now, armed with straightforward access to two years of the communications data of everyone including public servants, MPs and journalists, the Australian Federal Police and related agencies will find it relatively simple to identify the source of leaks, effectively gagging bureaucrats who might otherwise have made significant revelations in the public interest. Waste, fraud, incompetence by public officials will go unexposed. Our democracy is much the poorer for it.

Hot topic: Press freedom

If you are in Sydney on Thursday 11 April, get along to the Walkley Media Talks series panel discussion, "Press freedom in Australia is under assault", with Philippa McDonald of the ABC keeping Linton Besser, Sophie McNeil and me on topic and under some sort of control. 

Details here-free, how good is that? 

At the State Library in Macquarie St at 6.30pm. Bookings are essential.

Also of potential interest (but no, not free), the Excellence in Government Decision Making Symposium organised by the Australian Government Solicitor in Canberra 20-21 June with plenty of important administrative law topics up for discussion. Details here (pdf).

MEAA makes valuable contribution to press freedom discussion

The 2012 Report on Press Freedom in Australia by the Media Entertainment and Arts Alliance released last Friday provides a valuable summary of the state of play on a wide range of topics and is well worth a read. (See report here-pdf)

Kicking at the Cornerstone of Democracy devotes plenty of space to the Finkelstein and Convergence reviews and associated media ownership and diversity issues. But it also highlights that the high ideals and reforming zeal evident when Labor took office is hard to spot now in some key related areas. Two cases in point are the two years (and counting) silence on the ALRC Secrecy Laws and Open Government in Australia report with more than 60 recommendations for dealing with the crazy crowded secrecy quilt consisting of  506 secrecy provisions in 176 pieces of federal legislation, including 358 distinct criminal offences; and the oft promised still to be delivered protection for public service whistleblowers with the last in a long line of missed deadlines, June 30, 2011. 

The states have plenty to do as well particularly regarding an improved framework for court suppression orders.

The summary of submissions to a NSW statutory review of defamation law by Joseph Fernandez is the first coverage I have seen of this.

Several articles include some welcome balance on the privacy front and others cover Freedom of Information developments-I'll pick up on the latter in separate posts.

Finkelstein recommendations based on self regulation failures and gloomy prospects for change

There are many issues raised in the Finkelstein review that deserve close analysis and sensible discussion and debate-which may or may not occur. But a few observations on media accountability and what to do about it, from a quick read of the 477 page report.

The recommendation for a News Media Council to set journalistic standards for the news media in consultation with the industry, and handle complaints made by the public when those standards are breached, emerged from analysis that showed there is a problem with standards, that the media has failed in its self regulatory efforts and that there is no persuasive evidence that it can or will remedy the situation.

This assessment is largely based on evidence from the Australian Press Council and lessons drawn directly from history- that the APC has serious structural constraints, does not have the necessary powers or the required funds to carry out its designated functions, and is vulnerable because publishers can withdraw when they wish and alter their funding as they see fit. Separately regarding television and broadcasting, the report finds ACMA’s processes are cumbersome and slow. And if "legal proceedings against the media are called for, they are protracted, expensive and adversarial, and offer redress only for legal wrongs, not for the more frequent complaints about inaccuracy or unfairness.. The problems with both the external and self-regulatory mechanisms are inherent, and cannot be easily remedied by piecemeal measures."

Someone is wrong here- the APC and many others (supported by the inquiry report) who think change must occur, or those in the media who claim variously, that everything is pretty rosy (Fairfax and News Limited), that self regulation of "print" is worth another shot (the APC's Professor Disney, with a question mark about whether he has even reluctant support from his dominant members, News and Fairfax) or that a body to take over the task of seeking to hold the media to account to be funded by government and as independent as you can make it is a step too far (most journalists who have written on the topic to date and sub-editors everywhere.)

Not that there isn't room for plenty of argument about the detail in this and other areas of the committee's findings.

 But those up in arms about the report's findings, or who offer alternative evidence and other solutions about media standards who wish to be taken seriously hopefully first read the report in its entirety. And look at the annexures as well- B on the widespread consultation that has taken place; D summarising the 10,000 short submissions not previously published which include many apart from those organised by Avaaz and Newstand, as well as hundreds of more detailed efforts; E a bibliography long enough to make your head spin; F public opinion polling data that confirms the media/journalists have a public perception problem not necessarily reflected in sales; G the analysis of a sample of 100 APC complaint adjudications including that 38% of complaints concerning privacy were upheld; H the analysis of articles highlighted in the Victorian Office of Police Integrity Crossing the line report, some of which are cited elsewhere as involving a signficant breach of standards; and I, telling research on media treatment of vulnerable people from a group of academic researchers that include Professor Mark Pearson of Bond University among others highly respected in media circles.

The following extracts are the the summary given of the APC's situation (Chapter 8):

Australia 30 out of 179 in press freedom report

The Press Freedom Index 2011-2012, a survey covering 179 countries published by Paris based NGO, Reporters Without Borders (RSF), ranks Australia 30th, a drop of 12 places in a year, but overall "satisfactory." At the top of the list, Finland, Norway, Estonia and the Netherlands. Canada came in 10th, the UK at 28 and the US at 47. New Zealand dropped from eight to 13. No country in this region made the top ten. China at 174.

Our standing in this annual survey is now two places below that of 2007. At that time this was cited as one of the reasons for the establishment of the coalition of major media organisations, Australia's Right to Know, to address concerns about free speech in Australia. (Low profile in recent years, to put it mildly- the latest Media Release posted, May 2010; the latest submission to government October 2009.)

In the decade since these surveys began, the first was our best (12), the next our worst (50), with significant movement within these tramtracks since:

2011-2012-30

2010-18

2009-16

2008-28

2007-28

2006-35

2005-31

2004-41

2003-50

2002-12

No country reports are published with the survey results. In the 2011-2012 summary we receive this half-sentence mention (Asia section):

"In Australia (30th), the media were subjected to investigations and criticism by the authorities, and were denied access to information.." 

Hmm. Ignoring the hysteria in some media circles over floated privacy law reforms, and the claims Andrew Bolt is a martyr for free speech, you could expand on that if room permitted, all the while acknowledging some improvements in freedom of information laws and practice in all but three jurisdictions.

The criteria for the ratings are published, as is the methodology:

The (44 question) questionnaire was sent to Reporters Without Borders’ partner organizations (18 freedom of expression groups in all five continents-none in Australia), to its network of 150 correspondents around the world, and to journalists, researchers, jurists and human rights activists (hands up anyone? declaration, not me.). A scale devised by the organization was then used to give a country score to each questionnaire.

Separately as part of the RSF project "Enemies of the Internet" the prospect of a harsh internet filtering system here receives special mention and we appear on the list of countries under surveillance on this score.

I'm with Andrew Lowenthal writing in the New York Times-I too like RSF and admire the important work it does, but rankings of this kind are, well, questionable. Lowenthal is scratching his head that Hungary rated seven places ahead of the USA despite the fact that it has adopted a law giving the ruling party direct control over the media and amending its constitution accordingly.

Lowenthal is not alone. In Indonesia The Jakarta Post reports the Press Council saying it was odd that Indonesia (down 29 places to 146) ranked below Singapore, Brunei Darussalam and Malaysia, "all countries in Southeast Asia known for the draconian measures used to silence the media." (I'd throw in Fiji at 117 for good measure.)

Commentary from our homegrown media is awaited with interest.

In the latest Freedom House Freedom of the Press survey (2011) which includes a detailed country report, Australia's score was 21-the best appears to be 10.

MEAA 2011 Press Freedom Report

On good reads, congratulations to the Media Entertainment and Arts Alliance for the 2011 Press Freedom Report, jam packed with information and informed comment on all the relevant issues-freedom of information, secrecy, whistleblowing, shield laws, privacy, copyright, open justice, national security, censorship and more.

Julian Burnside QC [8-9] has a good oneliner on the WikiLeaks message to government:

"Assange has introduced a new element into global politics: tell the truth or fear that the truth will be exposed."

Chris Warren in his introduction [3] sees grounds for cautious optimism in some recent developments, but with plenty more to be done. One urgent priority is the " ludicrous plethora" of secrecy laws revealed in the ALRC report still awaiting a government response well over a year later, an issue picked up elsewhere including by Markus Mannheim of the Canberra Times [14-15].

Mannheim's main point is that public servants- described as the real opponents of open government- and journalists all need to lift their game. Public servants must accept that open government means a stronger focus on what they do and need to develop the necessary thicker skin to go with this. As for journalists its a question of standards:

"The more documents become publicly available we must ensure that we get it right and be fair when we report on them.There are many eyes in Canberra watching for and counting our mistakes hoping to use them to argue against any further moves to open up..government. Let's not give them the pleasure."

(Update:Jonathan Holmes on The Drum on 13 April writes about FOI and subsequent media reporting on what was disclosed that falls short of professional standards.)

On privacy the Alliance calls [33] for a robust debate to ensure that judgments about legal rights of recourse are not just in the hands of the courts. The problem with this is that the debate, admittedly often in a desultory fashion, has been underway for years, with three law reform commission inquiries resulting in recommendations yet to be acted upon four years later, for a statutory cause of action for a serious unwarranted breach of privacy. If the debate hasn't been robust enough that may be because of the stand by some media organisations, including our loudest, that there is no need.

The chapter on privacy fails to mention the failings in the self-regulatory privacy arrangements that apply to the print media, pointed out last year by former Prime Minister Keating, but David Marr [33-34] gives Channel 7 both barrels for their judgment in outing then NSW minister David Campbell and more of the same for the ACMA for their "cockamamie"  argument that this was in the public interest. (Barbara Tuchman's "March of Folly" comes instantly to mind.)

Michael Pelly, at the time a legal affairs writer with The Australian and since appointed Media Adviser to NSW Attorney General Greg Smith, confirms [7] what most know or suspect about prevailing attitudes in some newsrooms regarding public interest considerations in publishing: "would the public be interested in reading about this?" is the question journalists ask, Pelly says, subject only "to the interests of good taste and reader sensibilities."

I'm afraid that's not what journalism professional standards and media codes say, or what the the law requires when the issue arises, with Pelly at least acknowledging this last point.

Governments argue for narrow interpretation of Lange freedom of communication principles

In the recent High Court decision in Hogan v Hinch [2007 2011] HCA 4 our rather thin right to freedom of political communication received an airing, with the Commonwealth and the states putting some views about the interpretation of the Lange principles.The case concerned Victorian court suppression orders and whether the act under which they were issued contravened the implied right to freedom of political communication as enunciated in Lange. The Court unanimously rejected all grounds relied upon by Hinch.

Those involved more closely than me in free speech issues may have been aware of argument that the Lange freedoms were potentially limited to communications concerning Commonwealth politics or government. (Although this 1998 article by Professor Sally Walker, now I think at Deakin University, drew this from the Lange decision: "the High Court re-affirmed that not only federal legislation, but also State and Territory legislation and the common law must conform to the freedom of political communication which is an "indispensable incident" of the system of government created by the federal Constitution.") 

In any event I was surprised to find that the Commonwealth (an intervener) argued in the Hinch case for the limitation of Lange freedoms to communications concerning Commonwealth politics or government. And that NSW and Queensland (all the states also intervened) contended any exercise of executive or judicial authority under the Victorian act "was well removed from any 'federal issue' and thus from the scope of the Lange implication."

Beyond surprise about the potential significant limitations on an already tightly drawn right to freedom of communication came relief to find that Chief Justice French rejected the Commonwealth submission, concluding [49]:

"The range of matters that may be characterised as "governmental and political matters" for the purpose of the implied freedom is broad. They are not limited to matters concerning the current functioning of government. They arguably include social and economic features of Australian society. For these are, at the very least, matters potentially within the purview of government."

By implication the Chief Justice did not accept the NSW and Queensland argument. In their joint judgment, Justices Gummow, Heydon, Crennan, Keifel, and Bell [99] did not refer to the Commonwealth submission and said it was unnecessary to pursue the NSW and Queensland question.

Whether the decision leaves open scope for further argument at some stage by the Commonwealth and the states for narrowing the application of the Lange principles remains to be seen.

Iceland hot on information freedom

Wikileaks founder, Australian Julian Assange, thought to be sitting on a pile of unpublished classified material about Iraq and Afghanistan, has good reason to avoid the US according to the Washington Post, but spoke to a conference this week in Brussels, and has spent large chunks of time in Iceland recently.

Where Iceland's parliament, the Altingi, voted last week to task government with finding ways to increase information freedom and to make Iceland a leader in freedom of expression.The detail (in English) of what passed is a bit hard to come by but the Icelandic Modern Media Initiative, or IMMI is "intended to make Iceland an attractive environment for the registration and operation of international press organizations, new media start-ups, human rights groups and internet data centers. It promises to strengthen our democracy through the power of transparency and to promote the nation's international standing and economy."

Here is the summary of what was proposed which includes protection of journalist sources, whistleblower protection, communications protection, limiting prior restraint on publication, what they call process protection, history protection, and libel tourism protection, and the creation of the Icelandic Prize for Freedom of Expression. And bringing Iceland's Freedom of Information Act into line with the Council of Europe convention and "good and modern elements in the FOI laws of Estonia, Scotland, the UK and Norway." Some of this sounds as if they are coming from behind, but here's the FOI plan:

MEAA report on press freedom

The Media Entertainment and Arts Alliance report on the state of press freedom in Australia released on 30 April is a comprehensive and useful survey of the field, and developments over the last 12 months including secrecy in government, Freedom of Information, whistleblower protection, shield laws, defamation and SLAPP, copyright, spin, anti terror restrictions-the lot. There is even a sane contribution  (rare in most media circles) on privacy by Media Watch's Jonathon Holmes suggesting (as ABC's Mark Scott did in March last year) that media organisations should be trying to negotiate a sensible statutory cause of action for gross unwarranted breaches rather than leave this to common law development by the courts. Other contributions include Michael McKinnon on FOI developments and me on how transparency issues featured differently in the recent Tasmanian and South Australian elections.


Chris Warren's overall assessment in the introduction properly stops short of a positive rating for the Rudd government on results to date, but is optimistic about changes still to come. There is plenty of room for debate about his comment about privacy and the profession: that "Australia's journalists-compared to some comparable markets- have a pretty good record of respecting this right to privacy and on occasions when we do step over the mark we are quick to recognise this as well." The rider about "comparable markets" gives this otherwise unqualified defence of standards a suitably vague and uncertain character.

Google releases government requests data

Google's Government Requests Tool  launched on 20 April provides information about requests for user data or content removal received from government agencies or arising from court orders around the world. In the last six months o f last year Australian government agencies made 155 requests for information including 17 for remove all or some information:14 from You Tube, and 1 each from Blogger and Geo and a web search. Google complied fully or partially with 52%. No other details. Has anyone asked Canberra about the requests for user data? Australian numbers for removal are small in comparison to Brazil, Germany, India (many arising from defamation suits) and the US.

Google states the release is a first step in providing more transparency about efforts at web censorship, noting many requests are entirely legitimate for example for removal of child pxxxography.

We also regularly receive requests from law enforcement agencies to hand over private user data. Again, the vast majority of these requests are valid and the information needed is for legitimate criminal investigations. However, data about these activities historically has not been broadly available. We believe that greater transparency will lead to less censorship

On political speech Google adds:

In our experience over the years a very small percentage of content removal requests from governments have centered on political speech, but often those requests are the ones that spark the most vigorous debate within Google. We have complied with some of those requests if, for instance, the material violated our own content policies. But for others, we didn’t. For example, in Argentina, a federal prosecutor claimed that information about him and his wife (a federal judge) had been posted for analysis on two political blogs and asked that we remove them. We removed a portion of one of the blogs for revealing private information about the judge, but otherwise did not comply. We also received a demand in late 2009 from a Canadian politician for the removal of a blog criticizing his policies. Again, we declined to remove the blog, because it did not violate our policies.

There’s a question mark on the world map for content removal requests from China- Chinese officials consider censorship demands as state secrets, so Google (who terminated its joint venture there because of government intrusion) politely says it cannot disclose that information at this time.

On a China related topic, my morning read at the moment in Hong Kong, the South China Morning Post today reports China shut down all anonymous comments on major news and business websites last year, and plans a real name identification system to prevent anonymous communication on websites, discussion groups and mobile telephones. Wang Chen, chief of the State Council Information Office reportedly told the Standing Committee of the National People's Congress one of the aims was to "keep harmful overseas information" from appearing on domestic websites. Wang is also reported to have said China now has more than 400 million internet users, so the finger in the dyke faces challenging times.

NSW leaders to go at it, hopefully with a nod to FOI reform

Tomorrow NSW Premier Keneally and Opposition leader O'Farrell are in debate (on Sky) one year out from the NSW election.  I'm hoping the stalled NSW Freedom of Information reforms get a mention. As noted in February the Premier has said nothing on the subject that I'm aware of since she came to office, thereby sending a different message about the pace and scope of anticipated change after predecessor Rees used a megaphone to foreshadow what was to be expected from the commencement of the GIPA act. Nothing along these lines from the minister responsible, the Attorney General either.

Today's Telegraph includes the following Q&A in advance with O'Farrell, but no similar question was put to the Premier.  And yes, we've heard plenty of this from opposition leaders over the years. The new yet to commence law passed by Parliament last June is reasonably good, and the yet to be appointed Information Commissioner that the Government has been searching for since last September hopefully will make some difference before next March:

(Q ) What will you do, immediately, if you are elected in March next year, to gain the trust and respect of the people of NSW?

( A ) I understand the community's loss of confidence in public sector decision making and, if entrusted with the position of premier, I am determined to head an ethical, honest, open and accountable government -- in which decisions are made on the basis of public interest every time. I will put the community first. I have announced a series of measures we will introduce to increase the accountability, honesty and integrity of government, including campaign finance reform, upgrading Freedom of Information and Whistleblower laws, strengthening the Independent Commission Against Corruption and the NSW Audit Office and examining the application to NSW of a recall election mechanism.

SA backflip on online political discussion

After posting here in defence of anonymity and pseudonimity, used reasonably, in online political discussion, I missed the ensuing fuss last week over the South Australian law to try to haul this in during the pre-election period, only to read in the Weekend Australian of the complete government backflip, under pressure, and some other colourful aspects of the public life of the minister responsible, Attorney General Michael Atkinson. David Penberthy on The Punch, while welcoming the move, makes the point that "the tone and quality of many (online)) comments is abysmal, and it’s a problem which stems in large part from anonymity." I can believe it, although Anonymous -apparently in many incarnations - is  our best and best informed commenter here.

Australians say human rights need better protection.

The Brennan Committee report to the Federal Government on the National Human Rights Consultation makes 31 Recommendations, 16 concerning action to protect and promote human rights more effectively and 15 about a Human Rights Act for Australia and the preferred model- the "dialogue" model allowing for judicial opinion concerning incompatibility, but Parliament at the end of the day to prevail, along the lines of models currently operating at state level in the ACT and Victoria. Rights in seven international treaties signed by Australia (subject to any claimed reservation) including the International Covenant on Civil and Political Rights (Articles 17 and 19 confer a right to privacy and to information respectively) should be protected and promoted; and the right to privacy and the right to freedom of expression are among those listed for inclusion in the Act. The Chairman on ABC PM explained the proposed model and discussed what turned him from a self-confessed sceptic - it all makes welcome good sense to me.