Strong media voices speak up about freedom issues including the backsliding on Freedom of information.

Independently of Right to Know day or week - now there's a missed opportunity - Australian media organisations and journalists are finding new strong voice about freedom of speech,  press freedom and related issues, decrying poor efforts to speak up as the wave of national security laws washed through and freedom of information went backwards in the last few years.

The chair of the Australian Press Council Professor David Weisbrot said laws proposed as a counterterrorism measure threatened the ­future of investigative journalism and must be revisited. He told The Australian the council had an important advocacy role, a role for a long time left to the publishers:

“My view is that the issues are so central to all of our constituency, our readers and the newspapers, that we need to be involved and we can do that because if The Australian or the Tele or the Herald argues about these things, many people will see that as self-interested, whereas The Press Council, when we speak we’re representing the broader community and we’re more at arm’s length than an individual publisher is.”

And the doyen of the Canberra Press Gallery Laurie Oakes in his address (pdf courtesy MEAA) to the Melbourne Press Freedom Dinner blamed government for the intrusions and journalists and media organisations including those publishers for complacency as the screw turned.

Oakes said 

"it’s.. incumbent on journalists and publishers and broadcasters to fight the press freedom side of the argument. It’s not going to be given due weight by governments of any stripe otherwise.”

Oakes included in his list of issues that journalists in the main have ignored, Freedom of Information backsliding under successive governments,culminating in the attempt to abolish the Office of Australian Information Commissioner, and Australia's lack of interest and enthusiasm for the Open Government Partnership.

 (Press freedom is) not going to be given due weight by governments of any stripe otherwise. I repeat, press freedom,transparency etc. are rarely high on their list of priorities.

You can see that from what’s happened with the Freedom of Information system. There’s been a steady retreat by politicians and bureaucrats from the freer flow of information that briefly gave cause for optimism following John Faulkner’s reforms in 2009 and 2010. The retreat started under the Labor government. And it had nothing to do with security merely old habits reasserting themselves.

John Faulkner as Special Minister of State was a true believer in government transparency, and introduced reforms to the FOI system that unequivocally conveyed a presumption in favour of disclosure. When Faulkner went, so did enthusiasm for his approach.

A key reform was the appointment of an Australian Information Commissioner to review access refusals, publish FOI guidelines for agencies to follow, and act as a kind of champion of open government. We get an idea of what happened to that from a 2013 paper by Professor John McMillan, the first Information Commissioner and, in any meaningful respect, the last one as well.

When an event was organized to mark the 30th anniversary of FOI in Australia, no minister attended or made any contribution. Legislation to entirely exempt the Parliamentary Departments from the FOI Act was rushed through Parliament, even though this was contrary to a submission from those departments. The Government stopped responding to key reports from the Information Commissioner. It ignored a suggestion that ministerial appointment diaries be published on the web. Australia did not join the International Open Government Partnership formed in September 2011 and which now has 64 member countries. And so on.

And when the coalition came to office? It announced the abolition of the Office of the Information Commissioner in its first Budget. The senate blocked that, so the government effectively defunded the office. McMillan, largely stripped of staff, spent his last eight months in the job working from home. A disgrace.

And the media were pretty much silent throughout.

The welcome mat is out if these issues are given new prominence in media circles.

Professor Weisbrot and Oakes both are guardedly optimistic about the arrival of Malcolm Turnbull - so is Open and Shut - but regardless, media organisations and journalists should be reaching out to others in the broad community who share these interests to establish a formal or informal coalition to argue the case and seek to safeguard freedom of speech, press freedom and transparent, open government. 

"Freedom From Information-Australia's war on transparency"

Walkley Award winning journalist Sarah Ferguson will present the 2015 A.N. Smith free public lecture "Freedom From Information-Australia's war on transparency" in Melbourne on Wednesday, October 7, 2015.

A taste:

While governments – and major institutions – find new ways to limit transparency, the media industry itself is equally culpable, trading away its freedom to investigate for short term access. There is a war on transparency underway and the media is colluding with the wrong side.

The Australian dusts off the "Must resist any move to give a right to sue over privacy" file.

In response to the headline to Chris Merritt's report in The Australian "Time to stop droning on about privacy, as a tort is unnecessary", it's wishful thinking but...

it's way, way past time for Chris Merritt to stop droning on that the very idea of a tort for serious unwarranted invasion of privacy would be the end of the world as we know it.

Of course as the Attorney General apparently has said "the Government has made it clear on numerous occasions that it does not support a tort of privacy" this issue is in the lost cause box in any event. Until something in the mix changes regardless of evidence of increasing threats to what we thought might be private, the high level of public concern about privacy and the view of most experts not employed or retained by News Corp that the gap in the law should be filled by a carefully crafted statutory provision. 

News Corp publications of course always have an unerring eye when it comes to balancing privacy and the public right to know and be informed even when it comes to intimate details about Senator Peris. (Segue to a wonderful reflective piece on the general subject by Jack Waterford in The Canberra Times although whoever wrote the headline should have read the article more closely.)  Their activities in the conduct of journalism aren't covered by the Privacy Act but privacy complaints about others were up 183% in the year to June.

This time Merritt is on about a parliamentary committee report that recommended the following among many other steps to deal with gaps in the law in the light of the widespread and growing use of drones.  

You wouldn't know it from Merritt's article that use of drones by journalists wasn't central to the committee's consideration of the problem. Or that there is a stack of reports other than this one that recommend a statutory cause of action:

The Committee recommends that the Australian Government consider introducing legislation by July 2015 which provides protection against privacy-invasive technologies (including remotely piloted aircraft), with particular emphasis on protecting against intrusions on a person's seclusion or private affairs.
The Committee recommends that in considering the type and extent of protection to be afforded, the Government consider giving effect to the Australian Law Reform Commission's proposal for the creation of a tort of serious invasion of privacy, or include alternate measures to achieve similar outcomes, with respect to invasive technologies including remotely piloted aircraft.

It's in Attorney General Brandis' in tray. Don't hold your breath.

OGP urges aspirants to greater ambition

As we await news from the Attorney General on how Australia intends to approach the task of preparing a national action plan to present as part of its application to join the Open Government Partnership, probably at a meeting in March 2014, the message from the recent Steering Committee meeting in London is that the focus in such plans needs to move beyond ‘business as usual’ commitments to more ambitious action plans and civil society engagement.

The meeting endorsed a sub-committee report that the second round of national action plans (that includes us) "should clearly demonstrate how commitments are advancing open government in scope and/or in time frame. Governments should also move beyond traditional civil society consultation models, towards on going meaningful dialogue on policy commitments and implementation of action plans."


The minutes of the meeting are here Jul2013SC_MeetingMinutes_Final.pdf
   
Apart from important matters concerning governance and finances, other items of interest include:

• conversations are underway with four multilateral partners (OECD, World Bank, IDB and UNDP) concerning areas of potential collaboration.

• and somewhere out there is a newly formed OGP Media Council."The Council, which is comprised of high profile journalists from all regions will provide expert guidance on how OGP can better partner with the media to promote our shared objective of more open and accessible government. To inform a white paper that the Media Council will produce, Richard (Sambrook former Director of Global News for BBC) is collecting input from more than 200 journalists and media leaders from around the world.The Media Council will present some initial recommendations to OGP in late July or early August and will organize a session at the October Summit to discuss the white paper."

Wonder whether any Australian journalists and media leaders feature in the 200? 

Australia's intention to join the OGP has hardly rated a mention in the mainstream so far, so any stirring interest would be welcome.

Australia's Right to Know, the coalition of major media organisations, impressively led the backlash over excessive secrecy in 2007-2008 but has rarely surfaced since. The last posted entry on its website is October 2009 and the contact person listed left in 2012 to work for the Leader of the Opposition.

Update: Toby McIntosh has this fuller summary of the Steering Committee minutes.

MEAA on the State of Press Freedom

The State of Press Freedom Report 2013 (pdf) published by the Media Entertainment and Arts Alliance contains a generally good summary and plenty of opinion from a media perspective on a whole range of relevant issues.(The report is is searchable here with chapters on privacy, suppression orders, anti-terrorism laws, whistleblower protection etc.)

Shield laws are a major concern this year, not surprising given current court challenges to the confidentiality of sources involving Steve Pennells, Adele Ferguson,Richard Baker,Nick McKenzie and Philip Dorling to name some high profile journalists on the receiving end. 

But Opposition Shadow Attorney General Senator Brandis was flabbergasted this was a high priority. And overblown in comments about the parlous state of press freedom here. Not mentioned is that Australia is ranked 26 of 179 countries by Reporters Without Borders

Associate Professor Fernandez of Curtin University includes a handy summary of the shield law provisions around the country- the gaps are Queensland, Northern Territory and South Australia that don't provide specific protection, there is no specific reference to ‘journalist’ in the Tasmanian Evidence Act, and those that have legislated in recent years (the Commonwealth, NSW, Victoria and Western Australia) haven't adopted uniform provisions. Standard federation practice you might say.

Michael McKinnon of Seven Network on freedom of information writes

..the promise of the reforms of 2010 have not been met and FoI is still a battleground. The OAIC has proven to be more of a problem than a solution to exercising a legal right of access of information.

McKinnon is critical of the Hawke review terms of reference and most reform ideas floated from within government, and makes a strong case for disclosure of advice documents in the public interest as a way of focusing on the quality of government decisions. 

I'm with him thus far but start to part company when he returns to familiar themes in discussing the performance of the Office of the Australian Information Commissioner.

McKinnon sees inconsistency in the OAIC role in review on the one hand, and other FoI functions (leadership, guidance, regular meetings with agencies and their representatives) on the other. I think they're complimentary not inconsistent. And that applicants should have a right of appeal to the AAT as well as the option of the OAIC, "as the OAIC is failing its core purpose of providing a timely and independent merits review mechanism." While there are serious questions about timeliness, I don't think the AAT as an option instead of OAIC review is the answer-lawyers for the agency at cost to the taxpayer and to the disadvantage of most applicants, although I know McKinnon is well able to handle things in the AAT himself. And no evidence that the AAT would be more timely.

(Addition: See McKinnon's assessment last year and my comments at the time.)

Responsible journalism, "what's the problem?"

Richard Ackland in the Sydney Morning Herald writes of flaws in whistleblower protection and defamation laws, advocating recognition here of a "responsible journalism" defence of the kind accepted in the UK since the House of Lords 1999 decision in Reynolds v. Times Newspapers , and given a fillip in Flood ten years later, and more recently adopted by the courts in Canada. 

I agree, and with the point Ackland makes that instances of bad journalism hold back the cause. 

But so do the media bosses who quizzically repeated "what's the problem" during the recent furore over proposed media reforms, insisting that everything to do with media standards and the self regulatory system is working wonderfully well, thank you very much.

Leaving it to Professor Julian Disney Chairman of the Australian Press Council to volunteer "There is a whole stack—at least 50 or 60 that we know of—of statutory or non-statutory privileges for journalists or media organisations." 

Some would argue that these "privileges" are essential to enable the media to do its job, and there should be more, for example the "responsible journalism" protection, and better, for example shield laws. 

But they are privileges none the less and should see the bosses in the lead on commensurate responsibility, and in adopting and enforcing high standards. Even if they have managed to see off the government's ham fisted attempt to push them along in this direction.

There is plenty of responsible journalism but everything isn't rosy. As Professor Disney explained to a Senate committee but media bosses didn't, there are plenty of problems with the current self regulatory system. Others outside the tent might add to the professor's impressive list, including the adequacy of some standards particularly respect for privacy (and a lot of haziness and lack of guidance regarding the public interest). 
Professor Disney:
 
"There are substantial problems with media standards in Australia. A number of them we have in common with other countries. What I am going to say now is based on the experience of the complaints that we receive. We get about 600 now. The numbers increased by about 50 per cent over the last year or so, probably because our profile is so much higher than it was before, with our existence and our role being advertised in virtually all issues of every member publication...

The problems include distortion and suppression of key facts and opinions; confusion of fact and opinion; errors of fact, especially online due to excessive haste in posting material and inadequate corrections of those errors; invasion of privacy, particularly through the use of photographs taken from a distance. Some problems, of course, in any profession or industry, are inevitable. I do not think it should be a surprise that there are some. The level is higher than it should be and I think it is a significant problem that needs to be addressed.
  

Having said that, there is a substantial problem that needs to be addressed. I might say that it has an adverse impact, amongst other things, on freedom of expression. If people are to have freedom of expression, they need access to reliable information. If they are fed false information, then the views that they form and they might want to express will not be the views that they would form and express if they were well informed. Access to unreliable, distorted information is an attack on freedom of expression. 

 

Similarly, if they are unable to get their voice heard reasonably, because particular outlets have perhaps a general tendency to be more willing to publish views from one part of a perspective on a particular issue rather than another, that infringes on the freedom of expression of those people who do not come from the part that is going to be more generously covered. If they are given an occasional example to express their views but that is overwhelmed by a very extensive coverage of the other view, then again their freedom of expression suffers. Freedom of expression needs to be for all people, not just for those who are wealthy or for those who have special access to the most widely read media. Of course, it is a huge infringement on freedom of expression if people are intimidated by vitriol or by other forms of excessive abuse. That, again, even if it comes from active proponents of freedom of speech, it is in fact an attack on freedom of expression. So media standards, good media standards, are an essential element, for a number of reasons...

Quite a lot of progress has been made but we are still moving too slowly in our handling of complaints. We are suffering from sustained misrepresentation of our adjudications and other comments from some quarters, sometimes from proponents of freedom of speech, who are alleging quite forcefully that some of our adjudications have inhibited freedom of speech. By falsely presenting what we have said and implying that we have put inhibitions on freedom of speech, they themselves are inhibiting freedom of speech. We are still suffering from not a high enough level of cooperation from publishers in some areas and we need to keep working on that. We are making progress.
 
I want to finish with two important strengthenings that we need to achieve and then comment very briefly on the bill. The first strengthening is—as Mr Finkelstein asked of me at the inquiry, but at the time I said perhaps we should do it another way—we now definitely need to be able to institute our own investigations without waiting for a complaint. There are far too many instances...
 
I have seen some very bad abuses in the last few weeks where we have had no complaint and yet I know, in fact, the people were concerned about it but thought it would just make it worse if they complained."

News Ltd makes up privacy rules and threats to democracy as it goes

 Maybe News Ltd CEO Kim Williams on ABC Radio PM last week was just using "shield provisions" loosely. And wasn't confusing the conditional exemption media organisations have had from the Privacy Act for the last 13 years, and the shield law protections introduced by Labor in 2011 after years of lobbying following the prosecution and conviction in 2007 of News Limited journalists Harvey and McManus . On the other hand:

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.

Media self-regulation legislation contains no threat to democracy

But in providing some incentives and disincentives the proposed changes may mean news media organisations take self regulation seriously.

As references are hard to find beneath the mountain of blather in the media this week, the two bills that set out the proposed scheme which allegedly poses threats to the very pillars of our democracy, and the second reading speech in each case (Hansard 14 March) are as follows. The main legitimate gripe is the government's handling of all this and the two week "take it or leave it" ultimatum. A Senate committee has a few days to examine. No ticks for the process in getting to this point (five years since the ALRC recommended some slight tweaks to the exemption from the Privacy Act) or managing it from here on.

Media reaction says it all about standards

I can't say it any better or add a lot to Bernard Keane on Crikey and Susan Forde on The Conversation who nail for what it is, the over-reaction from News Ltd publications and (slightly less so) other media to the government's response on media reform.

Over-the-top, ridiculous, absurd.

Even biased, inaccurate or unfair, sufficient to warrant a complaint to the Australian Press Council for ahem, breaches of standards?

Nothing from the APC so far. 

Interesting that a fair bit of what the government proposes was in line with what Professor Disney had been saying.

Not surprisingly, News Ltd papers featured at the top of the list of complaints to the APC during 2012. 

Newspaper journalists in 2012 rated at 10% for Very High or High on honesty and ethical standards (14% was their best in 34 years of polling.) 

Bernard Keane to finish:

At the end of 2011, Essential Research asked voters if they thought the quality of newspaper regulation was good or poor. Only 20% of voters thought it was good, 25% thought it was poor. In July 2011, it found 48% of voters thought there needed to be more regulation of the media. By trying to insist newspaper self-regulation actually works, Conroy is in fact giving the industry a chance to avoid actual regulation, or even the “co-regulation” that currently applies to broadcasters. Because if we get a government that decides to act on the apparently widespread conviction among voters that we need more direct government regulation of the media, it really will be a threat to a free press.

The referral of the privacy cause of action to the ALRC is of course ridiculous but at least it hasn't been knocked on the head. It's in for a long hibernation at best.

Queensland RTI charts unprompted new territory

Right to Information changes including new Disclosure log requirements came into effect in Queensland on 22 February with the commencement of the Right to Information and Integrity (Openness and Transparency (Amendment) Act 2012.

Two aspects are unique in Australia. Where they came from and why is unknown. They  bobbed up in a bill introduced in a hurry in the Queensland parliament late last year.


An RTI applicant must now reveal whether access is being sought "for the benefit of, or use of the document, by the applicant or another entity". Where access is sought for the benefit or use of another entity, the access applicant is required to name that other entity.

And after a valid application has been received and before any decision on disclosure is made, details of the information being sought and the date of the application must be included on the Disclosure Log. 

Neither gets a mention in all the various ideas put to the Hawke review in Canberra on how to improve the operation of the Federal government's freedom of information act.

In addition to those innovations the amendment scraps the previously available 24 hour minimum exclusive use period for information released to an applicant before it is posted on the disclosure log. The new formulation requires released documents to be posted on the disclosure log "as soon as practicable" after release to the applicant. 

If an applicant fails to access a released document within 40 business days, details identifying the document, information about the way in which it may be accessed and any applicable charge must now be included in a disclosure log as soon as practicable after the access period ends.

Exclusive use
The removal of the exclusive use period in Queensland came as media organisations in their joint submission to the Hawke review argue again for a five days exclusive use period when documents are released to a journalist in response to a Federal government FOI application. At present infomation is required to be posted within 10 days. Journalists contrast some agencies such as Treasury that have a same day release policy and Defence and Customs that in the absence of a legislative requirement give journalists an exclusive use period.

I’ve not heard any fuss from journalists about this issue in NSW where there is no statutory time provision for posting released information on the Disclosure log. Maybe the bigger pool of potential competitors on the national scene makes the difference. It has always been open to a minister/agency to release information publicly after an RTI/FOI application for that information has been received and that has certainly happened. In NSW, sensibly no GIPA charge applies in these circumstances.  

It seems reasonable to allow some exclusive time with released information. Perhaps any applicant - not just a journalist - should be able to ask for a few days exclusive use at the time of making the request, with that elective to bind the agency?

Those of us using Righttoknow aren't concerned that others know what we are seeking.  And sharing the spoils from the moment we succeed.

As soon as practicable after a valid access application^[3] is made to a department or Minister, the department or Minister must include the following information in its disclosure log:

• details of the information being sought by the applicant, as stated in the application; and
• the date the application was made.^[4]

Departments and Ministers publishing details of information being sought by the applicant must first review the information and delete information where required under section 78B.
- See more at: http://www.oic.qld.gov.au/information-and-resources/guidelines/guidelines-access-and-amendment/disclosure-logs-departments-and-ministers#sthash.sEqyw7Vg.dpuf

As soon as practicable after a valid access application^[3] is made to a department or Minister, the department or Minister must include the following information in its disclosure log:

• details of the information being sought by the applicant, as stated in the application; and
• the date the application was made.^[4]

Departments and Ministers publishing details of information being sought by the applicant must first review the information and delete information where required under section 78B.
- See more at: http://www.oic.qld.gov.au/information-and-resources/guidelines/guidelines-access-and-amendment/disclosure-logs-departments-and-ministers#sthash.sEqyw7Vg.dpuf

As soon as practicable after a valid access application^[3] is made to a department or Minister, the department or Minister must include the following information in its disclosure log:

• details of the information being sought by the applicant, as stated in the application; and
• the date the application was made.^[4]

Departments and Ministers publishing details of information being sought by the applicant must first review the information and delete information where required under section 78B.
- See more at: http://www.oic.qld.gov.au/information-and-resources/guidelines/guidelines-access-and-amendment/disclosure-logs-departments-and-ministers#sthash.sEqyw7Vg.dpuf

As soon as practicable after a valid access application^[3] is made to a department or Minister, the department or Minister must include the following information in its disclosure log:

• details of the information being sought by the applicant, as stated in the application; and
• the date the application was made.^[4]

Departments and Ministers publishing details of information being sought by the applicant must first review the information and delete information where required under section 78B.
- See more at: http://www.oic.qld.gov.au/information-and-resources/guidelines/guidelines-access-and-amendment/disclosure-logs-departments-and-ministers#sthash.sEqyw7Vg.dpuf

The Australian muscles up for another year opposing privacy cause of action

In The Australian on Monday Legal Affairs Editor Chris Merritt and the sub-editors who came up with this headline "Mark Dreyfus sees free speech risk in privacy law" from an interview with the incoming Attorney General, returned once again to a campaign News Ltd and The Australian in particular have been running against privacy for five years. In the print edition it made front page

Yet as far as I can see Mr Dreyfus was making the same point as anyone else who has looked at this: getting the balance right in framing a cause of action for breach of privacy is difficult. This is what he said: 

"Legislating in an effective way to protect privacy while at the same time not unduly affecting freedom of speech has proved to be a very difficult task," Mr Dreyfus said. "In jurisdictions where they have had legislation I don't think they have got the balance exactly right yet.".....
Mr Dreyfus said yesterday he would not reveal the government's position on the push for a privacy "tort" - or statutory cause of action - until after he had received a briefing from the Attorney-General's Department. But his "present, personal view" was that while there were concerns about invasions of privacy it was very difficult to legislate to enable privacy litigation without adversely affecting freedom of speech. He believed this difficulty probably explained why the government had not yet produced a legislative response to proposals for a privacy tort that were outlined in a government issues paper nearly 18 months ago.

Merritt on this occasion and The Australian otherwise rarely report that many who have turned their minds to the issue think it is doable and worth doing. And that the reasons for providing a statutory remedy for an unwarranted serious invasion of privacy go far beyond  media preoccupation with its own interests.

Three law reform commissions recommended a statutory cause of action.

Almost all legal experts who lodged a submission in response to the government's Issues Paper published in 2011 accept there is a gap in the law. Most agree legislation is the best answer, although some think that judges rather than policy makers will have more and better wisdom. I'm with Professor Moira Paterson of Monash University:

The creation of a statutory tort is arguably preferable because it provides scope to craft a law which clearly addresses the complex policy issues involved (for example, by providing guidance concerning the balancing of privacy with competing interests such as freedom of expression). It also provides an opportunity to provide detailed guidance concerning the operation of the new law.

The Law Council of Australia shifted from opposed, in a submission to the ALRC privacy inquiry, to open minded in response to the issues paper. Two members, the Law Society of NSW and the Law Institute of Victoria favour legislation in their submissions. There is plenty of support from others as well-the privacy foundation, rights groups, advocacy bodies such as the Public Interest Advocacy Center and state privacy law regulators.

Everyone accepts the tricky part is to get the balance right, so Mr Dreyfus is in good company. There are plenty of ideas about that including whether to set the bar low or high, and how to adequately protect freedom of expression which is not absolute and whether to frame this as an element of the cause of action or as a defence. And international precedents and lessons from experience are available from the US, the EU, and four Canadian provinces to mention a few.

While crying freedom of speech is a right above all else there has been scant acknowledgement in The Australian over the years that privacy - despite the difficulties in definition and arising from the changing world around us - is a right under the International Covenant on Civil and Political Rights (Article 17) to which Australia is a signatory with an obligation to protect as well. 

On the likelihood of government action, I'm a realist, now 14 September is firmly in the frame. As Mr Dreyfus said

"I am being brought in with 7 1/2 months to run before the election with a government that has carried out a great deal of law reform already. "I am going to make an assessment of what are the balance of reforms that should be worked on during the remainder of this term and what we should move on in our next term."
 

(The Rudd and Gillard governments have been sitting on this for five years.)

Most of the article was about the consolidation of anti-discrimination legislation - which didn't feature in the headline - plus these comments by Mr Dreyfus about whistleblower protection and the draconian s 70 of the Crimes Act:

Despite leading a 2009 House of Representatives committee that had recommended retaining criminal sanctions for most unauthorised leaks, Mr Dreyfus would not be drawn yesterday on the government's long-delayed legislative response to his committee's report. But before the last election he distanced himself from his committee's recommendation and told a conference that criminal penalties for leaks by public servants "do not match the kind of society that we have . . . they don't match the ease of communication and the availability of information that we have in the electronic and digital age we are living in".

Australia 26 in world press freedom ranking

Australia was ranked 26 of 179 countries in the 2013 Reporters Without Borders World Press Freedom Index, in the Satisfactory category and up four places from last year. 

Finland, Netherlands and Norway are at the top, with other rankings of interest New Zealand 8, UK 29, US 32, PNG 41, Japan 53, and towards the other end, Indonesia 139, India 140, Cambodia 143, Malaysia 145, Philippines 147, Vietnam 172 and China 173.

There are no country reports released with the index and we didn't rate a mention in the Asia Pacific regional summary this year.

Since these surveys began in 2002 the first was our best (12), the next our worst (50), with significant movement within these tram-tracks since. In 2007 when the media coalition Australia's Right to Know was formed to address concerns about free speech our ranking was 28. We managed 16 in 2009 then 18, and 30.

Professor of Journalism and Social Media at Griffith University Mark Pearson lists himself as Australian correspondent for RTF. The report itself doesn't identify those involved in country surveys and reports.

"From next year, Queenslanders will have the most open, accountable and transparent government ever seen across this nation"

So sayeth Attorney General Bleijie in Parliament on 27 November in introducing the Right to Information and Integrity (Openness and Transparency) Amendment Bill 2012. The bill passed on an urgency motion (debate on the bill itself is in the Hansard 29 November at 3012), received assent yesterday 11 December (Act 45/12) and will commence on a date to be proclaimed.

The changes relate to the RTI act disclosure logs and the the Integrity Act - the latter regarding lobbying, with an Australian first in extending the scope to parliamentary opposition leaders, and requiring lobbyists to keep records of contacts and provide information to the Integrity Commissioner.

The legislation was so urgent apparently that as the Explanatory Note ( see under Right to information.....) states:

 "The community has not been consulted on the Bill. The Acting Information Commissioner was provided with a draft of the amendments to the Right to Information Act 2009 . The Integrity Commissioner was consulted, and provided input into, the proposed amendments to the Integrity Act 2009." 

(I can see a difference in wording here that may be significant.)

Leaving the "best ever" claim to one side - and Opposition leader Palaszczuk claimed the bill weakens the existing integrity laws - journalists and media organisations will be disappointed. I've heard some are pushing the Hawke review in Canberra arguing for five days for exclusive use of documents released in response to a Commonwealth Freedom of Information request. Queensland where they have had up to now at least 24 hours before released information is posted on the disclosure log is cited as a less than perfect precedent.

I guess there have been "I'm mad as hell" shouts in light of the fact that the Queensland 24 hour exclusive period has been scotched as a result of the amendments. This provision in the repealed s 78 "However, nothing about the document (including a copy of the document) may be put on a disclosure log until at least 24 hours after the applicant accesses the document" isn't in the substituted section 78, 78A and 78B The new formulation is to post released documents on the log "as soon as practicable" after release to the applicant.

Rumbling in media circles won't be limited to the lack of opportunity to defend the 24 hours period or argue for longer. Another aspect of the new system likely to give rise to media angst is that details of what information is sought are to be posted on the log as soon as practicable after a valid application has been received by an agency and before any decision on release has been made. 

Here are the relevant extracts from the Explanatory Note (emphasis added)

Walkleys for familiar FOI names

Walkleys 1965

Congratulations to all the Walkley Awards for Journalism winners, particularly to Steve Pennells who won the Gold Walkley and two other awards for his news and feature articles in The West Australian newspaper on the Rineharts.

And especially to these sharp 'freedom of information' as well as top journalism practitioners:
 
Television reporting
Michael McKinnon and colleagues Sharri Markson, Lee Jeloscek, and Adam Walters at Seven News, Seven Network for “The cabinet leak” (a NSW story from memory. Update-
stories that revealed the NSW Government went against advice from Treasury, the Energy department and even the Crown Solicitor to support ethanol blended petrol – a decision which favoured one of its biggest donors Dick Honan of Manildra. A GIPA success -McKinnon tells me it was "a leak backed up by some great NSW treasury docs." "One week after the primary story went to air on January 23, Premier Barry O’Farrell overturned the ban on regular unleaded fuel in his first major backflip."

Business Journalism
Nick McKenzie and Richard Baker, 7.30, ABC TV and The Age, Fairfax, “RBA faces questions over bribery connections” (who forged on despite this sort of FOI runaround).

Investigative Journalism
Linton Besser and Kate McClymont, The Sydney Morning Herald and The Age, “Exposed: Obeids’ secret harbour deal” (the first step in a shocking story now unfolding before the ICAC).

Television Current Affairs, Feature or Special
Geoff Thompson (who recounted  recently at the National Information Law Conference the story about the remarkable FOI backdrop to the School for Killers) and Mary Ann Jolley and Mary Fallon, Four Corners, ABC TV, “Unholy silence” 

On the related topic of transparency and reuse of data, the combined forces at the SMH and the University of Technology Sydney team that did some innovative work on the Register of Interests (don't call Senator Faulkner for a soundbite):
Best Digital Journalism
Stuart Washington, Tom Allard, Conrad Walters and UTS Team, The Sydney Morning Herald, “Sky’s the limit on political gifts

And completely off-subject, you just have to love the NT news winner of the Award for Best Three Headings to Paul Dyer, for “Eyeful tower”, “Dogs of phwoarrr!” and 

“Why I stuck a cracker up my clacker.”

As to what appeared below that headline, good taste dictates we don't go there.

Leveson lands, rhetoric set to soar

The Leveson report runs to 1987 pages, one million words and includes 92 recommendations.  

The Executive Summary is 46 pages.

The Spectator has a useful six point guide on "regulation."

Expect waves of instant punditry, including plenty of gloom and doom on the "press freedom" front here with Lord Leveson due in Australia next week.

Keep an eye out for how often you see or hear:
That the Report stresses it is not proposing "statutory regulation of the press" and
"The proposed legislation would not give any rights to parliament, to government, or any other body to prevent newspapers from publishing anything they wanted."

Lines taken from the Huffington Post summary.

(Update: For some dispassionate local comment see The Conversation including these observations from the Chair of the Australian Press Council Professor Julian Disney, giving some of his members a touch-up :

"there are some significant things we would benefit from adopting...I think the statutory underpinning for the privileges has considerable strengths....On the argument about statutory regulation, the media has to do a lot better in its analysis of that proposal. A lot of it is riddled with misrepresentation, overstatement and lack of perception. If it is feared this very minor form of government involvement risks the independence of the body, what does it say then for a body that is totally funded by the publishers? How is a body of that kind going to be able to convince people that it is independent?

There’s a fair amount of hypocrisy here. The media wants statutory privileges. They want statutory intervention when it suits them but not on any conditions. All this is saying is if you want these privileges, you have to sign up to this body. If you don’t want the privileges – and in the case of the arbitrator services, it’s a new privilege – then don’t sign up.

And on the transparency front, some observations relevant to all influence peddling:

There’s a very interesting and good recommendation by Leveson that senior executives and editors of newspapers should have to record or announce all unofficial meetings with senior politicians. I agree with that completely. These meetings are not about a particular story. Not what was discussed but the fact that they met. We don’t have that problem as badly in Australia but it’s not a bad principle

Walkley Award finalists know their FOI

Among the Walkley Award for Journalism 2012 finalists are names familiar to many in government who deal with access to information requests. Congratulations to all who made the list, especially:

Print News Report 
Hedley Thomas, The Australian, “What the floods inquiry didn’t hear: Wivenhoe ‘breached the manual’”

Sustained Coverage of an Issue or Event
Commended: Linton Besser, The Sydney Morning Herald, “Fraud probe snares top bureaucrats"

Business Journalism
Nick McKenzie and Richard Baker, 7.30, ABC TV and The Age, Fairfax, “RBA faces questions over bribery connections”
(Comment: McKenzie and Baker have been on the Securency story since 2009, when they revealed that a subsidiary of the Reserve Bank had paid million-dollar commissions to win global banknote contracts, overcoming FOI obstacles like this along the way.  They won the Walkley for Investigative Journalism last year. The RBA stories are still running in 2012 having led to criminal charges and forced a parliamentary inquiry. They are also finalists this year for best Scoop of the Year, “Church’s suicide victims” and McKenzie for Newspaper Feature Writing for “Why did Abraham Papo die?”)

Investigative Journalism
Linton Besser and Kate McClymont, The Sydney Morning Herald and The Age, “Exposed: Obeids’ secret harbour deal” 

Commended: Sharona Coutts, Joel Tozer, Clare Blumer, Adam Glyde and Paul Farrell, The Global Mail, “Patients at risk”

Best Digital Journalism Category
Stuart Washington, Tom Allard, Conrad Walters and UTS Team, smh.com.au, “Sky’s the limit on political gifts”
(Comment: Don't ring Senator Faulkner for a soundbite.)

Commended: Sharona Coutts, Joel Tozer, Clare Blumer, Adam Glyde and Paul Farrell, The Global Mail, “Failing the aged: a multi-billion dollar mess”

Television News reporting
Sharri Markson, Lee Jeloscek, Adam Walters and Michael McKinnon, Seven News, Seven Network, “The cabinet leak”

Let me know of others that I may have missed who plied the FOI/RTI/GIPA trade to make the finals.