Michael McKinnon on stage in US

ABC Freedom of Information Editor Michael McKinnon speaking recently at Columbia School of Journalism FOI@50 Conference (26.00-36.00) provides a rundown on his FOI experiences in Australia. Mostly positive particularly about culture change in Queensland.

But at 1.26-1.29 in answer to a question pours a bucket on those who headed the Office of Australian Information Commissioner, says with regard to the decision to defund and abolish the office in 2014 we "had no problem with that", laments the decision to reverse this in the 2016 budget, and holds out hope for a post election reform package that focuses on giving those who run the OAIC the same security of tenure as a judge. 

The last point is fair enough but those leading up to it certainly don't represent the views of all journalists who know their FOI, or others of us of similar ilk.

The ABC boosts FOI stocks

Michael McKinnon is set to join the ABC in 2014 as Freedom of Information editor after pioneering this role through stints at The Courier Mail, The Australian and most recently the Seven Network.

Best wishes.

Linton Besser, already recruited from the Sydney Morning Herald and others hired to boost investigative journalism know their way through the FOI maze as well. 

Should make for interesting discussion around the water cooler about the ABC's broad approach to interpretation of its own part exemption from the Freedom of information Act.
Wonder if others in the media pack will FOI the salary packages of the new team?

C U Thursday, maybe?

Look forward to catching up with readers who make it to the Walkley Talks "Press freedom in Australia is under assault" at the State Library this Thursday at 6.30. Free but phone  (02) 9273 1414

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).

The media and publication "in the public interest"

In the argy bargy this week over media reforms there were many references to the public interest, with criticism that the term was not defined in the proposed bills amid plenty of observations about the vague and uncertain nature of any public interest test in any event.

Some media representatives struggled themselves when asked to define the public interest. It turns out their own rules don't provide much guidance.

It is a complex issue and the "public interest" term is probably overburdened by use in many different contexts.

Those in the Freedom of Information world who encounter it all the time obviously deserve a medal for coping with the complexity of balancing public interest considerations.

At the Senate Committee hearing on the now ditched media reform bills, Campbell Reid from News Ltd, in response to an invitation to define the public interest said this "is dependent very strongly on who is leading the conversation at the time." 
(Perhaps in this vein, various editors of News' Daily Telegraph in the past have equated the public interest with "how many papers we sell.")

When asked about the professional conduct policy for News Limited newspapers, Reid said it "sets out the professional standards of our journalism that we require under the headings: 'accuracy', 'mistakes', 'privacy', 'covert activity', 'confidential sources', 'harassment', 'discrimination', 'grief and distress', and so on." But, Mr Reid said, there was no definition in this document.

His boss Kim Williams later elaborated

"I think the term 'public interest', as I have already said, is not defined in the bill itself—probably because of the very great difficulty involved in arriving at a uniform and consistent definition of that which constitutes the public interest. Therefore, what we have done is to set out inside the code of conduct with journalists the relevant issues in terms of accuracy, mistakes and how they are dealt with, misrepresentation, privacy, covert activities, confidential sources."

On privacy the News code July 2012 version states:

4.1 All individuals, including public figures, have a right to privacy. Journalists have no general right to report the private behaviour of public figures unless public interest issues arise. The right to privacy diminishes when the suitability of public figures to hold office or perform their duties is under scrutiny and such scrutiny is in the public interest.

4.2 Unless it is in the public interest to do so, do not identify the family or friends of people accused of, or convicted of, a crime.

4.3 The publication of sensitive personal information — such as taxation details, Family Court records and health and welfare matters — may be prohibited by legislation. Seek legal advice.

4.4 Private investigators will not be contracted to provide editorial services without the approval of the group editorial director.

4.5 Private investigators conducting work on behalf of the company will be required to comply with our editorial code of conduct and provide a written assurance that they will not engage in unlawful surveillance.

A 2006 version of the News Code that came to light in 2011 included a definition:

4.1 All individuals, including public figures, have a right to privacy. Journalists have no general right to report the private behaviour of public figures unless public interest issues arise. The right to privacy diminishes when the suitability of public figures to hold office or perform their duties is under scrutiny and such scrutiny is in the public interest. "Public interest" is defined for this and other clauses as involving a matter capable of affecting the people at large so they might be legitimately interested in, or concerned about, what is going on, or what may happen to them or to others.

This left open publication where the public might find something interesting- a la the Daily Telegraph interpretation. Despite many findings that public interest does not mean of interest to the public.

Neither the current News code nor The Australian Press Council principles attempt definition.The APC principle states:

News and comment should be presented honestly and fairly, and with respect for the privacy and sensibilities of individuals. However, the right to privacy is not to be interpreted as preventing publication of matters of public record or obvious or significant public interest. Rumour and unconfirmed reports should be identified as such.

Perhaps it is not surprising in the circumstances that a sensible discussion about the public interest is difficult even when the term is brandished about in all directions as it was this week.

For starters it means something of serious concern or benefit to the public. In other words publication involving information about an individual, without consent is justified where this will advance the interests of the public through bringing to light information about matters that impact on the community as a whole or a significant section of the community. Publication is justified when it is in the public interest.

Still lots of wiggle room there, but with a bit of work and some specific examples, more useful guidance might emerge.

Competing universes at Senate Committee hearings on media reform

Kevin Rudd's immediate leadership prospects weren't the only things declared dead as the week ended. So too the four media reform bills.

Andrew Wilkie was right to describe the whole process as shambolic, pointing out that all seven crossbenchers were in favour of reform legislation, but not this lot as dished up with a week to take it or leave it, as originally explained.

The failure of the government to make, build, and explain the case for what it was on about, seek some input on what was to be proposed, make adjustments that would improve the bill, and sound out those with vital votes, provides another chapter for that bulging "poor examples" section of someone's policy development case book. What to expect if as has been reported the matter went to cabinet "under the line" without any documentation in advance, after a year or so of silence. It was all downhill from there

What was said in the Senate committee hearings on the reform bills and in submissions won't count for a row of beans now but it was nevertheless insightful into thinking about the media, regulation of any kind, and the current self-regulatory system.

Putting the merits of the fatally flawed proposal to one side, extracts of who was saying what are included below. They include Ray Finkelstein QC and others spelling out the rationale for regulation, self or otherwise, and the use of media power; Margaret Simons defining freedom of speech as a right enjoyed by media organisations only to the extent to which they serve the rights of freedom of speech of citizens; and Julian Disney listing the problems with the Australian Press Council self-regulatory scheme, and others similarly making the point that self-regulation isn't working despite improvements Professor Disney has produced.

On the other hand, we had Kerry Stokes on why the print media should simply be left alone to make money, and the Institute of Public affairs telling the committee the markets are so powerful even self-regulation should just be optional. 

And a couple of others for good measure.

Opportunity lost, big time. Where it goes from here is now entirely in the hands of media organisations themselves. Good luck to us all.

In the meantime these bits shouldn't be confined to the bin.

Deja vu: ALRC to look into privacy cause of action

I haven't tracked down the detail as yet, but after years of dithering and six months before a federal election will anyone be surprised that the whole idea of a statutory cause of action for breach of privacy-the subject of reams of anti-newsprint in News Ltd and other media self interested accounts- will as announced by Minister Conroy today

be referred to the Australian Law Reform Commission for detailed examination.

From whence it came with a recommendation in favour five years ago.

Supported by reports from the NSW and Victorian law reform commissions.

And by many of those who thought about the options and prepared a submission in response to the government's issues paper.

You've got to love them.

(Update: See a longer lament from Bruce Arnold of the University of Canberra on The Conversation.)

Heather Brooke in Sydney

Today's session at the Sydney Writers Festival with Richard Aedy facilitating a discussion with Heather Brooke from the UK and veteran journalist Alex Mitchell about journalism in the digital age was terrific. Brooke enjoyed it, tweeting it was great. You can catch an edited version on Radio National's Media Report tomorrow Friday at 5.30pm or anytime thereafter. 

Austen Tayshus-Manly Daily

Mitchell's story about donning the budgie smugglers to run dead in a swimming race with Idi Amin in order to get an interview is hilarious. I presume someone explained "budgie smugglers" to the non-plussed Brooke afterwards.

Brooke's later session with Waleed Aly posing the questions, was less successful. Aly seemed keener for an intellectual arm-wrestle than a conversation about the advertised privacy related topics. All a bit of a struggle.

At both sessions Brooke while welcoming the advent of WikiLeaks, poured a bucket on Julian Assange, on the basis of her dealings with him-difficult, devious, dictatorial, reckless- someone who fails to live up to the standards he expects of others. This Guardian review- a paper incidentially that Brooke thinks has to go broke because of its "free" on-line business model-of The Revolution will be Digitised, gives the flavour.

Brooke acknowledged some aspects of what WikiLeaks does might constitute journalism but that it is best described as a source/publisher. Mitchell, an old school, shoe leather, contact book journo who thinks there is much more to the craft than sitting at a computer screen or regurgitating what is put on the desk, didn't express a view but it was pretty clear that what Assange does is a million miles from journalism as Mitchell practiced it.

No one seemed to have the heart to mention that the MEAA gave Assange a Media Alliance union card, "confirming that he is a member in good standing with the Australian journalists." And that Wikileaks received the Most outstanding contribution to journalism award
at last year's Walkleys. 

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.

Can the media make a good fist of self-regulation?

The Finkelstein review report released in February didn't think so. It said the media had had the opportunity regarding print, had failed, and showed no sign of interest or capacity to address shortcomings. Separately it concluded that ACMA’s co-regulatory processes for television and broadcasting were cumbersome and slow. "The problems with both the external and self-regulatory mechanisms are inherent, and cannot be easily remedied by piecemeal measures." Hence a recommendation that a new statutory authority, the News Media Council, be established to set journalistic standards and handle complaints made by the public when those standards were breached.

 End of the world headlines that followed included:

"Media fears for freedom as watchdog unleashed" in The Australian

"Watchdog a 'threat to free press'" in The Australian

"Put simply, mooted muzzle would not work" in The Australian

"Bringing the media to heel" editorial in The Australian

"Media union to fight government control" in the Herald Sun

So this week, the Convergence Review in its final report stepped back from the Fink, suggesting the media be given another go, this time to achieve something even more complex than previously attempted, a self-regulatory scheme for all big news professional players regardless of platform (except the public broadcasters):

The Review proposes that the government first test the effectiveness of a self-regulatory arrangement that operates across all platforms. Under this approach, content service enterprises would be required to join and adequately fund an independent self-regulatory industry body which would develop self-regulatory standards for news and commentary and adjudicate complaints. As stated, this body would be predominantly funded by industry with some government contribution. The news standards body would set clear goals to be achieved within a specified time frame. If, on review, this industry-led body was not effective, the government would have the last resort option of introducing some direct statutory measures.

The Finkelstein stick has been transformed into the threat of a statutory regulator if they don't get it right this time. As Margaret Simons in Crikey (subscription) writes:

The Convergence Review Report has effectively concluded that Ray Finkelstein got the diagnosis right but the prescription wrong when he recommended statutory regulation for news media.

Perhaps the stick is worth waving but who would predict with any degree of confidence that a government three to five years hence would ever use it, regardless of how the proposed standards body performs? 

Government money might be something of an incentive to media leaders to move along recommended lines. So too the prospect of legal privileges being linked to such arrangements, although stronger language than "could" might make the point more effectively:

Membership of the news standards body could be a condition of retaining legal privileges currently provided for news and commentary in Commonwealth legislation. In particular, it seems reasonable that only those organisations that have committed to an industry self-regulatory scheme for upholding journalistic standards of fairness and accuracy should be entitled to the exemptions from the provisions of the Competition and Consumer Act 2010 concerning misleading and deceptive statements and from the obligations of the Privacy Act 1988 that would otherwise apply to those organisations. However, there is not the same argument for applying this requirement to laws protecting journalists’ sources. These laws apply to information collected by individual journalists, who might be freelance journalists rather than employees of an organisation.

The proposed communications regulator would have a role in the scheme including oversight of the adequacy of codes and capacity to act in the case of persistent or serious breaches. Chapter 4 of the Final Report has the details.

Given media hostility to the Fink, the proposed scheme reeks of pragmatism and realpolitick, and  comes with a load of qualifications about the prospects for real improvement in media standards. But given the state of play in Canberra it's unimaginable that the tough Fink line was ever a goer regardless of how you see the merits.

Media reaction to the report is, well a shade less alarm, although there is some of that, but in some instances, positive support. Chair of the Australian Press Council Professor Julian Disney welcomed the report, and wants prompt government action. The MEAA likes what it sees but thinks the recent strengthening of the Press Council with increased funding and commitment is already a big step in the right direction. Fairfax and some other players say yes, let's talk.

No prize for guessing News Limited says no way. It is yet to agree there is a problem, let alone articulate a better way forward. Its leadership credentials have been somewhat diminished by developments elsewhere in any event but it is far and away the biggest funder of the Press Council.

Comment from academe on The Conversation suggests it's all a far cry from what is really needed to lift standards.

Martin Hirst of Deakin University:

At best this suggested change amounts to a new set of dentures for the existing publisher’s poodle. It will be able to accept sanitised government funding in ways that will not upset the old-guard in the newspaper industry who see Armageddon in every attempt at regulation by government. There is no indication in this 170+ page report that there is any real problem or issue with media accountability and standards in Australia. This is a whitewash of the highest standard.

Alexandra Wake of RMIT

There are some strong recommendations which deserve to be applauded, but the bottom line is, the recommendations of the Convergence Review will likely do little to solve the problems that prompted public concern in the United Kingdom and in Australia about news organisations their culture, ethics and practices..Unless forced, I doubt the new standards body will be able to agree to enforce a common media code aimed at promoting fairness, accuracy and transparency.

A little devil overlooked in the Fink detail

The Age

These things can happen to anybody, and I sure could use a proof-reader, but the Finkelstein report (paragragh 7.15) refers to the the late Creighton Burns who went on to become Editor of The Age as "Crayton Burns." When he died in 2008, Michelle Grattan described him as "an ornament to his profession." Burns was The Age correspondent in Washington during my time there with the Australian Embassy in the seventies, so I'm ancient enough to remember such things as the correct spelling of his first name.

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):

Reaction to the Finkelstein report as reported, or not, by the media

Most journalists particularly those sub-editors responsible for headlines aren't in any doubt: it's all gloom and doom. But the Chair of the Australian Press Council Professor Julian Disney thinks Finkelstein (here with Professor Ricketson) has put his finger on the problem, media standards, but would still like the media itself to have first crack at doing something serious about it. You wouldn't know from the reporting that even News Limited CEO Kim Williams is prepared to talk about this around the Press Council table next week. Or that a number of academics who work in this field generally welcome what Finkelstein proposes. (Admission: I haven't managed to read the 477 page report as yet. And of course it feeds into the Convergence review so it has a long way to run before any government action). But back to the media reporting, all based on reading all that fine print I'm sure..

(Update: Monday and I have read most of it as the discovery of this blooper confirms.l But Margaret Simons in Crikey was the one to selflessly sacrifice her weekend to produce this guide  to what's actually in the report-a sterling effort.)

Assange spills the coffee as well as the beans

The Sydney Morning Herald headline Revealed:US plans to charge Assange" led to a coffee spill here this morning.The SMH and other media report that WikiLeaks release of internal emails from the shadowy Strafor company include one from January 26 last year in which the company's vice-president of intelligence, Fred Burton, responded to a media report with the comment:

''We have a sealed indictment on Assange.''

Suitably tagged with warnings to ''Pls [please] protect'' and ''Not for pub[lication]''.

So you might imagine I was calling "stop the presses" after cleaning up the coffee because my predictions for press freedom developments in 2012, all published this week in the February-March edition of The Walkley Magazine include as prediction No 1:

Julian Assange and WikiLeaks will continue to feature prominently in "freedom discussions" and despite the fact it's election year, Assange will not face charges in the United States."

Too late of course. Over another latte I figured the best line is what would Stratfor know (gulp)? To Walkley readers, keep faith, I'm not done yet. Neither is Assange.

The Greens Senator Scott Ludlam is asking questions according to AAP:

"What we need to know is whether the Australian government was tipped off, or whether the prime minister read about this in The Sydney Morning Herald this morning," he told reporters in Canberra. The Australian government needed to take "a very straight line" with the US on the issue. "That we will not permit, and we will not tolerate his transfer to the US, to face charges that could potentially land him in prison, potentially for decades."

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.

Difficult to make predictions, especially about the future

Wikimedia Commons-Bastique

 Ah, someone (Dan Quayle?) somewhere said it, and I know what they mean.

While I'm beavering away on predictions on press freedom issues for 2012 for publication in the Walkley Magazine February edition, my 2011 lot weren't waaaay off the mark:

• Prime Minister Gillard’s commitment to “let the sun shine in” notwithstanding, the hard yards lie ahead in implementing reforms associated with the Freedom of Information Act introduced in November. (We've seen improvements, but hey, this was low hanging fruit and I'll take it.)

• The Baillieu government will move on FoI changes in Victoria, leaving South Australia and Western Australia still in need of prompting to join the FoI reform bandwagon. (In the ballpark. Extremely modest and limited reform legislation limped into the Victorian Parliament before year end, but is still to emerge. No movement at the station in SA or WA.)

• Talk a few years ago about the need to look at private-sector disclosure obligations (and protection for private-sector whistleblowers) will remain just that. (See 1 above.)

• Shield laws for journalists will be influenced by the emergence of WikiLeaks– who or what is a journalist and in what circumstances should the presumption of protection apply? (Yes. Three state attorneys general are wedded to the idea that bloggers can't be journalists.)

• Leakers of information of a kind that doesn’t qualify as wrongdoing will continue to run risks to their careers and penalties at law. (See 1 above.)

• The adequacy of media standards, ethics, responsibility and self-regulation may also come in for discussion.(Yes, and I'd never even heard of Judge Finkelstein at the time.)

• Media interests may be relaxed that consideration of reform of privacy laws will continue at a snail’s pace. (Snail's pace yes, but some media interests were frenzied at the prospect.)

• Then of course, there are myriad other issues, including access to court information, and getting the balance right in defamation law. (See 1 above.)

• Even censorship will get a run in 2011, with the Australian Law Reform Commission given a reference in December “to conduct a review of classification in Australia in light of changes in technology, media convergence and the global availability of media content.” (Yes.)

• The most confident prediction? A busy year ahead. (Shame to take the money.)

Any crystal ball gazers like to try their hand at the year ahead?

Definition of journalism

Oops.

In two recent posts, now corrected, I mistakenly said the Commonwealth Evidence Amendment (Journalist Privilege) Act 2011 included a definition of "journalism." It doesn't. I was alerted to the possible error by Kate Stowell an Australian completing LL.M studies at the University of Edinburgh who has just submitted her thesis on 'Journalist source protection in Europe and Australia: a study in human rights and evidence law'. Thanks Kate-more of her below.

The error of my ways

In December 2010  Senator Scott Ludlam in a senate report on the bill said The Greens would seek to amend definitions to include:

"journalism means the reporting in a news medium of facts which are, to the best knowledge of the person reporting those facts, fair, true and accurate, and includes incidental processes such as the gathering of information for that purpose."

 

When the issue came on for Senate debate Senator Ludlam referred to earlier negotiations to win Government support for Green amendments. While not mentioned the definition of journalism appears to have been a casualty and was not put. Other Green amendments passed.

The bill as passed by the Senate went through the House unchanged.

My memory was playing tricks in November 2011 when I went looking for definitions in commenting on shield law developments- I copied Senator Ludlam's comment from the committee report, thinking wrongly that the definition along with other Green amendments had made it into the law as passed. Update 8 December-I did the same thing with the definition of journalist initially posting the Ludlam foreshadowed amendments in both cases not the words used in the act as passed. For the purposes of clarity (at last) the definitions in the Commonwealth act are:

informant means a person who gives information to a journalist in the normal course of the journalist’s work in the expectation that the information may be published in a news medium.

journalist means a person who is engaged and active in the publication of news and who may be given information by an informant in the expectation that the information may be published in a news medium.

news medium means any medium for the dissemination to the public or a section of the public of news and observations on news.
Thanks to Stilgherrian for correcting me on this one.)

Kate Stowell in Edinburgh spots it

Kate is a University of Sydney law graduate who has worked as a radio journalist for ABC and SBS, and has recently picked up some contract work with the BBC. Earlier this week she presented her findings at the Reuters Institute for Journalism at Oxford, where she tells me, there was great interest from the audience in the Australian source protection 'dilemma'....

Kate hopes to use her thesis to branch into the world of written/online publishing...If anyone out there is looking for a likely candidate, who knows plenty about shield law related issues and has a great eye for detail, I can put you in touch.

Stilgherrian is, well Stilgherrian

Walkleys for WikiLeaks and outstanding investigative journalists

Congratulations to all winners of 2011 Walkley Awards for Excellence in Journalism. The award for Most outstanding contribution to journalism to WikiLeaks (and the response from Julian Assange via video bucketing the Prime Minister) is attracting plenty of attention here and around the world as debate continues about whether what WikiLeaks does is journalism.The Gold to Sarah Ferguson and colleagues at ABC Four Corners for the program "A bloody business" recognises the big impact of this story. The award for Investigative journalism to Richard Baker and Nick McKenzie of The Age who utilised Freedom of Information among other means to expose an international network of corruption involving a subsidiary of the Reserve Bank of Australia deserves special mention. 

WikiLeaks and journalism

The Walkley Foundation and the Media Entertainment and Arts Alliance have no doubt that WikiLeaks is journalism:

This year’s winner has shown a courageous and controversial commitment to the finest traditions of journalism: justice through transparency... This innovation could just as easily have been developed and nurtured by any of the world’s major publishers – but it wasn’t. Yet so many eagerly took advantage of the secret cables to create more scoops in a year than most journalists could imagine in a lifetime. While not without flaws, the Walkley Trustees believe that by designing and constructing a means to encourage whistleblowers, WikiLeaks and its editor-in-chief Julian Assange took a brave, determined and independent stand for freedom of speech and transparency that has empowered people all over the world. And in the process, they have triggered a robust debate inside and outside the media about official secrecy, the public’s right to know, and the future of journalism.

This is likely to play into the current debate in Australia about a range of media related. issues. NSW Attorney General Greg Smith who showed himself to be an old media man in recently questioning whether even Crikey is engaged in journalism may have choked on his rice bubbles when he saw this. His NSW shield law (nor that proposed by WA) doesn't define "journalism" thus leaving it to the courts the testing of meaning in the contemporary context.

Commonwealth shield law defines journalism and journalist in broad terms likely to cover WikiLeaks and Assange in the event of interest in an Australian source. (Correction 1 December 2011: it defines journalist and news medium but not journalism.) Whether this law would enable him protect a source of the kind of information published is perhaps moot if the sources are truly anonymous.There is a public interest exception unlikely to protect identity where information of national security significance is involved. And plenty of criminal law relevant to such a source but virtually no whistleblower protection at the Commonwealth level despite years of promises.

On the broader front all sorts of other words have been used to describe WikiLeaks. After initial over the top and prejudicial comments by the Prime Minister and Federal Attorney General McClelland referred to by Assange last night, the attorney confirmed no crime had been committed at that stage but “the Government remains extremely concerned about the unauthorised and irresponsible distribution of classified material.” 

Further afield US Vice President Joe Biden last year called Assange a "high tech terrorist" while Republican presidential candidate Newt Gingrich preferred "enemy combatant."

However even in the US where differences prevail the weight of considered opinion seems to be that WikiLeaks is a journalistic entity or an instrument of journalism and part of the reality of the media these days. John Naughton writing recently in The (UK) Observer cites a paper by Professor Benkler of Harvard that supports this view, criticising denial by some that "in the end, WikiLeaks and traditional news organisations are in the same business – namely publishing, in the public interest, information that powerful agencies in society wish to keep secret."

Investigative journalism

Richard Baker and Nick McKenzie of The Age were rewarded with the Walkley for producing "more than 60 exclusive reports on Australia’s first case of foreign bribery, a story they originally broke in May 2009 when they revealed that Securency, a subsidiary of the Reserve Bank of Australia (RBA), had paid million-dollar commissions to win global banknote contracts.. Baker and McKenzie’s investigation has involved extensive source cultivation, Freedom of Information requests and the painstaking uncovering of a complex money trail which spans Asia, Europe and Africa. Their reporting has sparked raids, arrests and contributed to charges."

FOI may have been a friend but was also a frustration at some stages of their journey.

Commiserations to those nominees who missed out in this category including last year's winner Linton Besser of the Sydney Morning Herald who continues to use FOI to advantage.

Federation as usual as shield laws don coat of different colours

Three Liberal party state governments are taking a different line from the Commonwealth on important aspects of shield law protection for journalist sources, the most recent instance in Western Australia where Attorney General Christian Porter has introduced the Evidence and Public Interest Disclosure Legislation Amendment Bill. The bill will amend the Evidence Act 1906 to include shield law provisions and the Public Interest Disclosure Act 2003. The whistleblower changes would extend protection to those who go public as a last resort and have been welcomed by the leading expert Professor AJ Brown of Griffith University. WA is set set to join NSW and Queensland by including this element in the whistleblowing regime.

On shield law protection, a key point of claimed difference between the Commonwealth and the states is what constitutes journalism and who qualifies as a journalist, although the extent of the difference in a practical sense is unclear. Provisions in the WA bill follow to some extent the NSW Evidence Amendment (Journalist Privilege) Act which received assent in June.

Both states eschew the approach taken in the Commonwealth Evidence Amendment (Journalists‘ Privilege) Act 2010, rejecting its Greens sponsored/ALP supported broad definitions and seeking to confine the protections to professionals, leaving uncertainty about what journalist and journalism mean to the courts.

The Victorian Government foreshadowed similar moves in March but is yet to introduce legislation.The issue was in the news there last week with Cameron Stewart of The Australian in the witness box being asked about the identity of sources regarding details given to him about an AFP terrorist raid- sources unlikely to be protected by the privilege because of a national security exception, even when a shield law is passed.

In addition to the scope issue, the Western Australian bill would create a number of other exceptions to the general right to claim journalist privilege. One is where disclosure would be an offence under another law. This brings into play the draconian s 81 of the WA Criminal Code which creates a crime for the broad and general offence of unauthorised disclosure of information. The government says the exception is necessary in order to protect "sensitive information" and the bill narrows the effect of s 81 for the purposes of shield law protection to information regarding matters of serious misconduct that would justify a public interest disclosure. (Just as well as the Court of Appeal ruled recently that s 81 imposed a duty not to make a disclosure to unauthorised persons of information relating to the business of a government department or the contents of any official papers including internal reports or documents of that department-decision at 180)

WikiMedia Commons Liftarn

 A journalist  however won't enjoy the benefit of the privilege where s 81 as modified by the bill applies, unless the confider has, prior to disclosing to the journalist, previously disclosed the information to the chief executive or other designated public authority in accordance with the Public interest Disclosure Act.

In WA journalists (whoever they are) and those in government who talk to them (they know who they are) will need to do their homework before celebrating the passage of this legislation-or claiming to be clear about what it covers.

A pity the opportunity isn't being taken to do something about s 81, limiting the offence to circumstances where an unauthorised disclosure is likely to cause harm to a serious identified public interest. (As recommended by the ALRC to the Federal government almost two years ago in respect of s 70 of the Crimes Act -on which not a word since.)

Another exception to journalist privilege proposed for WA is where there have been unnecessary and unwarranted invasions of privacy by journalists or other persons who provide information to journalists. Is that the sound of some jumping from the building in Holt St?

Read on if you are really interested. You have been warned...

Orders in Bolt case sound like jackboots in Holt St

Quite a contrast in these comments on Friday on the orders issued in the Bolt case.

David Marr  in Fairfax papers suggested the order requiring publication of a notice drafted by the judge alongside Bolt's regular column and of equal size on two separate occasions over the course of the next two weeks means Bolt and the Herald Sun got off lightly:

Really, Bolt and his editors should be breaking out the champagne. If the nine had sued in defamation, the paper might now be signing cheques for a few million dollars. The legal bills won't be cheap - the paper has been directed to pay most of the trial costs - but Bolt's ugly columns have not cost much more than a fair dose of embarrassment.

Chris Merritt in The Australian on the other hand thinks an order like this means the jackboots can't be far behind::

(The law) has already had a corrosive effect not just on free speech but on the Federal Court's standing. It has encouraged (Justice) Bromberg to believe he is required by law to take on the role of uber-editor, criticising words and phrases and taking it on himself to list material that Bolt should have included in his columns. Within days, the nation will be treated to a spectacle that has no place in a free society. Bromberg, using the coercive power of the state, will force the free media to publish the judge's opinion. There is a solid line of precedents to support such a course, and those precedents stretch all the way back to Berlin in the 1930s.

Marr sees the need to amend the act, acknowledging some limit should be set on this type of public speech, albeit at a higher level:

The anti-vilification provisions of the Racial Discrimination Act used to attack Bolt are drafted far too broadly. They outlaw speech that is merely offensive or insulting. Vigorous public discussion in a free society is impossible without causing insult and offence.... But short of abolishing these anti-vilification protections entirely, no amendment of the law would have helped the hapless Bolt. He didn't just offend and insult. Justice Bromberg found the columnist's efforts were also likely to humiliate and intimidate the fair-skinned Aborigines attacked in those columns. Bolt ticked all the boxes in the Racial Discrimination Act. And the judge clearly signalled that in his opinion the columnist had also defamed the nine by accusing them of the cynical late-life adoption of Aboriginal identity.

Merritt says the orders strengthen the argument that the law should be repealed and links the Bolt matter to other developments:

Those who see this as a simple debate about journalistic standards are wilfully blind to the horrific course the law is taking in this country....This issue will not go away. It will fester up to the next election, creating one more focus for the opposition to chip away at the Gillard government's emerging vulnerability on free speech. Very soon, the government will reveal its formal position on whether it believes it should change the law to encourage Australians to sue each other for breaches of privacy. Those who believe this proposal is anything but a sop to Bob Brown's hatred of the media are again wilfully blind.

Marr notes the decision not to appeal:

The Herald Sun put out a statement after yesterday's decision: ''All Australians should have the right to express their opinions freely, even where their opinions are controversial or unpopular to some in the community.'' Absolutely correct. But surely not even in this awkward jam is Bolt's paper arguing that columnists are free to get it so comprehensively wrong when they mount ferocious attacks on people. There are limits.

Merritt thinks it's now up to the government to act and suggests limits are the problem:

Labor needs to decide where it stands on free speech. Remaining silent in the face of such erosion of a fundamental human right will send a very clear message.

For mine, Marr is close to the money. Merritt continues along a well worn path-over the top.

The orders by Justice Bromberg include this text of the notice to be published: