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“A Year in Media Law: the view from Australia” – Peter Bartlett

This has been a challenging year for the media in Australia, with traditional business models thrown into turmoil by new media platforms. There was little cheer for the media on the legal side, either.

While there were not too many defamation claims that went to judgment in the last 12 months, the media did not do too well.

The Ten Network went down for $85,000 to Nicole Cornes (former Labor candidate and wife of AFL media personality Graham Cornes), 2UE for $176,296 to former Guantanamo Bay inmate Mamdouh Habib, Alice Springs News for $100,000 to real estate agent David Forrest, and Yahoo! for $225,000 to former Yugoslav music promoter Michael Trkulja, for linking a Herald Sun article about him being shot in 2004 to a website called “Melbourne Crime”. Significant costs were awarded on top of these defamation claims. And after a five-week hearing, The Australian Financial Review had a partial loss to former bankrupt solicitor Bryan McMahon.

A cause of action for invasion of privacy

The question of whether Australia should implement a statutory tort for invasion of privacy continues to be debated. In its 2008 report, the Australian Law Reform Commission (ALRC) considered the existing patchwork of privacy protections, and recommended that a statutory cause of action for serious invasions of the privacy of natural persons be introduced by federal legislation. In 2009 and 2010, the New South

Wales and Victorian Law Reform Commissions respectively made similar recommendations.

In September 2011, the Department of the Prime Minister and Cabinet released its Issues Paper: A Commonwealth Statutory Cause of Action for Serious Invasion of Privacy, and invited submissions to inform its response to the Law Reform’s proposals.

The many submissions made to date appear to support the new cause of action proposed. The Victorian privacy commissioner argued that existing privacy laws are fragmented and inadequate to meet the privacy challenges faced by technological developments.

My view remains that the very limited number of complaints to the Australian Press Council and Australian Communications and Media Authority (ACMA) do not warrant a statutory tort. It’s like cracking a nut with a sledgehammer.

I found that while the reports from the various law reform commissions contain excellent analyses of the history of privacy law in Australia, and the laws as they stand in the US, UK and Europe, they fail to recognise sufficiently that the US and Europe are in a totally different situation to Australia. The US has a strong constitutional protection of freedom of speech. Europe has the European Convention on Human

Rights. The UK has the Human Rights Act. The reports’ authors make a huge jump from thorough historical analysis to claim that we need a statutory tort in Australia.

Public discussion and submissions are continuing, but it seems likely a statutory cause of action for invasion of privacy will eventually be introduced here. It’s to be hoped any such legislation will balance a person’s right to privacy with the broader public interest and the protection of freedom of expression.

In my view, such a law will not be used by the less privileged people in our society. It will be used by those involved in wrongdoing, those with financial muscle or those that seek to use the media one day but want privacy the next day.

The Finkelstein Inquiry

After much anticipation from media stakeholders, Ray Finkelstein QC delivered the Report of the Independent Inquiry into Media and Media Regulation in February 2012. It provides a good academic and judicial analysis of the current state of media regulation in Australia. It also includes a detailed analysis of public perception of media performance in recent decades, and reveals the public’s somewhat substantial lack of confidence in the Australian media.

When Finkelstein assessed Australia’s current assortment of external and self-regulation mechanisms, he concluded they are not enough to keep the media accountable.

His report proposes two key changes. Firstly, it recommends establishing a new body, the News Media Council (NMC), to replace the Australian Press Council and subsume ACMA’s functions for standards and complaints. This body would have jurisdiction in relation to news and current affairs coverage on all media platforms. It would be responsible for setting media standards and handling complaints where those standards are alleged to have been breached. Unlike the current Press Council, the NMC would be government-funded, though Finkelstein is emphatic that it should be free from government influence.

While having the NMC would provide a clearer and coherent form of regulation, there’s no guarantee the government will implement the proposal. The NMC would require quite substantial government funding. Indeed, the NMC would require an enormous amount of resources for it were to resolve all the complaints it receives within days, as is proposed. And being funded by the government, as opposed to being funded by the industry, is inevitably going to draw criticism.

Concerns that the NMC would be influenced or pressured by politicians from time to time would be difficult to counter. We have already witnessed the constant criticism of alleged bias at the ABC under the Howard government and, more recently, the Gillard government’s criticism of The Australian and News Limited generally.

The second key change proposed by Finkelstein is the implementation of a new “right of reply”, which would represent one of the modes of redress enforceable by the NMC. Among other things, this aims to redress the cost, complexity and long duration of  defamation litigation. While this proposal would have many benefits, it is important to note that it may be limited in the group of individuals who would consider it a useful tool when alleging loss from defamation or unfair reporting. It will be interesting to see how, if at all, the government responds to the report.

Suppression orders and the Access to Justice (Federal Jurisdiction) Amendment Bill 2011

An increase in the number of suppression orders issued in Victoria in recent years has given rise to talk that orders are being made too frequently, and are coupled with an unclear scope or legal basis. Such orders impinge on the ‘fundamental prescript’ of open justice. It is clear that the currently wide-ranging law regarding the power to issue suppression orders leaves much to be desired in Victorian and Commonwealth jurisdictions.

In 2010, the Standing Committee of Attorneys-General (SCAG) recommended the uniform implementation of the Court Suppression and Non-Publication Orders Bill 2010 (SCAG Bill) in each jurisdiction. The SCAG Bill provided an even broader scope for courts to issue suppression orders than that which currently exists under Victorian and Commonwealth laws.

For example, suppression had merely to be considered as being “in the public interest” in order to have the requisite legal basis. To date, NSW remains the only jurisdiction to have implemented the model provisions.

However, on November 23, 2011, then federal attorney-general Robert McClelland announced the introduction of the Access to Justice (Federal Jurisdiction) Amendment Bill 2011. This is largely based on the SCAG Bill, but has been amended so the grounds on which suppression orders can be issued are the same as those that currently apply.

This amended bill represents a step in the right direction. It excludes the “public interest” ground for suppression proposed by the SCAG Bill, and requires the court to consider the over-arching public interest in open justice. Overall, it provides greater clarity than current law on the legal grounds, scope and duration of suppression orders, and expressly acknowledges the standing of the media to oppose an order.

Robert McClelland stated that he was confident this Bill would result in suppression orders only being made when they were “clearly justified, and in as narrow terms as necessary to achieve their purpose.” The Bill has been passed by the House of Representatives and is now under review by the Senate.

It is hoped that the Victorian government will take similar steps to better codify the currently broad and unclear law regarding suppression orders there. However, caution should be taken to ensure that the primacy of open justice is upheld, and that any legislative change will not broaden the current scope to suppress court reporting.

Suppression orders and the Rinehart appeal

In late 2011, the NSW Court of Appeal revoked the suppression orders that had been issued regarding a case brought against mining billionaire Gina Rinehart by three of her four children. The case had been instigated in a bid to remove Rinehart as trustee of the multi-billion family trust, and had received substantial media attention.

On September 13, 2011, Justice Paul Brereton had made an order under section 7 of the NSW Court Suppression and Non-Publication Orders Act 2010 prohibiting the disclosure, by publication or otherwise, of any information as to the relief claimed, or any pleading, evidence or argument filed, read or given in, the proceedings.

The decision to revoke this and other interim orders was sound in that it expressly protected the interests of open justice from unnecessary incursions. In this, Chief Justice Tom Bathurst and Justice Ruth McColl emphasised that open justice was “one of the most fundamental aspects of the system of justice in Australia [ensuring] public confidence in the administration of justice”. They considered that suppression orders should only be made “in exceptional circumstances”, and while noting that there were a number of recognised exceptions to the principle, they decided this case did not fall within those exceptions.

Subsequent attempts by Gina Rinehart to maintain secrecy over the case have also been rightly rejected. The NSW Supreme Court rejected her application in March 2012 when she argued that having aspects of the dispute could endanger the lives of herself, her children and grandchildren. Justice Michael Ball held that any claims of such endangerment were not credible. On March 9, 2012 the High Court also refused to grant Rinehart leave to appeal.

While this saga now seems to have concluded, Rinehart’s applications for suppression had two beneficial consequences. First, it is good to see that appropriate conclusions were reached by the courts, and that primacy was given to the need to protect open justice. Second, the heavy media coverage of the issue placed suppression orders on the news agenda, providing good exposure to the public regarding their rights to be informed about court proceedings.

Hogan v Hinch and the implied right to freedom of political communication

In March 2011, the High Court of Australia rejected a challenge by Derryn Hinch regarding the validity of section 42 of the Serious Sex Offenders Monitoring Act 2005 (Vic). This section permits suppression orders to be made under proceedings  pertaining to sexual offences, where it is “in the public interest” to do so.

The notoriously outspoken broadcaster had been charged with contravening orders made under that provision, following his well publicised naming of sex offenders on his website and at a rally at Victoria’s Parliament House in 2008. Hinch alleged that section 42 was invalid because it infringed constitutional implications such as open justice and the freedom of political communication. The High Court was unanimous in rejecting this on all grounds.

Interestingly, an argument had been raised by a Commonwealth submission that the Lange freedoms of political communications should be limited to communications regarding only federal government or politics. Thankfully, this submission was rejected. Chief Justice French of the High Court concluded that: “The range of matters that may be characterised as ‘governmental and political matters’ for the purpose of the implied freedom is broad. They are not limited to matters concerning the current functioning of government. They arguably include social and economic features of Australian society. For these are, at the very least, matters potentially within the purview of government.”

While the right to freedom of political communication was not considered to be unreasonably burdened in this case by section 42, it is good to see the court rejecting an argument that the already narrow right should be further limited to Commonwealth matters.

Lex Wotton and freedom of speech

The High Court also held that the implied constitutional right to freedom of political communication was not unreasonably burdened by parole restrictions placed on Lex Wotton. Wotton had been convicted of rioting causing destruction, after he took part in a riot on Palm Island that followed Cameron Doomadgee’s death in police custody in 2004. On being released from prison, Wotton faced 22 conditions of his parole that were issued under the Corrective Services Act 2006 (Qld). This included conditions such as a prohibition from attending public meetings on Palm Island without the prior approval of the corrective services officer, and a prohibition from receiving any direct or indirect payment or benefit from the media. On a more general note, the Act makes it a criminal offence for a journalist to interview prisoners, including those on parole.

The restrictions were essentially a gag order, which prevented Wotton from engaging in his community and being interviewed by, or providing a statement to, the media. While the majority of the High Court did accept that such restrictions and prohibitions burdened the freedom of political communication, it upheld them as reasonable and necessary to serve other ends.

Such a judgment is disappointing in its failure to take the opportunity to enhance our very limited protections for freedom of speech. That Wotton can be prevented from communicating with the media or engaging in public debate, demonstrates just how limited our rights to free speech really are.

Journalists and the criminal law

The strong arm of the law was criticised as being too heavy-handed following the arrest of Ben Grubbs, a journalist with Fairfax, in May 2011.

Ben Grubbs was arrested at a Gold Coast Online Security Conference for having received “tainted material”, that is, photos taken from Facebook that were used to demonstrate flaws in Facebook’s privacy settings. Grubbs was released after questioning, though his iPad was seized. Grubbs was also advised that the police would be making a complete copy of the information on his iPad – a real concern if any confidential information had been stored on the device. Had any charges been laid, Grubbs faced penalties of up to 20 years’ imprisonment.

On another note, charges have been laid against journalist Rahni Sadler, of the Seven Network, and former lawyer Andrew Fraser for communicating with prisoner Bradley Murdoch. In July 2011, Seven broadcast a recorded phone conversation between the notorious prisoner and Fraser. The program, produced by Sadler, raised questions about Murdoch’s 2005 conviction for the murder of British backpacker Peter Falconio, and the abduction of Falconio’s girlfriend, Joanne Lees.

Charges were laid by Correctional Services on the basis that Murdoch was interviewed without the consent of the executive director of the Northern Territory Corrective Services. The case was adjourned in the Darwin Magistrates Court on February 29, 2012 until April 4, 2012. This will be an interesting case to follow.

Shield laws and the protection of sources

Welcome steps have been taken on both a federal and a state level to recognise that there are circumstances where a confidential source for journalists should be protected. Such legislation is completely justified in that it enables journalists to investigate and publish public interest stories which may otherwise be stymied by fear of prosecution.

The federal parliament passed the Evidence Amendment (Journalists Privilege) Bill 2010 in March 2011, which aims to protect journalists from being forced to reveal confidential sources.

The Greens secured an amendment to extend the definition of “journalist” as “a person who is engaged and active in the publication of news”. Notably, this will likely extend the definition, and the protection, to bloggers, citizen journalists and others who disseminate news online.

Tasmanian Independent MP, Andrew Wilkie, argued that this broader definition was needed so as to “recognise the rapidly changing face of news, news mediums and the people who deliver it.”

Victoria, NSW and WA have since announced plans to introduce similar shield laws. Each also plans to create a rebuttable presumption that revealing confidential sources should not be required of journalists in court. However, all states have rejected the broader definition of “journalist” as found in the federal legislation.

While these developments appear positive, journalists are still faced with attempts to identify their sources. Justice Lucy McCallum ordered Fairfax reporters to disclose sources in the Helen Liu case (the decision is under appeal). Gina Rinehart is seeking the disclosure of sources from the West Australian.

Andrew Bolt and the Racial Discrimination Act

On September 28, 2011, the Federal Court held that controversial columnist Andrew Bolt had breached section 18 of the Racial Discrimination Act. Nine Aboriginal applicants had brought a class action against Bolt and publisher Herald and Weekly Times, claiming that Bolt had unfairly distinguished them as “fairskinned” Aborigines who sought advantage such as winning grants, prizes and career opportunities, by identifying themselves as Aboriginal.

In his carefully worded, yet clearly critical, judgment, Justice Mordecai Bromberg found that “fairskinned Aboriginal people (or some of them) were reasonably likely, in all the circumstances, to have been offended, insulted, humiliated or intimidated by the imputations conveyed in the newspaper articles” published in the Herald Sun.

Bolt has declared that this judgment represented a “terrible day for freedom of speech in this country”. He wrote that rather than now writing about Aboriginal identity, “[It’s] simply safer to stay silent, or write about fluffy puppies instead.” The Herald and Weekly Times has announced that it will not appeal against the Federal Court ruling.

We are seeing more complaints against the media under racial discrimination legislation.

Peter Bartlett is a partner with Minter Ellison:

This piece originally appeared in the 2012 Australia Press Freedom Report and is reproduced with permission and thanks.

1 Comment

  1. Marshall Hall

    Nice work Peter. That was a good read.

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