AUSTRALIAN Press Council Vol. 18, No. 1. February 2006 ISSN 1033-470X New Defamation Laws: A Guide What does the new uniform defamation legislation mean for publishers, editors and journalists? Press Council Policy Officer, INEZ RYAN, offers some guidance.

he Australian Press Council was general agreement that the SCAG draft outside of the courts. The intention of the is pleased to report that its was preferable, and the final draft was sent offer of amends procedure is to provide concerted efforts over the to the states and territories to be passed into both plaintiffs and defendants with an years to achieve a uniform legislation. This model Defamation Act has incentive to resolve a defamation dispute defamation law have borne now become law. The only state which did at an early stage, without resorting to fruit.T A Defamation Act 2005 was passed not adopt fully the model law was Tasmania, litigation. in each of the states and is operational from which retained the right of action on behalf 1 January 2006. The territories have of the dead. The Australian Capital Territory In order to be able to claim a defence indicated their intention to pass the and the Northern Territory were to follow under this section, an offer of amends legislation in the next few months. As a suit by adopting the model Defamation Act must be in writing and must include an result, the federal government has pulled later in 2006. offer to publish a correction. The offer of back from its threat to introduce a national The new Defamation Act in effect adopted amends may include an offer to publish an defamation law. the common law approach to most matters apology, an offer to pay compensation, or There had been a number of attempts at in defamation and clarified that where juries particulars of any corrections or apologies establishing uniform defamation law in were used the jury would determine whether already made prior to the date of offer. the 1980s and 1990s. In 2001 the Press the publication was defamatory and whether Any apology made by the publisher does Council initiated action to reform defences succeeded, and judges would not constitute an admission of liability. determine damages, if any. The reforms are defamation law, particularly aimed at the If a publisher’s offer is accepted and the development of uniform law in the various intended to harmonise laws across , publisher carries out the terms of the offer, state and territory jurisdictions. At the but will also bring a number of significant a plaintiff cannot continue or enforce an time that the Council took up the matter, benefits for editors and publishers as well as the issue had been removed from the agenda plaintiffs. These benefits include the action for defamation, although the of the Standing Committee of Attorneys- introduction of an offer of amends system publisher may be ordered to reimburse the General (SCAG). This initiative first led to together with a new defence based on it; the plaintiff for any expenses incurred as a the changes to NSW defamation law and, extension of the truth alone defence to all result of accepting the offer. with the assistance of the then federal AG, jurisdictions; the removal of the infamous If a publisher makes a reasonable offer to Daryl Williams, the issue was put back on “7A” hearings and the return to a single trial make amends and the offer is not accepted the SCAG agenda. regardless of the number of imputations; the publisher can use such refusal as a caps on damages; and a clarification of the The NSW Attorney-General persuaded his defence to an action for defamation. In requirements of qualified privilege. colleagues to develop a draft uniform Act. determining whether the offer was Around the same time, Daryl Williams’ The Council has developed this practical reasonable a court is required to take into successor, Phillip Ruddock, drafted a guide for editors and readers who want to account any correction or apology which putative national law, which would replace know what is different in defamation has been published and the prominence the state laws if the states could not agree legislation as a result of these changes. This given to such correction, and the length of on uniformity. There were a number of is not intended as legal advice and, in any time between the publication of the areas of disagreement between the doubt as to their rights and obligations, Commonwealth and the states, on issues readers and editors are advised to still consult defamatory material and the publication including whether corporations could sue, with legal advisers. of the correction or apology. The court whether juries would be involved and may also consider whether the offer was whether truth alone would be a defence. rejected because of a disagreement With input from interested parties, Resolution of disputes without between the plaintiff and the publisher as including the Press Council and litigation to the imputations carried by the published representatives of the major publishers Perhaps the most significant reform material (i.e. where the parties disagree as and broadcasters, both the state and federal introduced in the uniform legislation is the to the meaning or interpretation of the proposals were developed further. There procedure for resolving defamation disputes words published). 2 Australian Press Council News, February 2006

Restrictions on bringing an action for defamation other imputations that are substantially true and the damage to The uniform legislation places some restrictions on who may reputation caused by the untrue imputations is no greater than that commence an action and the circumstances in which such action which is caused by the true imputations. An example given by the may be commenced. Corporations who been defamed cannot court is where an article has accurately stated that an individual bring action unless they are “excluded”, i.e. a corporation can was a murderer, but the article incorrectly states that the individual only bring action for defamation if it is a non-profit organisation has been charged with murder. If the plaintiff then pleaded that the or if it has fewer than ten employees. This restriction should imputation that he had been charged with murder was defamatory, prevent actions similar to the infamous “McLibel” case. the defence of contextual truth might be relied upon. The notion of “contextual truth” can be difficult to grasp but, as far as It should be noted, however, that although the corporation itself editorial policy is concerned, it is best to ensure that any statement cannot be a plaintiff in a defamation action, an individual associated that is likely to damage a person’s reputation is substantially true. with a corporation may bring an action. If an individual is perceived by the community as being the same as the corporation, There are two components to the defence of qualified privilege as for example, the defamation of the corporation may result in formulated in the uniform legislation. The defendant must believe damage to the reputation of the individual, which could result in on reasonable grounds that the recipient has an interest in the litigation. information published and the defendant’s conduct in publishing the material must have been reasonable. The following issues are An action for defamation must be commenced within one year listed as being appropriate to be taken into account by the court from the date of publication. However, it should be noted that this when deciding whether the publisher’s conduct has been period may be extended to three years if the court is satisfied that reasonable: it was not reasonable in the circumstances for action to have been commenced within one year. • The level of public interest in the published material • The extent to which the published material relates to the Section 10 of the uniform legislation prevents an action from performance of the public functions or activities of the person being brought with respect to the defamation of a deceased who has been defamed. person. An exception to this is those actions brought in Tasmania, • The seriousness of any defamatory imputation which has omitted this section from its legislation. However, this • The extent to which the published material distinguishes omission should not result in forum shopping on behalf of between suspicions, allegations and proven facts. deceased estates, since the court is required to apply the law which • Whether, in the circumstances, it was in the public interest for applies in the state in which the harm caused has its closest the material to be published expeditiously connection. • The nature of the “business environment” in which the publisher operates • The sources of the information in the published material and Defences the integrity of those sources The uniform legislation removes the requirement to establish • Whether the plaintiff’s side of the story has been included in the public benefit in order to establish a defence based on truth. This published material and whether a reasonable attempt was change extends to all jurisdictions the defence previously only made by the publisher to obtain the plaintiff’s response available in Victoria. • Whether the publisher has taken any other steps to verify the information published Where untrue imputations are published they may fall within the • Any circumstances which are considered relevant by the court defence of contextual truth if they are published together with • Any evidence of malice on the part of the publisher that will defeat the defence of qualified privilege. INSIDE THIS ISSUE At common law a defamation action can be defended as fair comment on the grounds that the published material was an • New defamation lasw: a guide 1 expression of opinion as distinct from a statement of fact. This Inez Ryan offers some guidance defence has been incorporated into the uniform defamation laws. To qualify for this defence the published material must satisfy • Press Council News 3 three criteria: News and information about the News by email; • the published material must have been an expression of the Prize; changes on the Council; changes to opinion; principles and procedures; defamation and a seminar; • the opinion must relate to a matter of public interest; and sources; suppression; FoI; evidence acts; terrorism • the opinion must be based on “proper material”. laws; ASIO Act; trauma; consultations; and “Proper material” is defined as material that is substantially true; conciliated complaints. material that was privileged; or material that is a “fair report of • Annual Address 2006 - Bill Keelty 7 proceedings of public concern” (i.e. a report of public proceedings of bodies such as courts and tribunals, parliaments, local • Reporting trauma 8 government or certain international conferences). Although the Dart Centre and its Hobart forum legislation does not specifically state it, case law that has considered the defence of fair comment emphasises the importance of clearly • Press Council Adjudications 10 distinguishing between fact and opinion. If an expression of Rulings from December 2005 and February 2006. opinion can be interpreted by the reader as being a statement of • About the Council 12 fact, the court may reject the fair comment defence. [continued on page 6] Australian Press Council News, February 2006 3 NEWS

News by email publishers of suburban newspapers in Sydney, as its representative for the next three years. Gene Swinstead, formerly manager of the Press Council publications are now sent by email to those who Leader Newspapers in Melbourne, who had represented the ask for delivery in that form. If you want the News sent direct to association for the past three years, will act as Bob’s alternate. you (in pdf format), please send an email to At the same meeting, the Council reappointed Gary Evans to a [email protected] with subject line News by email and further term as an editor member and Wendy Mead, a public you will be placed on the direct email list. member from Brisbane, to a third term on the panel of public members. Earlier, the Council accepted the resignation of another Press Council Prize public member, Leo White from Brisbane. The Council has not made an appointment to the panel of public members, which There will be no Essay Prize in 2006. As in 2005, the Council will remains at nine for the time being. It also noted that long-time be making a series of awards for outstanding scholarship through editor member John Morgan would retire in May 2006. Originally the various journalism departments and faculties at Australian an industry representative from 1980 to 1988, John Morgan was tertiary institutions. The Council will endow prizes for such appointed an editor member, on his retirement, in April 1988. An courses, particularly in the study of ethics. interview with John Morgan was published in the November 1998 APC News. Also in February, arising out of a Planning Day decision, the Annual address Council determined to change the way in which independent The Council’s 2006 Annual Address is to be held in Sydney on journalist members were treated in the Constitution. Instead of 23 March 2006. Australian Federal Police Commissioner Mick having two members, with two alternates, the Council has decided Keelty is to deliver the address at a lunch at the Swissotel, Market to have a panel of up to four journalist members, two of whom will Street, Sydney, from 12.30. Commissioner Keelty’s speech, attend each meeting, in rotation. This means that the independent Between the lines: New powers and accountability for police journalist members will be treated in the same way as editor and the media, will address some of the contemporary issues for members and public members. The Council also decided to the police and for the press arising from recent anti-terrorism appoint the current members and alternates, Bruce Baskett, Helen laws and other other recent developments. Elliott, Adrian McGregor and Sandy Symons, as the panel of journalist members. The lunch will cost $80/head, which includes a two-course luncheon and beer, wine or soft drinks, (or $600 for a table of 8). There will be time for questions and discussion. The public is welcome. Principles and procedures A full-page ad for the Address is on page 7 of this issue. Also arising from a Planning Day discussion, the Council has amended its Principle 5. The principle previously read: A publication is justified in strongly advocating its own views On the Council on controversial topics provided that it treats its readers fairly by In December, David Elias, who had represented The Age on the Council, agreed to accept a redundancy from the newspaper. As • making fact and opinion clearly distinguishable; a result he retired from the Council. Mark Baker, the Opinion • not misrepresenting or suppressing relevant facts; Editor of The Age, was appointed as his successor. Mark had • not distorting the facts in text, headlines, pictures, billboards previously represented The Age on the Council from March 2000 or posters; to February 2001. He left the Council to take up a position in an • disclosing any commercial or other interest which might be Asian bureau and has since returned to Melbourne to take up his construed influencing the publication’s presentation of current role. During a newspaper career spanning nearly three news or opinion. decades, Mark has spent more than 10 years as a foreign The amended version, now adopted by the Council, which will be correspondent with postings in , China, Hong the principle to be applied in the future, reads: Kong and Thailand. During the early 1980s, he also served as Beijing correspondent for The Financial Times, London and later Publications are free to advocate their own views and publish was Asia Correspondent for the News Limited group. His the views of others on controversial topics, as long as readers are readily able to recognise what is fact and what is opinion. appointments at The Age have included a stint as Deputy Editor. Relevant facts should not be misrepresented or suppressed, Russell Skelton will continue to serve as his alternate. headlines and captions should fairly reflect the tenor of an In February, Community Newspapers of Australia appointed article and readers should be advised of any manipulation of Bob Osburn, the editor in chief of Cumberland Newspapers, images and potential conflicts of interest. 4 Australian Press Council News, February 2006

The complete Statement of Principles can be found on the had reformed their laws on the basis of the model provisions and Council’s website (http://www.presscouncil.org.au/pcsite/ the two territories will complete passage of their bills shortly. The complaints/sop.html). reformed laws may not yet be perfect, even though they have been Among other decisions made by the Council on issues arising considerably improved in a number of areas: an emphasis on from Planning Day, it has agreed to alter the time limit on speedy resolution through offers of amends; reliance on a single complaints to 60 days from first publication and to amend its cause of action arising from the natural meaning of the material, complaints form. From its inception the Council has had a three- rather than on a series of imputations read into them; limits on the month limit (which it waives in exceptional cases) within which ability of corporations to sue; a defence of truth alone; some complaints need to be lodged with the Council. Given its greater clarification of the ‘reasonableness’ defence; and limits on emphasis on the settlement of complaints, and taking the view damages. that the sooner matters are amicably mediated, the better it is for The Council has prepared for editors an easy-to-read guide to the complainants, the Council is of the view that this limit can, in changes in the law to enable them to become familiar with the new normal circumstances, be reduced to 60 days. It will also press legal environment. This guide is published on page one of this publications for more timely responses to complaints, noting that issue of the News. its time limit on responses from either party is now two weeks, The Council is very pleased to have been able to see its initiative unless an extension is agreed to. through to such a successful conclusion. A couple of major changes have been made in the complaint form. First, the introductory paragraphs have been extended to clarify what complaints can be received and to note the existence of a Defamation seminar guide to completing the form. This guide will answer many frequently asked questions about how to lodge a complaint and The Press Council is a sponsor for the forthcoming LexisNexis what material to enclose with it. Secondly, the form has been re- Defamation Conference. The conference will discuss changes to ordered to put emphasis on the fact that the Council wants the defamation law resulting from the commencement of the new complainant to outline the main thrust of the complaint in 400 uniform legislation. Other issues to be discussed at the conference words or fewer. The form is a formality that enables the Council include recent cases, the relationship between defamation and the (and the publications cited) better to understand the complaint Internet, and the developing tort of privacy. The conference will and what redress the complainant is seeking. The Council’s be held on 5 April (in Sydney) and on 11 April (in Melbourne). A objective is to get the complainant to more concisely summarise flyer on the conference is enclosed with this issue of the News. what it is that has led to the complaint. With the changes made by Council to the Principles and procedures it will need to reprint its information booklet. The current edition Protection of sources (Booklet No. 8) will remain in use until that reprint, but the new In the November 2005 issue, there was a report on the possibility Principles and procedures (including the new time limit on that Melbourne journalists, Michael Harvey and Gerard McManus, complaints) will be posted to the Council’s website in early were to be cited for contempt for their refusal to reveal the March and take effect from that time. source/s for an article based on material leaked from the Department of Veterans Affairs for the unauthorised communication of a document. They had been called to testify at the preliminary stage Defamation of the trial of a public official. On 31 January the Victorian County In 2001 the Australian Press Council initiated action to reform Court convicted the public servant, Desmond Kelly. The allegation defamation law, particularly aimed at the development of a was that Kelly leaked to the media information, embarrassing to national uniform law. At the time that the Council took up the the then Veterans Affairs Minister, which detailed that a proposed matter, the issue had been removed from the agenda of the benefit was less than had been promised, or had been recommended Standing Committee of Attorneys-General. This initiative first by a review. In spite of the fact that they were not ultimately called led to the changes to NSW defamation law and, with the assistance to give evidence at Kelly’s trial, the two journalists are still of the then federal AG, Daryl Williams, the issue was put back on subject to a contempt charge for refusing to disclose the identity the SCAG agenda. of their source. The decision to charge McManus and Harvey is being appealed. The NSW Attorney-General persuaded his fellow AGs to develop a draft uniform act. This was helped along by the actions of Daryl Williams’ successor, Phillip Ruddock, who drafted a putative national law, which would replace the state laws if they could not Suppression reach agreement on uniformity. With input from interested parties, As noted in the August 2005 News, the Press Council is pressing including the Press Council and representatives of the major the federal, state and territory courts to develop a uniform system publishers and broadcasters, both the state and federal proposals for recording active suppression orders and for making them were developed further. There was general agreement that the available to the media. The current ad hoc system, which differs SCAG draft was preferable, and the final draft was sent to the from jurisdiction to jurisdiction, means that the press occasionally, states and territories to be passed into legislation. usually inadvertently, breaches such an order because of ignorance By December 2005 the task was virtually complete. All six states of its existence. This problem is exacerbated by the fact that most Australian Press Council News, February 2006 5 publications and broadcasters cross state boundaries in their Uniform Evidence Acts publication, and are unaware that an order has been issued in another state. The Council notes that some good systems exist, In the August 2005 News, there was a report on a submission made particularly in Victoria, where advice on extant suppression to the Australian Law Reform Commission (ALRC) on proposals orders are sent regularly to subscribing media. In the interests of for national uniform Evidence Acts. The Council’s submission reducing the risk of interference in the administration of justice, concentrated on the question of professional privilege for it has proposed a model based in part on the Victorian system, but journalists, arguing for a default situation that recognised a with greater use of secure sections of courts’ websites. This has presumption in favour of granting a privilege to protect confidential merit, particularly if it offers out-of-hours access for any media sources. It cited a clause in a proposed New Zealand Evidence Bill as a model for Australian legislation. The ALRC has now released person wanting to check a database of orders. its report, and recommendations, for uniform Acts. On the question The Press Council’s recommendations for all courts in all of professional privilege, it has recommended the adoption of the jurisdictions include: NSW model for assessing whether journalists’ sources should be • establishing a Courts-Media liaison committee that can protected. This section offers more protection for journalists than discuss issues arising for the media and the judiciary in its Victorian equivalent (under which journalists McManus and relation to media coverage. Harvey may be liable to prosecution if their appeal fails, see • appoint a courts-media liaison officer. Protection of Sources above) but not as much as the New Zealand model would offer. The Victorian Attorney-General has • establishing a uniform method of reporting court orders. undertaken to enact the commission’s recommendations in this • establishing uniform methods of reporting court judgments. area. The Council’s view remains that the more robust New In response to the Council’s proposals, Justice Murray Gleeson Zealand proposals would be preferable. It has decided to develop has indicated that the Council’s proposal on a uniform reporting further submissions on the need for legislation that had a more system will be discussed at the next meeting of federal, state and definitive privilege as its default position and send them to the territory Chief Justices. state Attorneys-General. The Council has also discussed the proposal with representatives of the print and electronic media and they have indicated that they are prepared to discuss with the courts ways of defraying any costs Anti-terrorism legislation through the sharing of expenses in the establishment of a uniform In November the News reported on the Council’s submission to and comprehensive reporting system. For example, in Victoria, the Senate Committee looking at the Anti-Terrorism Bill (No. 2) the media funded the provision of a fax machine for the Courts 2005. The Council has noted the changes made to the legislation Media Liaison Officer’s use in notifying them of suppression following the Senate Committee’s report. In particular it noted orders. It is likely that the media would be willing to contribute to that the impact on the press would be lessened by the necessity to facilities that help reduce the risk of infringing upon court orders. demonstrate that force or violence was an element in any ‘unlawful association for seditious intention’ and by the introduction of a public interest element in the defence on sedition. However, it Freedom of Information was also noted that the provisions restricting publication of material related to detentions remained. In earlier issues of the News, there have been reports on the attempts by The Australian’s FoI editor Michael McKinnon to obtain under Freedom of Information laws (FoI) Treasury ASIO Act documents related to the impact of bracket creep on income tax and on possible rorting of the first home-owners scheme. After The Council, in 2005, made a submission to the Joint Committee Treasurer Costello issued conclusive certificates barring access reviewing the Australian Security and Intelligence Organisation for McKinnon, he appealed to the AAT and thence to the Federal Act. The Act had been legislated with a three-year sunset clause Court, which found, by majority, for the Treasurer. In February, due to expire in 2006. In the May 2005 News, the Council’s News Limited won leave to appeal the Federal Court’s decision in submission was detailed. The Council noted in February that, as the High Court. The matter is likely to be heard in August and the a result of the Joint Committee’s report, the relevant section of the Act was to be extended for a further five years and only minimal Press Council has decided to seek leave to lodge an amicus curiae changes had been made to the provisions covering the reporting brief in support of McKinnon. The Council has only once previously of matters. lodged such a brief, in the Levy and Lange cases in 1995, but regards the McKinnon case as so important to the viability of FoI in Australia that it will seek to intervene. The Council’s Vice Chairman, Professor HP Lee, will convene a committee of experts Port Arthur anniversary in FoI and constitutional law to develop the brief. The Council is sponsoring some of the activities organised by the DART Centre for Journalism and Trauma this year in anticipation of the tenth anniversary of the Port Arthur massacre. The Council sponsorship will enable the visit to Australia of Joe Hight, the managing editor of The Oklahoman, who was closely involved in the initial award-winning coverage of the Oklahoma bombing as well as its recent tenth anniversary. He is president of the US 6 Australian Press Council News, February 2006

chapter of DART. The activities will include a public forum in • met with eighteen students from Pacific Lutheran University Hobart on 17 March, as well as meetings with Joe Hight at various of Tacoma, Washington, who visited the Council on 19 newspaper offices and with the Press Council. There will also be January. The students were in Australia as a part of the public meetings in Sydney and Brisbane organised by local international component of their tertiary journalism studies. university journalism departments. More details on the visit and on DART’s objectives can be found in an article on page 8. Conciliated complaints The Council office tries to solve matters by direct contact with the publication concerned. This often leads to a settlement of the Council consultations matter satisfactory to both parties. On occasion, a Public Member of the Council (or a member of the secretariat) will convene a The Journalism Education Association invited the Council’s face-to-face conciliation, by agreement with the parties. Below Executive Secretary to participate in two ‘industry forums’ on the are some examples of the matters recently settled in these ways. last day of its 2005 conference on the Gold Coast. The forums •A metropolitan newspaper failed to verify an entry in a dealt with, respectively, reporting difficult issues and industry complainant’s name that had been placed on its online futures. On the former Jack Herman referred to the Council’s forum. The publisher removed the relevant material from concerns with both freedom and responsibility and to the guideline the site immediately upon receipt of the complaint. statements; in the case of the latter, he spoke about how journalism • An article about the complainant’s search for her lost dog would need to remain an ethics-based profession, and against any was published by a women’s magazine. The article was kind of licensing or accreditation scheme. inaccurate in part. The parties negotiated a letter to the In other recent activities, Mr Herman also editor, which was duly published. The complainant accepted this as a resolution of her complaint. • participated in a public meeting on the anti-terrorism legislation organised by the NSW Writers’ Centre, as well • An metropolitan newspaper characterised the stance of an as conducting interviews with the Glebe and Inner Western MP on the release of life-sentence prisoners in a way that the MP thought misrepresented him. The Council’s office Weekly and 2SER on the issues arising from the meeting; was able to organise a face-to-face conciliation between • spoke at a forum between medicos and the press on the MP and the newspaper, the result of which was a further reporting of medical breakthroughs at Newcastle Uni on 28 article, some months later, in which the MP was able to October, organised largely by staff at the website, clarify his stance. The complainant regarded this as an mediadoctor.org.au, where discussion centred on the issuing excellent settlement of his concerns. of prescriptive guidelines on reporting such matters, and a •A candidate for local government complained that a regional decision was made that such guidelines were not required daily newspaper had misrepresented him in the lead-up to at this time; an election. In a face-to-face conciliation, overseen by a • attended the launch of the NSW Law Journal forum edition Public Member of the Council, the newspaper offered to on freedom of speech, in which he has written an article on interview the complainant for a prfile to be published in the the main impediments to freedom of the press in Australia; paper. This offier appears to have satisfied the complainant.

[continued from page 2]

Damages & Costs Variations between jurisdictions Damages under the uniform legislation are limited to $250,000 In spite of the primary aim of the legislation being to bring for non-economic loss unless the court is satisfied that an award uniformity to defamation law across Australia, there remain some for aggravated damages is justified. Exemplary and punitive differences between jurisdictions. As noted above, Tasmania has damages are excluded entirely. Damages for economic loss may elected not to adopt the clause that precludes actions on behalf of also be awarded, but must be proportional to losses actually deceased persons in other states. The publication in Tasmania of suffered by the plaintiff. The court may reduce the damages material that results in injury to the reputation of a deceased award if the defendant can provide evidence that they made person may result in litigation. attempts at mitigation. Publication of corrections, apologies or There are also variations in the way a defamation action is tried compensation settled between the parties at an early stage in the by the courts in different states. The uniform legislation includes dispute would thus have the effect of reducing damages. two sections that deal with juries. Section 21 allows the parties to In order to encourage both plaintiffs and defendants to settle the request trial by jury (although the court may refuse), while section proceedings at an early stage in the dispute, the uniform legislation 22 specifies that the amount of damages is to be determined by the requires the court to take into account the parties’ conduct when judge. Both of these sections have been omitted from the South awarding costs. A publisher who unreasonably fails to make or Australian legislation. accept a settlement offer will be liable to pay indemnity costs. The Publishers should also note that, at the time of publication, the amount that must be paid for indemnity costs will be significantly ACT and the NT have not yet passed the uniform legislation. higher than a normal costs order. Similarly, a plaintiff who unreasonably fails to accept a settlement offer will be liable to Inez Ryan indemnity costs. Australian Press Council News, February 2006 7

2006 Annual Address

Michael (Mick) Keelty APM, Commissioner, Australian Federal Police

Mick Keelty is a career police officer with more than thirty years experience at local, national and international levels. He is the first Commissioner appointed from within the ranks of the Australian Federal Police (AFP). The AFP is Australia’s national policing agency, enforcing Commonwealth criminal law and protecting Commonwealth interests from crime, both within Australia and abroad. The AFP is also Australia’s international law enforcement and policing representative - with 62 officers, based at 30 posts in 25 countries - and it is the chief source of advice to the Australian Government on policing issues. Since his appointment as AFP Commissioner in April 2001, Commissioner Keelty has led the expansion and transformation of the organisation, with major new responsibilities for counter-terrorism, aviation security and transnational crime. He has also overseen the creation of the International Deployment Group - a regional assistance and capacity-building initiative - which has already undertaken missions in the Solomon Islands, , Papua New Guinea and the Middle East. Commissioner Keelty’s speech, Between the lines: New powers and accountability for police and the media, will address some of the contemporary issues for the police and for the press. There will be time for questions and discussion. The public is welcome.

Thursday 23 March 2006 The Swissotel, Level 8, 68 Market Street, Sydney 12.30pm – 2.30pm

Cost: $80 or $600 for a table of 8 [includes 2 course luncheon and beer, wine and soft drinks]

Inquiries and bookings: (02) 9261 1930 or [email protected] 8 Australian Press Council News, February 2006

Reporting trauma It’s decade since the tragic events at Port Arthur and, with the tenth anniversary approaching, TRINA McLELLAN of the Dart centre for Journalism and Trauma asks “What have we learned?”

n 28 April 2006, Australia will mark a decade since the After the Hobart event, Joe Hight will travel to Brisbane, where historic massacre that erupted on an otherwise quiet, he will meet with senior staff at Queensland Newspapers and O sunny Sunday afternoon in one of the country’s most address a public meeting organized by QUT. In Sydney, in tranquil locations. addition to meeting with the Press Council, he will discuss his Tasmanians – and hundreds of others who were visitors on the day experiences with senior staff at News Limited and address a – will pay their respects in a variety of ways, including two formal public meeting organised by the University of Technology, events being held at Port Arthur itself around the time of the Sydney. anniversary. For Australia’s news media, though, the anniversary period may Dart Centre visits also be an important watershed in terms of approaching the Potential winners from more sensitive coverage in the media of coverage of such a significant traumatic incident. the Port Arthur anniversary will not only be those in the community The Australian Press Council, in conjunction with the Dart Centre who may still be affected by what transpired but also those in for Journalism and Trauma and the University of Tasmania, is newsrooms who have battled to cover this or other tragedies. involved in a number of industry, academic and public events There are ways, say those who have been touched by the tragedy, over the coming weeks that will address the challenges of covering that the media can do their job well while minimising further traumatic incidents and their anniversaries for news personnel harm. and the wider community. Journalist Judy Tierney, who covered the massacre and its fallout Many of those events will involve Joe Hight, the managing editor extensively for the ABC, reports being told by members of the of The Oklahoman, who was closely involved in the initial award- Tasmanian community that there have been at least five suicides winning coverage of the Oklahoma bombing as well as its recent in the past 10 years that can be directly linked to the fallout from tenth anniversary. The Press Council is helping to sponsor his the massacre. visit and to organise meetings with the public and the press in On two recent visits to Tasmania, board members of the Dart Sydney and Brisbane. Centre for Journalism and Trauma found that all media, community During his visits in Hobart, Melbourne, Sydney and Brisbane, and experts interviewed confirmed there were individuals Hight (who is also president of the US chapter of the Dart Center including journalists and former journalists who: for Journalism and Trauma) will share some experiences and • are deeply traumatised by what happened, some of whom invite Australian journalists to be part of a growing international are still receiving treatment (most people knew at least half conversation about ways field and newsroom staff can look after a dozen individuals in this situation); themselves and others while continuing to deliver the news of • still grieve the loss of loved ones and struggle to maintain a traumatic incidents. sense of control over what happens in their lives, with some The major event will be a public forum in Hobart on Friday 17 having been unable to return to work or who have changed careers; March from 7pm-9.30pm in the Dechaineaux Theatre, University of Tasmania Centre for the Arts, Hunter Street. The objectives of • experience vivid, unwanted flashbacks and periodic the forum include discovering what has been learned elsewhere unanticipated emotional reactions to known and unanticipated triggers and who are likely to be particularly by communities and media experiencing significant anniversaries susceptible to realistic depictions and recollections of what of traumatic events, and allowing the community, news media happened that are likely to be presented again during and journalism/media students to raise and discuss issues media coverage of the anniversary; surrounding the tenth anniversary of the Port Arthur massacre • would rather not discuss the events or the perpetrator at all and its coverage. (even down to not using Martin Bryant’s name and avoiding Joe Hight is the main speaker. Other speakers will include Nicola terms like ‘massacre’ altogether); Goc, Department of Journalism and Media Studies, University of • remain distressed or highly uncomfortable when asked or Tasmania, Judy Tierney, former ABC TV and radio broadcaster pressed to discuss their experiences, reactions and/or and a freelance journalist, Peter Roche, captain, MV Marana, Port recovery; Arthur Cruises, and Leigh Winburn, pictorial editor, The Mercury. Equally, there are others who are reasonably comfortable talking The Press Council’s Vice Chairman, Professor HP Lee, will to media, provided they are approached with respect and given speak at the end of the seminar, drawing together what has been control over the territory covered (i.e., they can decline to discuss said and what implications it has for the media coverage of aspects they find difficult or that they feel might hurt others or traumatic events. themselves). Australian Press Council News, February 2006 9

What this group of people is experiencing is not atypical of a There were over 300 journalists covering the massacre in 1996, traumatised community, even after a decade has elapsed from the so the number of media approaches over the coming weeks are time of the events themselves. likely to be significant, particularly around the time of the Their spectrum of experiences and their emotional, psychological anniversary. With that in mind, newsrooms should, where possible: and physiological responses to those events are rich and diverse, • consider pooling resources to limit the number of journalists something not broadly appreciated in the wider community. at anniversary events; Far from being “weak”, as Tierney and other journalists will • work through any appointed media liaison personnel to attest, a review of their experiences and the consequences they’ve access willing participants while avoiding unnecessary had to deal with demonstrates a high level of bravery, strength, agitation of reluctant individuals; courage and determination not to see what they have endured • be respectful of individual’s grief, privacy, recovery and imposed on others. recollections; Media interest is likely to escalate as the anniversary nears and • be sensitive to the feelings of Port Arthur Historic Site staff news media outlets can take steps to minimise the load on victims, and Tasman Peninsula people who have to live and work in and near the site of the world’s largest peacetime massacre witnesses, survivors and their families and friends. of a lone gunman; While some in affected communities do not have a strong working • remember that those journalists who fly in/fly out need to be knowledge of news media procedures and expectations, others particularly aware of potential sensitivities and respect the are well-versed in the ways of newsrooms and individual news needs of those people and their peers in the Tasmanian personnel. media; and Nearly everyone who talked about the upcoming anniversary to • be aware that current and/or former journalists may Dart Centre personnel made constructive suggestions that would themselves find this period difficult and potentially be worth newsrooms around the country considering, including: distressing, bringing back unwanted memories or emotions, • resist putting the perpetrator Martin Bryant’s image on the perhaps by encouraging staff to support one another or front page of publications or high up in TV programs/ seek counselling and to acquaint themselves with learning bulletins or internet sites (and don’t dwell on him or his well- materials like those provided online by the Dart Centre for being); Journalism and Trauma (www.dartcentre.org/training/ selfstudy) that explain the impact of trauma on individuals • don’t bring helicopters to the Tasman Peninsula, especially and communities for journalists in order for them to better around the time of the anniversary; protect themselves and deal with others. • avoid dwelling on conspiracy theories or theorists as they have virtually zero credibility in the community; and Trina McLellan Dart Centre for Journalism and Trauma - Australasia • focus more on what good has come out of all this and where individuals and the community are going.

Public Forum in Hobart Journalism, Trauma and the tenth anniversary of Port Arthur Hosts: Dart Centre for Journalism and Trauma – Australasia Sponsors: University of Tasmania and the Australian Press Council

Date: Friday, March 17

Time: 7pm - 9.30pm

Venue: Dechaineaux Theatre, University of Tasmania Centre for the Arts, Hunter Street Objectives • Discover what has been learned elsewhere by communities and media experiencing significant anniversaries of traumatic events • Allow the community, news media and journalism/media students to raise and discuss issues surrounding the tenth anniversary of the Port Arthur massacre and its coverage

Proposed key participants Joe Hight, editor, The Oklahoman, president, Dart Center for Journalism and Trauma Nicola Goc, Department of Journalism and Media Studies, University of Tasmania Judy Tierney, Walkley award-winning journalist, former ABC TV and radio broadcaster, freelance journalist Peter Roche, captain, MV Marana, Port Arthur Cruises Leigh Winburn, pictorial editor, The Mercury Professor HP Lee, Vice Chairman, Australian Press Council 10 Australian Press Council News, February 2006

PRESS COUNCIL ADJUDICATIONS

village of Silwan in East Jerusalem, to clear believes the journalist concerned was Adjudication No. 1303 the way for an “archaeological park.” The reporting matters occurring in Israeli- article said this highlighted the fundamental Palestinian territories at that time and that The Press Council has dismissed a conflict between resident and the the articles did not consist of comment. complaint brought by Dr James Saleam Jews who claimed an older and superior right The articles need to be considered in the against The Australian for its description to the ground on which the Palestinians lived. context of all material published on the of the complainant as a ‘prominent neo- The third article reported activities by a Middle East conflict by the newspaper. The Nazi’ in two articles published by the volunteer Israeli women’s organisation who Council does not believe there has been any paper. The complainant felt he had been monitored checkpoint operations to ensure breach of its principles and accordingly the unfairly labelled by the newspaper. Palestinians were not abused. complaint is dismissed. The two articles, Top Academic Accused of The final article reported that the family of a Neo-Nazi Links and Racist Professor British peace activist shot by an Israeli soldier Cautioned But Launches New Attack, and believed the soldier, who has been convicted, Adjudication No. 1305 published respectively in the 20 July and 21 could be used as a scapegoat by Israeli military July editions of the paper, dealt mainly with officers. The Australian Press Council has a Macquarie University law professor and The complainants said that all four articles dismissed a complaint from Mark K. his views on the IQ and crime rate of black breached a number of Press Council principles Tomkinson against the Donnybrook- Africans. The complainant was mentioned including errors of fact, omission, a failure to Bridgetown Mail over the editor’s refusal to publish a second letter on a local issue. in the context of an association with ‘the distinguish between fact and opinion, a lack of extremist Patriotic Youth League’. balance and that each of the articles presented On 5 July 2005 the editor published a letter The complainant wrote a letter to the editor the conflict in the Middle East from the from Mr Tomkinson critical of the in response to each of the articles but neither Palestinian position alone. Bridgetown Shire Council. Mr Tomkinson claimed the local council had been incapable letter was published. The paper said that They said that the inclusion of relevant this was because the letters were of anticipating the problems arising from background material such as the continuing increased population. “unnecessarily abusive”. The Council incitement and terrorism against Israelis was On the 12 July an A Scobie responded to Mr believes that if the letters had been couched required for balance. in more moderate terms, one may well have Tomkinson through the letters column been published and the matter resolved. The complainants claimed that there was a saying it was a “bit rich” for him to claim serious lack of objectivity and balance in the that all crime, traffic, safety, parking, and In the context of the circumstances of the articles, which contributed to public hostility water shortage problems were “courtesy of case and the background information to Israel and to anti-Semitism. metropolitan interlopers”. furnished by the paper in response to the allegations, the Press Council finds the paper In response the newspaper said the articles Mr Tomkinson wrote again to the editor on did not act unreasonably. complained of contained no errors of fact, 21 July saying that, while Mr Scobie was were balanced, and focussed on specific aspects entitled to his views, he should have of the Israeli- Palestinian conflict. disclosed that he was a professional journalist Adjudication No. 1304 who proofread the local council’s newsletter. The newspaper said it was not possible to When this letter was not published, Mr canvass the entire sweep of the conflict’s Tomkinson complained the newspaper failed The Australian Press Council has history in any single newspaper article. to ensure fairness and balance when it did dismissed a complaint by Pam Hopf and The articles sought to place the incidents and not publish his countering letter or check on Dina Burgess against The Age concerning statements described within the context of a Mr Scobie’s background. four articles by the newspaper’s violent struggle in which “grave human rights Newspapers do need to ensure the Jerusalem correspondent. abuses are committed by actors on both sides”. authenticity of letters to the editor. It is The articles were published on 4 June, 6 The newspaper said that over 160 reports in unreasonable, however, to expect June, 11 June and 29 June 2005 and carried 2005 had been published from their Jerusalem newspapers to undertake detailed the correspondent’s byline and photograph. correspondent plus additional material from background checks on its letter writers or wire services and other newspapers. It had give infinite opportunities to correspondents The first article carried reports of “stunned” to reply to comments on their letters. reaction by Israelis to a documentary made given a fair and a comprehensive coverage on by a prominent television presenter. The the conflict in the Middle East over many article said the documentary dwelt on the years. machinery of occupation, the roadblocks, The reporting of any conflict will inevitably the fences, walls, settler roads and curfews evoke contending points of view in which the set up to defend and support West Bank and facts are strongly disputed. Gaza settlements. However reviewing the articles complained The second article reported plans by Israel of, and hearing the supporting argument of the to evict 1000 Arabs from their homes in the complainants and the newspaper, the Council Australian Press Council News, February 2006 11

Adjudication No. 1306 Adjudication No. 1307 The complainant argued that the newspaper did not approach motorcycle associations for comment; did not discuss other methods The Press Council has upheld a complaint The Press Council has upheld in part a of catching speeding motorcyclists; and did brought by Faten El-Dana, on behalf of complaint against The Canberra Times over not mention the cost to riders of the Muslim Women’s Welfare of a report on an incident on the Israeli-Gaza implementing front numberplates. Australia, against the Egypt News, a border. Three Palestinians were shot and Dr Whittington wrote to The Sunday Times Coptic community newspaper, published killed by Israeli troops in the incident. in Arabic. outlining his objections and received a reply The report quoted the Israeli military as saying Ms El-Dana complained about an article from the editor rejecting the complaint. The published in the newspaper on 18 January that the Palestinians were spotted crawling editor said in his letter that the newspaper 2005 under the heading Slaughtering of a towards the border fence with a bag, would return to the issue in the future. Coptic family the Islamic way in New Jersey “apparently planning to plant a bomb”. In The Sunday Times report the RAC’s in the United States. Ali Kazak, head of the General Palestinian support for front numberplates was The article claimed that a Coptic family had Delegation to Australia and New Zealand, countered only by a brief quote from the been murdered by Muslims and added “it is complained that the report was “false” and WA Office of Road Safety questioning the believed that there are dormant Islamic gangs “suppressed relevant facts”. He submitted for safety of such metal numberplates. in this city which is highly populated by publication a letter that quoted the Palestinian Muslims”. The central thrust of the article was the Centre for Human Rights as saying that the dangerous behaviour of speeding Ms El-Dana complained the article was three Palestinians, including two teenagers, motorcyclists, as illustrated by the published unsourced and that its intention was to were seeking to cross the border to find “slander the Muslims”. table of the five most dangerous speeding employment. They were, it said, left for two incidents recorded by police. On 6 March, Ms El-Dana forwarded to hours bleeding to death while Israeli troops Egypt News a copy of an article from the prevented an ambulance from reaching them. The Council is of the view that the lack of Egyptian newspaper Al-Ahram which stated The letter was not published. further exploration of the subject, as that there was no Muslim connection in the criticised by Dr Whittington, does not in murders, and that the New Jersey police had The Press Council cannot determine which itself constitute a suppression of other views. arrested two American men Edward version is correct; nor can it say whether the McDonald and Hamilton Sanshez for the Palestinian version was available in any way crime. Ms El-Dana supplied the Council at the time of the publication. The absence of Adjudication No. 1309 with a further two reports from American a response from The Canberra Times to the news sources supporting the Al-Ahram story. Council leaves this question open. In these The Press Council has upheld in part a Ms El-Dana asked the newspaper to correct circumstances, the “false” and “suppression” complaint brought by Dr Colin Long its 18 January article but it did not comply aspects of the complaint fail. and wrote her a response which she found against the Chelsea Independent, a The short letter from Mr Kazak, dated the day deeply offensive. Melbourne suburban newspaper, over after the report, could well have been published. its reporting of a controversial The newspaper’s editor Samir Habashi In fairness, the Palestinian position should development called ‘Chicquita Park’ on informally advised the Council that he was have been put. awaiting finalisation of the investigation a site that the complainant and others before publishing any clarification, but made would prefer to be preserved as public no other response. Adjudication No. 1308 parkland. The Council finds that the newspaper erred The complainant initially complained in not sourcing its original article and in not against an article, Bill tops 1/4 m, published moving quickly to correct the original The Australian Press Council has dismissed in the 26 July 2005 edition of the newspaper. material when the new facts emerged. a complaint from Dr Barry Whittington The article contained statements relating to Accordingly Ms El-Dana’s complaint is that a Sunday Times article about the legal and consultancy costs borne, and upheld. motorcyclists who dangerously exceed speed likely to be borne, by the ratepayers arising Australia is a multicultural society with a limits in Western Australia with impunity. from the controversy over the development. thriving ethnic community language press. The complaint was that the report treated It also mentioned a forthcoming special Debate in those newspapers is often robust readers unfairly by suppressing and meeting of the local council to hear and controversial. misrepresenting relevant facts. submissions from the Friends of Chicquita The Council encourages that debate but The newspaper exposed how speeding Park and the developer, Omni would remind publications that they should motorcyclists escaped fines in Western Developments. The article added that ‘[m]ore than 50 submissions’ had been be guided by the principles of the Council Australia because motorcycles there are received by the local council. It also concerning the separation of fact from required to carry only rear numberplates comment. It is the responsibility of mentioned that the developer’s proposal whereas police speed cameras photograph newspapers properly to source news stories involved ‘giving just over 50 per cent of the and to take every effort to ensure that what offenders from the front. site over to open space’. This was followed they publish is accurate. In addition, it is The article included comment from the RAC by the sentence, ‘Eleven per cent of this incumbent on newspapers quickly to correct that the State Government was dragging its amount is taken up with roads and footpaths any errors that have occurred as soon as they heels in introducing legislation requiring which leaves just over 40 per cent as public become aware of the problem. motorcycles to carry front numberplates. parkland’. 12 Australian Press Council News, February 2006

ABOUT THE PRESS COUNCIL

The Australian Press Council was Complaints Procedure established in 1976 with the If you have a complaint against a responsibility of preserving the freedom newspaper or periodical (not about of the press within Australia and advertising), you should first take it up ensuring the maintenance of the highest with the editor or other representative of journalistic standards, while at the same the publication concerned. time serving as a forum to which anyone may take a complaint concerning the If the complaint is not resolved to your press. satisfaction, you may refer it to the Australian Press Council. A complaint The complainant said that the reference to It is funded by the newspaper industry, must be specific, in writing, and 50/40 per cent was an “attempt to obfuscate”; and its authority rests on the willingness accompanied by a cutting, clear photostat that the newspaper was biased; that it failed of publishers and editors to respect the or hardcopy print of the matter to distinguish fact from opinion; and that his Council’s views, to adhere voluntarily complained of, with supporting letter to the editor was not published. to ethical standards and to admit documents or evidence, if any. mistakes publicly. Complaints must be lodged within 60 The Press Council notes that the Chicquita From 1 July, the Council consists of 22 days of publication. Park saga had gone on for more than four members. Apart from the chairman (who The Council will not hear a complaint years, with the newspaper publishing a must have no association with the press), subject to legal action, or possible legal number of articles on the subject and many there are 10 publishers’ nominees, ten action, unless the complainant signs a letters arguing all sides of the issue. The public members (7 attend each meeting), waiver of the right to such action. two independent journalists, a nominee newspaper pointed out that it had published Address complaints or inquiries to: ‘in full’ several letters written by the of the MEAA and a retired editor. The newspapers’ representatives are drawn Executive Secretary complainant, and that ‘none of his letters from the ranks of metropolitan, The Australian Press Council have gone unpublished’. suburban, regional and country Suite 10.02, 117 York Street Although the newspaper had refused to publishers as well as from AAP. The Sydney NSW 2000 publish the complainant’s letter of 8 August public is represented by people with no Phone: (02) 9261 1930 or (1800) 02 5712 previous connection with the press. on the basis that it was ‘inflammatory and Fax: (02) 9267 6826 defamatory’, it was prepared to consider The Press Council is able to amend its Email: [email protected] publication if the letter was resubmitted in a Constitution with the approval of its A booklet setting out the aims, practices Constituent Bodies. Significantly, great revised form. and procedures of the Council is available importance is placed on members acting free from the above address. The Council’s Statement of Principles as individuals rather than as the It, together with other relevant material, recognises the right of a newspaper strongly representatives of their appointing organisations. is available from the Council website: to advocate its own views on controversial http://www.presscouncil.org.au/ topics, but news reports should not present opinion as news. Because it combines commentary as an integral part of a news report, this article does not meet this test. MAILING LIST AND MAILING LABEL If you change address and would like to continue to receive the Press Council’s publications, or if there is an inaccuracy on the label, please advise the office of any such change.

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Managing Editor: Ken McKinnon; Editor: Jack R Herman; Associate Editor: Deborah Kirkman Lay-out by Jack R Herman; Printing: Print Mail © Australian Press Council, 2006