Mental illness, journalism investigation and the law in Australia and NZ

By MARK PEARSON

Here is the abstract of my article just published in Pacific Journalism Review (17) 1, pp. 88-99

Mental illness, journalism investigation and the law in Australia and New Zealand

Mental illness, its terminologies, definitions, voluntary and compulsory treatment regimes, and its interface with the criminal justice system are defined and regulated remarkably differently across the 10 Australian and New Zealand jurisdictions. This presents a legislative and policy nightmare for the investigative journalist attempting to explain the workings of the mental health system or follow a case, particularly if the individual’s life has taken them across state or national borders. This article considers the extent to which legal restrictions on identification and reportage of mental health cases in Australia and New Zealand inhibit the pursuit of ‘bloodhound journalism’the persistent pursuit of a societal problem and those responsible for it. It recommends the development of resources assisting journalists to navigate the various mental health regulatory regimes. It also calls for the opening of courts and tribunals to greater scrutiny so that the public can be better educated about the people affected by mental illness and the processes involved in dealing with them, and better informed about the decisions that deprive their fellow citizens of their liberty.

Keywords: investigative journalism, health, justice system, media law, mental illness, public policy

For the full article, see: http://www.pmc.aut.ac.nz/publications/pacific-journalism-review-171

 

* Mark Pearson is professor of journalism at Bond University and Australian correspondent for Reporters Without Borders. He tweets from @journlaw and blogs from journlaw.com

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Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer! My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2011

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Four views on #Amnesty from Aus MPs – bipartisan support?

By MARK PEARSON

Last night I addressed the Gold Coast celebration dinner for the 50th anniversary of Amnesty International, as detailed in my last blog.

An executive member kindly directed me to this fascinating debate on the floor of Australia’s House of Representatives on May 23, where four politicians spoke to congratulate the organisation on its birthday.

It is interesting to note the different perspectives on Amnesty, given the current context of the organisation’s active representations on the issue of Australia’s potential deal with Malaysia on asylum seekers.

The first speaker, independent Rob Oakeshott, points this out in his congratulatory remarks. The second, Liberal Judi Moylan, ignores it. The third, Labor’s Laurie Ferguson, regrets “too pronounced an emphasis on the asylum refugee issue” which he claims has eroded its bipartisanship among politicians. The fourth, fellow Liberal and former immigration minister Philip Ruddock, has an unusual moment of agreement with his Labor adversary and reinforces his call for a return to core Amnesty causes. (When immigration minister, Ruddock was asked by Amnesty to remove his lapel badge while advocating policies the organisation opposed.)

It is a relatively short but instructive parliamentary excerpt for those interested in the politics of language in a human rights context:

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Australian House of Representatives Hansard, May 23, 2011: (http://www.aph.gov.au/hansard/reps/dailys/dr230511.pdf)

PRIVATE MEMBERS’ BUSINESS 50th Anniversary of Amnesty International

Debate resumed on the motion by Mr Oakeshott:

That this House:

(1) notes that 28 May 2011 marks the fiftieth anniversary of Amnesty International, a global movement of over three million supporters dedicated to defending and protecting human rights;

(2) recognises the important role Amnesty International continues to play in promoting and protecting human rights and shining a light on human rights abuses around the world;

(3) acknowledges the many achievements of Amnesty International, including its:

(a) integral role in the development, promotion and ultimate adoption of the United Nations Convention Against Torture in 1975, it being awarded the Nobel Peace Prize in 1977 and the Sydney Peace Prize in 2006; and

(b) successful campaigning for the release of thousands of political prisoners around the world; and (4) notes that from 1961 till the end of 2010 the organisation:

(a) conducted at least 3,341 missions to research human rights abuses around the world; and

(b) produced and published an estimated 17,093 reports and public documents including the annual human rights report which is now produced in 25 languages; and

(c) issued over 31,000 urgent actions for individuals at risk.

Mr OAKESHOTT (Lyne) (11:01): I note, as a co-chair of the reformed parliamentary Amnesty group, that there is some very good work of a bipartisan nature done amongst my colleagues, work that is targeted towards the too many parliamentarians or election candidates around the world who have found themselves being persecuted, for a number of reasons. I hope that work continues and I hope the parliamentary group continues to be active.

Happy birthday, Amnesty International, and thank you for the good work that you continue to do. In my view, the organisation is at the front end of protecting, defending and advocating for the individual, despite collective will being quite often against the individual. It is, I think, a flaw in mankind that we tend towards inhumanity and unkindness towards each other. Organisations such as Amnesty International remind us of the higher values rather than the lower ones and focus us on humanity and kindness rather than on the inhumane and unkind.

These principles behind Amnesty International—I might put alongside that human rights and the United Nations generally—too often in Australian political culture get an unfair serve and are seen as the soft or weak options. These unfair serves only strengthen the resolve of many. The courage of those who support and advocate for higher values and higher principles is highlighted by the fact that they do so when many are accusing them of being weak or soft. So this is an important organisation, not only domestically but internationally. May their work continue.

Only last night I was watching Dateline covering an issue of the moment—Australia’s potential agreement with Malaysia about asylum seekers. It was a very good program and it is Amnesty Australasia that is leading the charge for public policy in this country to deeply consider the realities of detention in Malaysia. I would hope that a good government, regardless of political persuasion, would consider those facts and take the views of Amnesty International on board.

Likewise, an issue of the moment is the call for action on war crimes within Sri Lanka over the past decade. This is an uncomfortable issue for governments to deal with but one that is important, again, if we are pursuing higher ideals. In an ideal world, organisations like Amnesty International would be unnecessary. In practice, their work is critical to making sure governments of all persuasions in all countries work in the best interests of their communities rather than their own best interests and chase those higher ideals rather than the low ones. Happy birthday and thank you to Amnesty International. (Time expired)

Mrs MOYLAN (Pearce) (11:06): It is a great honour to second the member for Lyne’s motion noting the forthcoming 50th anniversary of Amnesty International. I thank him for bringing this to the notice of the House. The date of 28 May 2011 marks 50 years of a movement that has championed the cause of human rights globally. The pursuit of basic freedom and protection of individuals across the divides of race, sexuality, citizenship, gender, nationality, ethnicity and ability has been unrelenting and the successes have been innumerable.

Since 1961, Amnesty International has conducted 3,341 missions to research human rights abuses around the world, including recently the treatment of asylum seekers in Malaysia. The member for Lyne mentioned Graham Thom’s performance on Dateline and, listening to the briefing provided by Graham Thom to this parliament on that mission, one can only marvel at the enormous courage of those individuals who place themselves in difficult and sometimes dangerous situations to open the eyes of the world to the many inhumanities being perpetrated on the innocent. Graham Thom is one of those very courageous people.

Amnesty International has published over 17,000 reports and public documents, including the annual human rights report, which is now produced in 25 languages. On 10 December 1961, the first Amnesty candle was lit in the church of St Martin-in-the-Fields, London. This iconic event occurred following the first meeting of Amnesty International, at which delegates made a decision to establish a permanent international movement in defence of freedom of opinion and religion. That movement was inspired by British lawyer Peter Benenson, who witnessed the growing global trend of imprisonment, torture or execution of people because of their political views or religious orientation. Many of us witness things that disgust and alarm us, but Peter Benenson had the courage to act on what he was seeing. Indeed he gave his life to ‘the vision of collective action that defines Amnesty International’s work today’. Peter Benenson said at the time:

If these feelings of disgust all over the world could be united into common action, something effective could be done.

Something effective has been done and today we are celebrating 50 years of that action to free people from violation, from having their freedoms denied. In 1973, members and senators in this parliament caught that vision and established a parliamentary amnesty group. Today, I pay tribute to the men and women of this parliament who kept that flame burning brightly for their dedicated work in ensuring that people’s rights and freedoms, wherever in the world they are violated, continue to be a focus of their work. Today we acknowledge the many successful and notable campaigns Amnesty has conducted and pay tribute to all the people of the world who involve themselves day to day in the work of this great and noble organisation. I feel privileged to join with my colleagues to keep the flame of such a great organisation burning in the corridors of this parliament.

Amnesty’s 50th anniversary provides a splendid opportunity to recommit ourselves to act as Peter Benenson did when he read about the prison sentences imposed on Portuguese students all those years ago. The Amnesty symbol of a candle wrapped in barbed wire is inspired by the ancient Chinese proverb ‘It is better to light a candle than to curse the darkness.’ May we again dedicate ourselves, as the member for Lyne said, to greater humanity and greater kindness in the carrying out of our duties within this parliament.

Mr LAURIE FERGUSON (Werriwa) (11:11): I genuinely congratulate the member for Lyne on raising this matter. For a person who from an early age was interested in other countries and events in the foreign policy area, it was a very welcome possibility, when I arrived in the federal parliament in 1990, to join the group that was just alluded to by the previous speaker. The group was already formed here, and my understanding is that it was the first in the world. I congratulate the people who established it—people like Rob Lundie, in the Parliamentary Library, who persisted over many years selling badges here once a year and basically carrying the organisation. That is another welcome event. We in this parliament do not often get involved with groups that have both parliamentary and staff members, so that is great.

I believe that the strength of Amnesty International is the perception among those who are honest and sincere that it is neutral. It is constantly belittled, attacked and vilified by regimes around the world. It is seen sometimes as an instrument of the West. It is seen as an organisation that might be undermining supposedly idiosyncratic attitudes to rights in, say, the Middle East and other nations—that somehow rights are not universal and Amnesty International is a tool of Western attitudes. It has a track record that stretches back to supporting Jews and Baptists in the Soviet Union during oppression there, taking up the cause of people who start to struggle for democracy. Today, it is a defender of Arabs against Israeli colonial measures and suppression; it is a campaigner for the rights of Arabs in the Middle East against oppressive regimes that sometimes utilise the issue of Palestine to preserve themselves.

Most people would very much regret and repudiate those regimes—Sri Lanka is a current example—that basically try to argue that there is not genuineness on the part of Amnesty International. Amnesty has the track record. It is respected for that. It is interesting to note that since its formation in 1961 it has changed its emphasis from its original one of taking up the precarious situation of those individual prisoners to looking at questions of torture, the families involved and the question of the fairness of the trials themselves. Amnesty has very much changed its level of activity over that period, but throughout it has been a very credible international source. Its receipt of the 1977 Nobel Peace Prize was certainly recognition of that.

As a former member of the parliamentary group, I perhaps have regrets that in some fashion the degree of support for the external organisation has tended to deteriorate since I arrived here. I believe that too pronounced an emphasis on the asylum refugee issue unfortunately has tended to undermine the effectiveness of the organisation in a parliamentary sense. It is far easier to have a non-partisan, inclusive organisation when you are not getting into areas that cause differences within the membership. Certainly their work on that front is merited, but I think people’s ability to work together across party lines has somewhat lessened over recent years. Amnesty, as indicated by the previous speaker, traces its genesis back to Portugal under the Salazar regime, the new order there. Allegedly it was created when some people were jailed for toasting liberty there. When I read the history of the organisation—there is some doubt about that history that Benenson gave—it certainly is a reminder of what happened through the Cold War. And it is still the case sometimes now. We see an example in East Timor, with the Islamic world supporting Indonesia throughout its occupation because it was an Islamic country. Back in that period, some people were inclined to forget what was happening in Portugal because it was seen as an ally of the United States. This is one of the strengths of Amnesty, its ability to avoid international divisions between various blocs and to come through saying that there are certain inalienable rights, that there are certain things we must stand for in regards to humanity. That is something which has allowed all of us, regardless of what we think on many other issues, to come together. I join with other speakers in recognising this 50th anniversary.

Mr RUDDOCK (Berowra) (11:16): I take this opportunity to thank the member for Lyne for enabling us to record the importance of this international organisation, Amnesty International. I have been proudly a member over something like 36 years. I was certainly engaged when the parliamentary group was formed, as was alluded to by the member for Pearce. I joined the organisation, strangely, because of the encouragement of people who, unexpectedly, would be my friends—the late Bill Wentworth, the late Dick Klugman, Tony Lamb, David Hamer, Alan Missen, Michael Hodgman. This was an organisation that could adopt the cause of fighting Right and Left dictatorships around the world and did so without fear or favour. Its core principles were of such fundamental importance. Who could disagree?—opposition to the death penalty, focusing on the use of torture, prisoners of conscience. Amnesty was a courageous organisation. I can remember Michael Hodgman railing against the advice they gave us that they would not adopt Nelson Mandela as a prisoner of conscience. Why? Because he would not eschew the use of violence in pursuit of his political objectives. They held so strongly to those sorts of judgments that they would take courageous decisions.

I was very proud of the parliamentary group formed by the efforts of Lenore Ryan from Victoria. She was brought here by Tony Lamb. I held early office, as did David Hamer, but one of our most courageous members was the late Alan Missen, who even went to the former Soviet Union and brought out some of the important records of people like Solzhenitsyn and the like to understand what was happening in that regime. We would take up the causes regularly and vociferously by visiting missions and talking to them about human rights issues. We had the opportunity, with the Bush visit to Australia—not George Jr, George Sr—to raise the issue of capital punishment in United States of America. As you can gather from my comments, I am very proud of this organisation. I have proudly worn its badge over a long period of time. Not everybody has been comfortable with that and the member for Werriwa spoke about that in part. I think Amnesty, when it gets caught up by some groups who say, ‘It is such an important organisation—if they adopt our cause as well,’ weakens its principal mission. Not every asylum seeker is a prisoner of conscience—some may be—but by running issues that others ought to be running I think Amnesty is diminished. I spent a lot of time travelling at various times. I was in Trafalgar Square and I saw some rallies being organised by Amnesty—and what were they on? Domestic violence. Domestic violence is abhorrent and people ought to run it as an issue, but it is not one of Amnesty’s core issues, in my view; yet it is now one of those issues it takes up which detracts from its principal purpose.

If you get the impression that I agreed very much with the member for Werriwa, you are right. I am opposed to capital punishment. I abhor the use of torture. I believe we should work conscientiously in relation to prisoners of conscience. If we keep that focus, this organisation, which I have been part of for so long, will contribute positively not just for another 50 years but for tens of decades into the future, while ever there is a need, regrettably, to be working on those causes.

The DEPUTY SPEAKER (Hon. Peter Slipper): Order! The time allotted for this debate has expired. The debate is adjourned and the resumption of debate will be made an order of day for the next sitting.

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Free expression and Amnesty International at 50

Address to ‘Taste of Freedom’ – Amnesty International 50th anniversary celebration function, Bond University, May 28, 2011

By MARK PEARSON, Professor of Journalism, Bond University and Australian correspondent, Reporters Without Borders.

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Amnesty International has taken up the human rights causes of countless individuals throughout the world since its British founder, lawyer Peter Benenson, first penned an article in The Observer on this date in 1961.

He drew attention to those “imprisoned, tortured or executed because his opinions or religion are unacceptable to his government” after reading about two Portuguese students who had been jailed for proposing a toast to liberty in a Lisbon bar.

The very acts of both Benenson in writing that article and of the students in proposing that toast were exercises of political expression. In Benenson’s case it was ‘free expression’, while in the case of the students it was punished by a government opposed to its exercise.

Free expression is just one of many rights Amnesty International has defended over that half century. There are many other international organisations specialising in its defence alone, including Article 19, Index on Censorship and Reporters Without Borders (for whom I am Australian correspondent).

It is a right Amnesty regards as “important for the personal development and dignity of every individual and vital for the fulfillment of other human rights”.

And rightly so. For without free expression, victims of human rights abuses would be unable to communicate their predicament and their supporters would be prevented from issuing their rally cries for change.

A scroll through the latest news entries on Amnesty’s website makes for alarming reading. Libyan citizens at risk of hidden landmines, mass arrests and torture in Syria, a woman arrested for driving in Saudi Arabia, and the politically motivated jailing of two Russians on money laundering charges. These are serious matters going to the core human rights of security, equality and a fair trial.

Yet scratch the surface of many of these cases and you find accompanying gagging of free speech or retribution for its exercise. The Saudi woman, for example, had also committed the crimes of allowing a journalist to interview her while she was driving and of planning to publish video footage of herself driving.

Other cases involve blatant intimidation and gagging of journalists and bloggers. Like Moroccan journalist Rachid Nini, arrested last month for purportedly “undermining of a judicial decision, attempt to influence the judiciary, and reporting on untrue criminal offences”. In reality, he was just doing his job exposing his country’s anti-terrorism practices in breach of international conventions.

And Palestinian writer and academic Ahmad Qatamesh, seized by Israeli security forces without charge and being held for being an ‘unspecified security risk’.

The key international document is the United Nations Universal Declaration of Human Rights, which in 1948 enshrined free expression at Article 19: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers.”

At face value, this statement seems to give all the world’s citizens a right to free expression. But it was only ever meant to be a declaration of a lofty goal and has many limitations.

Better protections came internationally in 1966 when the UN adopted the International Covenant on Civil and Political Rights, prompting a series of binding treaties. The covenant introduced a right to free expression, again at Article 19: “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”

However, the right is limited because the covenant imposes ‘special duties and responsibilities’ for the respect of the rights and reputations of others and for the protection of national security, public order, public health or morals.

Add to this the fact that many countries have not ratified the covenant and you are left without regulatory bite at this level. Complaints about individual countries’ breaches can be brought to the Office for the High Commissioner for Human Rights, but the processes can take several years and are often unresolved, as their annual reports demonstrate.

New technologies have brought their own communication freedoms, but also accompanying censorship and retribution. The so-called ‘Twitter revolutions’ throughout the Middle East and North Africa in 2010 and 2011 showed how social media could help generate movements for better respect for human rights.

Yet countries with the highest level of censorship maintain tight control over expression and take firm action against online writers who use the Internet to question their authority. This is when the blogger becomes a ‘dissident’ and any use of new media for political expression – or even the use of certain media at all – can land the offender in jail. Reporters Without Borders has released a list of enemies of free Internet speech: Burma, China, Cuba, Iran, North Korea, Saudi Arabia, Syria, Turkmenistan, Uzbekistan and Vietnam.

They are countries where bloggers, journalists and other ‘dissidents’ have been imprisoned or tortured for daring to write what they think or for encouraging others to do so.

Governments in such countries block access to full Internet use via systems like the so-called ‘Great Firewall of China’. While the Internet is seen by many as a wonderful new tool for democracy, there is a downside to the use of social media and blogs by dissidents in countries that do not value free speech: their Web-based activities can be monitored quite easily by security forces and citizens’ use of such media can leave them dangerously exposed. Blogger Nay Phone Latt languishes in a Burmese jail on a 20 year sentence for reporting in his blog about the unfolding demonstrations against the government in Rangoon in 2007 and for describing how hard it was for young Burmese to express themselves freely.

Repressive regimes also engage in modern age propaganda techniques such as cyber-attacks on target websites and on ‘phishing’ to steal dissident password information to access their email addresses and other contact details.

No regional human rights convention exists in Asia and the Hong Kong-based Asian Human Rights Commission provides an ongoing chronicle of abuses, many involving the gagging of journalists, bloggers and dissidents.

Many of these cases may seem quite foreign to our values and way of life in Australia – the kinds of things that happen in far-flung exotic places that could never occur here.

The sad reality is that I am kept all too busy in my work for Reporters Without Borders in this western democratic nation regarded by its citizens as a bastion of free expression.

Since 1961 there have been scores of Australians arrested and jailed for the exercise of their rights of free expression, press freedom or freedom of assembly.

That period has included many protests where individuals have been detained – including those marching against the Vietnam War, apartheid and modern environmental, immigration and anti-globalisation causes.

Australian journalists have been arrested and jailed in recent years. Three reporters have served time since 1989 for refusing to reveal their sources in Australian courts. Journalist Derryn Hinch went to prison in 1986 for broadcasting prejudicial material about a sex offender in the lead-up to his trial and faces jail again in a current case over his naming of sex offenders in breach of suppression orders.

Earlier this month a Sydney Morning Herald journalist was arrested by Queensland police and his iPad was seized – all because he had reported upon a conference presentation by a security expert who had allegedly breached Facebook privacy settings.

This came just two months after the NSW Crime Commission demanded source information from two Sydney Morning Herald journalists and their parent news group as part of its spat with the Police Integrity Commission.

Another indicator was news this month that the Commonwealth Immigration Department had upgraded to ‘critical’ the alert level for journalists trying to access its detention centres.

These incidents do not amount to torture or assassination, but our concern is that censorship is a slippery slope and we need to be constantly on guard against governments and their agencies limiting our rights to free expression.

Australia is a rarity among western democratic countries because it lacks a bill of rights at national level enshrining human rights like free expression. We have no equivalent to the US First Amendment which states: “Congress shall make no law … abridging the freedom of speech, or of the press.”

Most Commonwealth countries’ constitutions including those of Canada, India and Papua New Guinea guarantee freedom of expression.

But such a freedom is not stated explicitly in the constitution of Australia. In the 1990s our High Court ruled there was an ‘implied right’ to free expression on matters of government and politics in the Constitution. But that is negotiable, and shifts each time the court is called upon to rule on it.

New Zealand’s Bill of Rights Act 1990 states at s. 14: ‘Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form’. This year the NZ Supreme Court even found the right protected Valerie Morse, an anti-war protester who burned her country’s flag during an Anzac Day dawn memorial service in Wellington. Her conviction for offensive behaviour was set aside on this basis.

Australia lacks this kind of protection. It is certainly not a free expression haven. While we do not have a chronic problem of the frequent arrest and torture of dissidents and intellectuals, we certainly need to keep a close watch as legislators and judges continue to make laws eroding free expression.

While the world has changed markedly in the 50 year life of Amnesty International, a constant has been the natural tendency of those in power to gag their critics.

Active membership of such organisations can at the very least remind those who abuse their positions that they are being watched, and at best motivate them to change their ways.

You, as active members of Amnesty, carry that responsibility and privilege. Happy birthday.

© Mark Pearson 2011

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Actions against media send international message

By MARK PEARSON

Just as Australia was regaining international respectability for its approach to media freedom, three recent events stand to undermine any progress.

The incidents were the arrest by Queensland police of a Sydney Morning Herald reporter and seizure of his computer, the elevation to ‘critical’ of the official alert level for journalists trying to access immigration detention centres, and the NSW Crime Commission serving subpoenas on two Fairfax journalists.

Each sends its own message of censorship and repression to the international community just when Australia’s reputation was being restored with the introduction of better freedom of information laws and federal shield laws for journalists and bloggers.

SMH deputy technology editor Ben Grubb was arrested after his article exposing Facebook’s privacy controls included material he had gained from an interview with a security expert who had told a conference how he had accessed photos of a rival’s partner without her permission.

It was reported by The Australian to be the first time a journalist had been arrested under an obscure provision of Queensland law related to ‘receiving tainted property’.

The chilling formality of the police interview with Grubb while he was under arrest is on the SMH website .

While there was no indication of police wrongdoing, the episode triggers recollections of darker times in the relationship between Queensland police and the media in the late 1980s which prompted the watershed Fitzgerald Inquiry into corruption in that state.

It also follows just two months after two other Fairfax journalists were caught in the middle of a dispute between two enforcement agencies in the neighbouring state of New South Wales.

The NSW Crime Commission, under investigation by the Police Integrity Commission, demanded source information from two Sydney Morning Herald journalists and their parent news group.

Reporters Linton Besser and Dylan Welch wrote articles critical of the Crime Commission and it ordered them to surrender their cellphones and SIM cards in a bid to discover their sources.

It also demanded that anyone within Fairfax reveal any communication – either directly or through intermediaries – with the Police Integrity Commission or any of its staff over the past year.

Refusal would have placed the journalists at risk of contempt charges, but the commission later withdrew the demands under pressure. The correspondence at the ABC Media Watch site makes fascinating reading.

Australia is also in the international spotlight for its border control policies and related human rights issues. That reputation was not improved when it was revealed on the ABC this week that the company handling the Immigration Department’s refugee detention facilities had upgraded to ‘critical’ the alert level for journalists trying to get access to the centres.

This followed a Sixty Minutes episode when reporters were refused access to an immigration facility.

Opposition immigration spokesman Scott Morrison criticised the media policy and said it ranked journalists’ unauthorized access “…as critical as a bomb threat, a chemical weapon, a riot or even the tragic death of someone in a detention centre”.

Yet the new media clampdown will also invoke memories of Mr Morrison’s own party’s spin and cover-up of the so-called ‘children overboard’ affair a decade ago when they were in government, as outlined by a Senate inquiry.

Australia already lags behind most western democracies in its lack of any explicit right to free expression or a free media in its Constitution. These actions against journalists, combined with the government’s continued advocacy of a mandatory internet filtering scheme, send the message to the international community that Australian state and federal authorities do not place a high value on free expression.

They also undermine Australia’s diplomatic position when it attempts to influence the media policies of more repressive regimes.

* Mark Pearson is professor of journalism at Bond University and Australian correspondent for Reporters Without Borders. He tweets from @journlaw and blogs from journlaw.com

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Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer! My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2011

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Union’s press freedom report covers key issues

By MARK PEARSON (@journlaw)

The Australian journalism union has released its annual review of press freedom, with thoughtful perspectives from journalists and media lawyers on the state of free expression in 2011.

The Media Entertainment and Arts Alliance has been producing these reports for the past seven years, and the archive is available here.

Human rights advocate and barrister Julian Burnside breaks the Wikileaks saga down into its component parts to distinguish between the leaking of classified government material and the publishing of such leaked material.

Freedom of information guru, FoI editor for the Seven network Michael McKinnon, assesses reformed laws at Commonwealth and State level to determine whether they have improved transparency. He gives examples showing the lengths to which bureaucrats will go to resist release of public documents.

Veteran political correspondent Laurie Oakes analyses new federal shield laws and Queensland whistleblower protection laws but warns against complacency in the new regime.

Founder of Crikey.com Stephen Mayne demonstrates that concentration of media ownership is alive and well by mapping the ‘cosy club of associated billionaires’ running the show in Australia.

ABC Media Watch presenter Jonathan Holmes takes up the prickly issue of racial commentary and assesses whether a complaint about columnist Andrew Bolt’s comments about indigenous leaders threatens free speech.

Canberra Times writer Markus Mannheim reviews the Rudd-Gillard governments’ attempts to improve transparency in the public service.

Sydney Morning Herald journalist and author David Marr revisits a bizarre decision by the broadcast regulator ACMA (Australian Communications and Media Authority) about a television expose of a politician’s sexual preference.  He argues the Seven network’s story and the subsequent copout by the regulator add weight to the push for stronger privacy laws.

The MEAA has produced a useful annual resource for the media law researcher and press freedom advocate and it is heartening to see high calibre media and law commentators making such important contributions.

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South Australia’s antiquated sex ID law

By MARK PEARSON

Media coverage of the arrest of a prominent South Australian politician on sex charges and its political fallout on April 22 made a mockery of that state’s outdated suppression of the names of people accused of sexual crimes.

It also highlighted the difficulties faced by the mainstream media attempting to comply with the law while their online competitors in social media and the blogosphere named and shamed the accused with gay abandon.

The state’s newspapers performed layout and design gymnastics as they attempted to tell their readers very different stories on different pages – one about the arrest of an anonymous politician on child pornography charges and another on the important matter of personnel changes in the South Australian parliament.

On Tuesday, May 3, South Australian Premier Mike Rann conceded the restrictions might be a little antiquated when he announced an independent review of the 35 year old law banning the identification of the accused in major sex crimes – or even coverage of preliminary proceedings – until after they have been committed for trial. (See http://bigpondnews.com/articles/TopStories/2011/05/03/Child_sex_offenders_not_for_parly_-_Rann_608425.html )

South Australian and Queensland laws keep the accused’s identity secret until later in the criminal process. In South Australia, the identity restriction extends to a ban on any coverage of the preliminary proceedings of a major sexual offence until the accused person has been committed for trial or sentence (Evidence Act 1929, s. 71A). In Queensland, the preliminary proceedings can be reported, but the identity of the accused must remain secret until after they have been committed for trial (Criminal Law (Sexual Offences) Act 1978, s. 7).

The laws differ from those in other Australian states and territories where only the identity of the victim is suppressed. There, the accused in a sexual crime can be identified unless their identity might lead to the identification of the victim or unless a judge or magistrate decides to suppress the identity on other public interest grounds.

These restrictions did not even work very well in earlier times. Queensland media had to suppress the name of former Opposition Leader Keith Wright when he faced sex charges in 1993, while competing outlets in other states were able to name him. It meant residents in the NSW border town of Tweed Heads could read about Wright and see his photo while just a minute’s drive away in Coolangatta Queenslanders could only read about ‘a politician’.

Today’s communications defy state borders and the postings of bloggers and social media users make a mockery of state-based laws to the disadvantage of traditional media. The result is that the identity of the arrested South Australian politician has become widely circulated on the Internet, but newspapers and broadcast media in that state have been forced to comply with an outdated law.

Journalists face a $10,000 fine if they identify the person and their companies can be fined up to $120,000, the same penalties they would face if they identified the victim.

When the accused person is a politician there is the added important public interest element in citizens’ rights to be fully informed on political matters. This must surely outweigh other considerations, particularly when most other jurisdictions allow the identification of accused in such circumstances.

The South Australian example demonstrates it is just a bad law when almost everyone knows the identity of this accused politician but the mainstream media is gagged from stating it. That is unhealthy for both justice and democracy.

Now that South Australia is making the first moves towards reform, Queensland legislators should follow suit so that state does not become the suppression laggard of Australian jurisdictions when the next Keith Wright comes along.

Further information: AdelaideNow http://www.adelaidenow.com.au/news/south-australia/identity-secrecy-guards-possible-victims/story-e6frea83-1226043119942

ABC PM program http://www.abc.net.au/pm/content/2011/s3206817.htm

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