Tag Archives: Code of Ethics

National security and anti-terror laws continue to threaten journalism


* This article was first published as ‘Terror on the books’ in the Walkley Magazine on May 29, 2014.


More than 50 anti-terror laws have been introduced by the Australian government since the September 11 attacks in the US in 2001, and they continue to impact on our coverage of national security issues and place journalists and their sources at risk.

No Australian journalist would want to see lives lost in a terrorist attack, but there is evidence that existing laws give police, security agencies and the courts too much power in monitoring media activities and suppressing reports that are in the public interest. Two major reports now confirm some of these existing laws are over-reaching.

The long overdue Council of Australian Governments (COAG) Review of Counter-Terrorism Legislation was released in 2013.

As well as recommending changes to basic definitions of terrorist threats and harm, it proposes there be more opportunity for judicial reviews of the agencies’ search and seizure powers, and introducing some safeguards to the control order system (a control order restricts where a person goes and who they can meet).

The committee suggested that the communications restrictions be eased to allow a person subject to a control order access to a mobile phone, a landline phone and a computer with internet access.

Most importantly for journalists, the review recommended the repeal of Section 102.8 of the Criminal Code dealing with “associating with terrorist organisations”. This reform would put beyond any doubt the likelihood of a journalist being convicted of this serious offence by just undertaking normal reporting duties.

Another major report came in November 2013 from Bret Walker SC, the Independent National Security Legislation Monitor (INSLM). It was his third report since being appointed to the review role in 2011.Walker repeated his earlier recommendation that ASIO’s questioning and detention warrants should be abolished and suggested improvements to the definition of a “terrorist act”.

He called for a simpler system of listing terrorist organisations and inserting an exception to the “associating with terrorist organisations” provisions for humanitarian groups such as the Red Cross.

While both reports focused on issues of natural justice and human rights, neither the COAG review nor the INSLM addressed the stifling of journalism in the anti-terror laws.

Sadly, there was little in the way of media lobbying to do so either. The COAG counterterror review received 30 submissions which it posted to its website, none of which were from media-related companies or journalism or free expression organisations.

The ripples of international security operations were also felt in Australia. In 2013 the Media, Entertainment & Arts Alliance wrote to Prime Minister Tony Abbott asking for a review of the extent of metadata surveillance conducted by governments in the wake of former US National Security Agency (NSA) contractor Edward Snowden’s revelations.

There was good reason to be concerned. At least three cases in recent years have shown how the confidentiality of journalists’ sources can be compromised by surveillance by security agencies or anti-terror operations.

The retrial of “Jihad” Jack Thomas on terrorism charges in 2008 was based partly on interview materials gathered by Sally Neighbour from Four Corners and The Age’s Ian Munro and subpoenaed by the prosecution.

It emerged in the trial that up to 20 telephone calls between Neighbour and Thomas had been monitored by an ASIO agent.

The issue of confidentiality of whistleblowers’ identities also arose in the aftermath of the convictions of the Holsworthy Barracks bomb plot conspirators in 2011. The Australian had published an exclusive account on the raids in the hours before they occurred. (The three convicted plotters lost their appeals against their 18-year jail sentences last year.)

The Australian’s Victoria Police source, Simon Artz, paid for his leaks to the newspaper in the Victorian County Court with a four-month suspended sentence for unauthorised disclosure of information.

It was not a good year for whistleblowers internationally. WikiLeaks founder Julian Assange is holed up indefinitely in Ecuador’s embassy in London as he avoids extradition to Sweden on sex charges (and feared extradition to the US over security leaks). His US Army source – Private Chelsea (formerly Bradley) Manning – was sentenced by a military court to 35 years in jail for leaking classified documents. Meanwhile, Edward Snowden had fled to Russia to avoid prosecution over his leaks.

The whistleblower’s revelations about the extent of government surveillance continue to cause embarrassment, including in Australia where Prime Minister Tony Abbott reacted by attacking the ABC over its reportage. In an interview in early 2014, Abbott voiced his disapproval that the ABC had run stories about security services eavesdropping on Indonesian leaders’ phone conversations, a fact revealed by Snowden’s leaks.

The ABC then faced an “efficiency study”. It seems the Abbott government’s approach is to put the budgetary microscope on the ABC’s operations rather than wind back national security laws in the interests of media freedom.

The suppression of reporting on terrorism-related trials or evidence tendered in national security cases is an ongoing issue. The use of a closed court – combined with government media management – was central to the misplaced prosecution of Gold Coast Hospital registrar Dr Mohamed Haneef in 2007.

More than 30 suppression orders under anti-terror powers were imposed during the Benbrika trials in 2008 and 2009. In that case, Abdul Benbrika and 11 other Muslim men from Melbourne were charged with intentionally being members of a terrorist organisation. Their arrests in 2005 followed Operation Pendennis, a 16-month surveillance operation by Victoria Police, the Australian Federal Police and ASIO.

While by 2014 legislation covering suppression and non-publication orders had been introduced into only the Commonwealth, New South Wales, Victorian and South Australian jurisdictions, it appears that other states and territories are following suit to harmonise the laws.

© Mark Pearson 2014

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.

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How the ABC cuts will damage media freedom in the region

By MARK PEARSON Follow @Journlaw

[Thanks to press freedom intern Eve Soliman for her research assistance here.]

One of the saddest aspects of Tuesday’s budget cuts to the ABC and SBS and the axing of the $220 million Australia Network contract is the impact on media freedom in the Asia-Pacific region.

Screen Shot 2014-05-16 at 11.13.07 AMAmong the Australian values the Australia Network has advocated to neighbouring countries has been the effective operation of a genuinely independent national broadcaster – funded by the government yet producing high quality Fourth Estate journalism exposing corruption and questioning policy in the public interest.

Its current affairs schedule has included top shelf news and current affairs programs like 7.30, Dateline, Lateline, Foreign Correspondent, Q&A, The World This Week and of course ABC News Breakfast. Add to that the online curation via the Australian News Network website and you have a showcase of the media playing a watchdog role in a functioning democracy.

Many of the countries receiving the Australia Network fare much worse than Australia’s 28th position on Reporters Without Borders (RSF) World Press Freedom Index, including Vietnam (174th), Singapore (150th) and Malaysia (147th).

These are nations where ‘public broadcasting’ means something quite different and journalists are subjected to licensing regimes and even jail, with 232 imprisoned in Vietnam in 2012 and, according to the Committee to Protect Journalists, more this month.

Our quality public broadcasting content has operated as an exemplar of how journalism can work in a properly functioning democracy.

The Australia Network commitment was one of the few budgetary investments in media freedom made by this country – and now it is gone.

So too will many journalism jobs if ABC management is unable to find further cuts in its tight administrative budget – which is unlikely according to managing director Mark Scott.

The Budget announcement that the ABC was suffering only a 1 per cent cut over four years might not sound much, but this needs to be combined with inflation of around 3 per cent increasing operating costs.

Anyone familiar with compound interest would understand that this 4 per cent annual deterioration represents an escalating erosion of the ABC’s budget over that period – down to 96% of its current budget in the first year, 92% in the second, 88% in its third, and 84.5% in the fourth.

You can see how – when combined with inflation – the 1 per cent haircut actually becomes a 15% decrease over those four years.

That means either fewer staff, fewer programs, or low cost junior personnel replacing experienced colleagues at the public broadcasters in coming years.

Australia Network viewers seem less likely to have the opportunity to view some of the Walkley Award winning reportage brought to them through its programming in recent years.

Our Asian and Pacific neighbours have been witness – via the Australia Network – to corruption being exposed in all quarters by leading Australian journalists whose media organizations are now under threat.

The network also relayed other news stemming from the work of Kate McClymont of the Sydney Morning Herald which led to many of the recent revelations by the Independent Commission Against Corruption (ICAC).

They have also heard news of the Royal Commission into Child Abuse – also triggered by top notch investigative reporting by the Newcastle Herald’s Joanne McCarthy.

But recent Fairfax redundancies and pressures on other news organizations combines with this Budget decision to send a somber message to the region  – the quality and quantity of news and current affairs in this Western democracy is on the decline.

It will be interesting to see how this development feeds into Australia’s ranking in the 2015 RSF World Press Freedom Index.

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 2014


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Why Australians should care about World Press Freedom Day: My blog for No Fibs

By MARK PEARSON Follow @Journlaw

CITIZEN journalism site No Fibs has just posted my latest blog on today’s international marking of World Press Freedom Day.

It got a nice nod from Paul Barry of ABC’s Media Watch. Cheers Paul!

You can view the full piece here, but here is a taste:


Readers of the NoFibs site reap the rewards of citizen journalists expressing their news and views with a high level of free expression by world standards.

So why should Australians care about media freedom on World Press Freedom Day 2014?

Quite simply, because it is a ‘fragile freedom’ – continually under threat and only noticed by most people once they have lost it.

Just ask any of the refugees who have fled to Australia over the past century from regimes that have robbed them of their human rights. One of their first responses is typically that they love their new home country because it is ‘free’ and they can express themselves freely here.

Screen Shot 2014-05-05 at 4.50.16 PMWhen you look at international indices of media freedom like that of Reporters Without Borders, Australia (ranked 28th) sits in stark contrast to the censorship and intimidation of journalists in many other countries like Vietnam (174th), China (175th) and Somalia (176th).

Journalists are not usually jailed in this country (although Melbourne broadcaster and blogger Derryn Hinch was a recent exception) – and they are certainly not tortured or murdered for exercising their right to free expression here.

At least in Hinch’s case he was duly tried and convicted (for breach of a suppression order) in a legal system that is open, just and in accordance with the rule of law.

The same cannot be said of another jailed Australian journalist, Peter Greste, who remains in jail in Egypt after 130 days along with five of his Al Jazeera media colleagues (and 14 others) on trumped up charges of defaming the country and of consorting with the Muslim Brotherhood.

While Greste’s plight has been highlighted here because of his nationality, he is just one of 168 journalists jailed throughout the world this year for just doing their job. The expression ‘shoot the messenger’ takes on a chilling reality when you also consider the 25 journalists, bloggers and citizen journalists killed already in 2014.

Australia’s relatively good performance in these press freedom rankings belies the fact that there are ongoing and emerging threats to free expression.

… and that’s just half of it. Read the full blog at No Fibs.

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 2014

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Journalists revert to age-old methods to protect sources, says @camstewarttheoz


National security reporter and associate editor at The Australian Cameron Stewart (@camstewarttheoz) says investigative journalists have to leave their smartphones back at their office when they are meeting confidential sources.

Stewart said the surveillance powers of national security agencies under anti-terror laws, combined with the geo-navigational features of Web 2.0 technologies, meant investigative reporters were reverting to 1970s techniques like those of Watergate reporters Carl Bernstein and Bob Woodward used when they met their famous source ‘Deep Throat’ in an underground car park.

“That is actually still the best way to get your information,” Stewart told me in the interview below.

“The thing I’ve got to my ear now [a smartphone] is your biggest enemy in every single sense as the Snowden revelations have shown.

“The ability of authorities to track movements of journalists is really of great concern as far as protecting sources goes.

“What they’re doing is quietly authorising metadata searches and things like that. What that does is give them every phone call you’ve made and I think they can piece together through your iPhone for example what your movements are over time.

“It’s not rocket science to work out what your movements are over a certain period of time and who you’ve been speaking to and who sources might be.”

Here Cameron Stewart talks with Professor Mark Pearson of Griffith University (@journlaw) about the impact of anti-terror laws on the reporting of national security issues. Stewart shares some of the methods he uses as a reporter when dealing with off the record information provided by whistleblowers  [15 minutes, recorded 1-5-14]

© Mark Pearson 2014

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.


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Meet Miles Heffernan (@Mileshef) – shield law campaigner and @journlaw guest


Miles Heffernan (@mileshef) is a journalist and features/opinion editor with the Star Observer.

When he was a freelancer he ran a campaign on change.org calling on mining magnate Gina Rinehart to withdraw her demands for two journalists to reveal their sources. See ‘http://www.change.org/en-AU/petitions/gina-rinehart-withdraw-your-subpoenas-against-adele-ferguson-and-steve-pennells-pressfreedom‘. See also my blog from 2013 on this.

It achieved close to 40,000 signatures.

Here Miles talks with Professor Mark Pearson of Griffith University (@journlaw) about that campaign and the battle for shield laws to protect journalists from having to reveal their sources in court. See more at journlaw.com. [12 minutes, recorded 16-4-14]

© Mark Pearson 2014

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.

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Threatening letters from officialdom chill free expression – @journlaw blog #MLGriff

By MARK PEARSON Follow @Journlaw

[With research assistance from RSF interns Toni Mackey and Eve Soliman]

Intimidating letters sent by two of Australia’s most senior public servants in recent weeks sound alarm bells for free expression and a free media.

The first – from the secretary for the Department of Immigration and Border Protection Martin Bowles – was directed to freelance journalist Asher Wolf following her co-written article for the Guardian Australia on February  19, 2014 titled ‘Immigration Department data lapse reveals asylum seekers’ personal details‘.

The database Wolf had sourced via the Department’s own public website contained personal details of one third of all asylum seekers held in Australia – almost 10,000 adults and children.

The department secretary’s letter implied Wolf had obtained the material on which the article was based by ‘dishonest or unfair means’. She says the data was simply sitting on the department’s website. Bowles demanded Wolf agree not to publish the contents and ‘return all hard and soft copies of the information’ including any her storage devices.

You can view the letter here: WolfDIBP to The Guardian – A Wolf.

And in this 11 minute interview Wolf explains the episode in her own words:

On advice from her lawyers she wrote back, refusing to provide the department with anything and cited her ethical obligation as a journalist to protect her sources. To date there has been no further word from the department since that February 26 reply.

Wolf explained to @journlaw: “The response from the Government was to reframe the issue rather than sort of saying ‘whoops we made a mistake, sorry, let’s fix it up’. It was to frame it as though it had been illicitly accessed, that the confidential information had to be given back, that the files had to be given back.”

The second intimidating letter was to a politician rather than a journalist, but is no less alarming for its potential chilling effect on free expression – and all the more alarming because it involved a military chief writing direct to a senator-elect.

Chief of the Australian Defence Force General David Hurley wrote to Palmer United Party senator-elect Jacqui Lambie on March 7, following the Tasmanian politician’s claims in a media release that sexual abuse in the military was ‘an intractable problem’.

His letter stated he was disappointed she issued a media release before raising her concerns with him and encouraged her to first provide him an opportunity to reply to any such claims in the future. See the letter here: HurleyToLambieLetter

In her response (LambieReply to Australia’s Chief of Defence’s letter of complaint), Lambie – a former soldier – described General Hurley’s letter as disrespectful, condescending and improper.

“For you as the head of our defence force to take the unprecedented and extraordinary step of trying to influence an elected member of parliament by sending a letter with such a patronizing and condescending tone is a disgrace,” she wrote.

She raised the possibility of the letter constituting a contempt of parliament as an improper interference “with the free performance by a senator of the senator’s duties as a senator”.

Of course, that might be too long a stretch, but it is certainly of concern when top military and immigration officials start writing direct to journalists and politicians chiding them for their public statements and implying some wrongdoing on their part.

It is spin and ‘media management’ gone way too far – and is symptomatic of nations far lower down Reporters Without Borders’ World Press Freedom Index than Australia’s.

Both Immigration Secretary Bowles and General Hurley undoubtedly have a host of excuses for penning those letters. Bowles was clearly trying to limit the damage from the privacy leak, and indeed has obligations under the Privacy Act to demonstrate his department has done what it can to retrieve leaked information and minimise any damage caused. Hurley was clearly frustrated by a politician’s insistence on making unspecified claims of abuse when there were inquiries and other avenues for complaints to be made.

But many other strategies were available to them to deal with these issues short of writing stern reprimands from their own desks, directly to a journalist and a politician. The democratic doctrine of ‘separation of powers’ is somewhat blurry in Australia, and it is made all the more so when senior members of the executive engage in public spats with the media and politicians.

I cannot imagine that such high level officials would not realise, or be advised, that their intimidating letters would not reach the public domain. If they thought they would remain secret, then we must ask important questions about how frequently this technique is being used. If they understood their letters would likely go public, then the threat to free expression is all the more chilling.

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 2014

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10 mins with Journlaw: RSF correspondent Bob Howarth discusses media freedom and Timor Leste

By MARK PEARSON Follow @Journlaw

IN the latest episode of 10 Minutes With Journlaw, I interview Reporters Without Borders correspondent for Timor Leste about media freedom issues there and elsewhere in the region.

Screen Shot 2014-03-07 at 3.09.20 PM

10 Minutes With Journlaw: Mark Pearson interviews RSF correspondent Bob Howarth

Howarth is a veteran newspaper reporter, editor and manager who has worked throughout the Australia-Asia-Pacific region for more than four decades.

He is Reporters Without Borders (RSF) correspondent for Papua New Guinea, Timor Leste and the Solomon Islands.

In this interview we talk about media freedom issues in the region.

(10 mins, recorded 6 March 2014).

[See a summary of my speech to last October’s journalism congress in Timor Leste in my earlier post].

Read Lindsay Murdoch’s March 5 story in The Age about the state of media freedom in East Timor here.

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 2014

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The MEAA Code of Ethics: all spin and no stick


The go-to document for journalists refusing to ‘fess up their sources or taking the high ethical ground is the MEAA Journalists’ Code of Ethics – but the irony is that the journalists’ union uses notoriously ineffective and opaque processes to police this high profile code.

Screen Shot 2013-11-26 at 12.40.47 PMUnlike the Australian Press Council, the ethics panel of the Media, Entertainment and Arts Alliance (MEAA) has actual disciplinary powers at its disposal for use against individual journalists who breach its Code of Ethics – but it has rarely used them. Its powers extend to any journalists who are members of the Alliance. However, these days large numbers of journalists throughout the industry are not members.

In 1999, the alliance updated the code to a twelve-item document, requiring honesty, fairness, independence and respect for the rights of others. The alliance’s ethical complaints procedures are outlined in Section 8 of the Rules of the  MEAA (2009), summarised on the union’s website. Complaints must be in writing stating the name of the journalist, the unethical act and the points of the Code that have been breached. The judiciary committee (made up of experienced journalists elected every two years by state branch members) then meets to consider the complaint. They can dismiss or uphold the complaint without hearing further evidence, call for further evidence and hold hearings. Hearings involve the committee, the complainant and the journalist and follow the rules of natural justice. Lawyers are excluded. Penalties available to the committee include a censure or rebuke for the journalist, a fine of up to $1000 for each offence, and expulsion from the union. Both parties have 28 days to appeal to an appeals committee of three senior journalists in each state elected every four years and then to a national appeals committee of five journalists.

Because of the secrecy surrounding the cases and their outcomes there are few ethics panel case studies to work with. In 2003 Chris Warren provided me with the judgment of a 2002 case involving a complaint against a Sydney cartoonist who, the complainant alleged, portrayed the then opposition leader Kim Beazley as a person with a ‘physical and intellectual disability’, in breach of clause 2 of the code. The complaint also suggested the depiction was ‘inaccurate, unfair and dishonest’ and denied Mr Beazley a ‘right of reply’, in breach of clause 1. He also complained of a ‘continuing and malicious campaign of denigration of Labor leaders by this cartoonist’. The cartoonist’s defence was that all cartoonists regularly breached the letter of several clauses every time they did their work, but that this was the nature of artistic expression and satire. The complaint of unethical behaviour was dismissed on the basis that there was no ‘malicious bias’ and that any inaccuracy ‘was consistent with the satirical traditions of newspaper cartoons’.

Under Rule 67(h), the decisions and recommendations of the ethics panel shall be published in accordance with any guidelines that may be issued by the National Journalists’ Section Committee. When I interviewed MEAA federal secretary Chris Warren in 2003, he said the issue of publication of adjudications was a difficult one because of potential defamation action by participants. This makes it difficult to get information about MEAA ethics panel cases. Muller (2005: 185) wrote: ‘The practical result of this is that no one other than the parties, the panel and the MEAA executive ever hear about the complaints that are lodged, or what happens to them. This not only severely circumscribes the effectiveness of the procedure as a mechanism of accountability, but it offends against the principles of free expression, openness and transparency, and leaves the profession open to accusations of hypocrisy.’

While the MEAA’s website outlines the complaints procedures, it does not feature any records of complaints against journalists. Thus, both its journalist members and the general public remain ignorant of the nature and progress of any complaints against its members. In 2003 Chris Warren confirmed that the organisation received very few complaints each year, and that most were referred to the Australian Press Council. The Walkley Magazine in 2006 noted that the committee received only 67 original complaints and held five appeals between 2000 and January 2006, but could not deal with 34 of the complaints because they were to do with journalists who were not MEAA members. This meant only 33 complaints were handled in five years, an average of just over six per year. A separate tally of complaints to the Victorian branch of the MEAA by Muller (2005: 183) found that over the ten years 1993–2002 inclusive, just 23 complaints were received by the ethics panel of the Victorian branch. He provided a summary of each of them (Muller 2005: 187-8).

MEAA National Secretary Chris Warren told the Independent Media Inquiry last year that since the revised code was adopted in 1999 only three members had been censured or rebuked and that no member had been expelled for almost four decades (Finkelstein, 2012, p. 195). The reality is that with membership voluntary, the MEAA needs someone else to discipline its members when they act unethically. Its return to Press Council membership in 2005 opened the way for the MEAA to refer most complaints to that body or to the ACMA rather than having its own ethics panel deal with them at the risk of an embarrassing finding and the potential loss of a member.

There are scores of ethical codes of practice and guidance documents across the various media industry platforms – far too many for a single journalist to reflect upon while encountering a particular ethical dilemma. The irony is that the MEAA ‘Code of Ethics’ is the best known and most highly regarded ethical statement for the profession but there is a remarkably ineffective mechanism for its enforcement.


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 2013


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Whither media reform under Abbott?


Where will the new Liberal-National Coalition government led by Prime Minister Tony Abbott head with the reform of media regulation? Communications Minister Malcolm Turnbull and Attorney-General George Brandis were vocal opponents of the former Gillard Government’s proposals to merge press self-regulation with broadcast co-regulation into a new framework.


Communications Minister Malcolm Turnbull … can he concoct the magic media self-regulation formula? [Image: commons.wikimedia.org]

Recent inquiries into media regulation in the UK (Leveson, 2012), Australia (Finkelstein, 2012) and New Zealand (Law Commission, 2013) have recommended major changes to the regulation of media corporations and the ethical practices of journalists. Their motivation for doing so stemmed from public angst – and subsequent political pressure – over a litany of unethical breaches of citizens’ privacy over several years culminating in the News of the World scandal in the UK and the subsequent revelations at the Leveson Inquiry (2012) with an undoubted ripple effect in the former colonies.

Many contextual factors have informed the move for reform, including some less serious ethical breaches by the media in both Australia and New Zealand, evidence of mainstream media owners using their powerful interests for political and commercial expediency, and the important public policy challenge facing regulators in an era of multi-platform convergence and citizen-generated content.  Minister Turnbull is an expert on the latter element and it is hard to imagine him not proposing some new, perhaps ‘light-touch’, unified regulatory system during this term in office.

By way of background, two major inquiries into the Australian news media in 2011 and 2012 prompted a necessary debate over the extent to which rapidly converging and globalised news businesses and platforms require statutory regulation at a national level.  Four regulatory models emerged – a News Media Council backed by recourse to the contempt powers of courts; a super self-regulatory body with legislative incentives to join; a strengthened Australian Press Council policing both print and online media; and a government-appointed  ‘Public Interest Media Advocate’.

The $2.7 million Convergence Review, announced in late 2010, was meant to map out the future of media regulation in the digital era (Conroy, 2010). However, revelations of the UK phone hacking scandal and Labor and Green disaffection with Rupert Murdoch’s News Limited in Australia, prompted the announcement in September 2011 of a subsidiary inquiry – the $1.2 million Independent Media Inquiry – specifically briefed to deal with the self-regulation of print media ethics. Its architects – former Federal Court judge Ray Finkelstein assisted by University of Canberra journalism professor Matthew Ricketson – argued they could not decouple print news self-regulation from broadcast ‘co-regulation’ in the digital era, so devised a statutory model including both in their report of February 28, 2012, two months prior to the release of the report of its parent Convergence Review (Finkelstein, 2012).

The Independent Media Inquiry (Finkelstein) report was an impressive distillation of legal, philosophical and media scholarship. Among many sensible proposals, it called for simpler codes of practice and more sensitivity to the needs of the vulnerable. But its core recommendation for the ‘enforced self-regulation’ of ethical standards prompted fierce debate. It proposed a News Media Council to take over from the existing self-regulatory Australian Press Council and co-regulatory Australian Communications and Media Authority to set journalistic standards with a streamlined complaints system with teeth (Finkelstein, 2012, pp. 8-9) The body would cover print, online, radio and television standards and complaints. It would have a full-time independent chair (a retired judge or ‘eminent lawyer’) and 20 part-time members evenly representing the media and the general citizenry, appointed by an independent committee (Finkelstein, 2012, pp. 290-291). The government’s role would be limited to securing the body’s funding and ensuring its decisions were enforced, but “the establishment of a council is not about increasing the power of government or about imposing some form of censorship” (Finkelstein, 2012, p. 9).

The report stressed the model would be ‘enforced self-regulation’ rather than ‘full government regulation’;

…an independent system of regulation that allows the regulated parties to participate in the setting and enforcement of standards (as is presently the case), but with participation being required, rather than voluntary (Finkelstein, 2012, p. 287).

Nevertheless, refusal to obey an order to correct or apologise would see a media outlet referred to a court which could issue an order to comply with further refusal – triggering a contempt charge and fines or jail terms for recalcitrant publishers. (Finkelstein, 2012, p. 298). Such a court would be charged with the relatively straightforward task of determining whether the publisher had disobeyed an order of the statutory News Media Council. Only then might publishers get the opportunity for an appeal – again by a judge in court.

The ‘Finkelstein inquiry’ was only ever meant to be an advisory to its parent Convergence Review, chaired by former IBM Australia managing director Glen Boreham, which released its final report in April, 2012 (Convergence Review, 2012).  News media regulation represented a much smaller element of the Convergence Review’s overall brief, particularly after this topic had been hived off to the Finkelstein inquiry, so this matter constituted a relatively small part of its report. While the Convergence Review report shared Finkelstein’s concerns about shortcomings with existing regulatory systems, it proposed that ‘direct statutory mechanisms … be considered only after the industry has been given the full opportunity to develop and enforce an effective, cross-platform self-regulatory scheme’. In other words, it was offering the media industry ‘drinks at the last chance saloon’ for a three year period under its model (Convergence Review, 2012, p. 53). Its mechanism centred upon the establishment of a ‘news standards body’ operating across all media platforms – reinforcing the overall review’s preference for ‘platform neutrality’ (Convergence Review, 2012, p.51). The news standards body ‘would administer a self-regulatory media code aimed at promoting standards, adjudicating complaints, and providing timely remedies’ (Convergence Review, 2012, p. 153).

Unlike Finkelstein, the Convergence Review decided not to be prescriptive about the constitution or operational requirements for such a body, beyond some broad requirements. The largest news media providers – those it deemed ‘content service providers’ – would be required by legislation to become members of a standards body. Most funding for the new body should come from industry, while taxpayer funds might be drawn upon to meet shortfalls or special projects (Convergence Review, 2012, p. xiv). It would feature:

–       a board of directors, with a majority independent from the members;

–       establishment of standards for news and commentary, with specific requirements for fairness and accuracy;

–       implementation and maintenance of an ‘efficient and effective’ complaints handling system;

–       a range of remedies and sanctions, including the requirement that findings be published on the respective platform. (Convergence Review, 2012, p. 51)

The review’s definition of ‘content service enterprises’ (control over their content, a large number of Australian users, and a high level of revenue drawn from Australia) would catch about 15 media operators in its net. Others might be encouraged to join the body with a threat to remove their current news media exemptions to privacy laws and consumer law ‘misleading and deceptive conduct’ provisions (Convergence Review, 2012).

Both inquiries acknowledged – and rejected – the notion of a revamped Australian Press Council proposed in various submissions and appearances by its chair, Professor Julian Disney. (The Press Council was established in 1976 as a newspaper industry ‘self-regulatory’ body – a purely voluntary entity with no powers under law.) Nevertheless, during and after the reports, and with new support from most of its members, the Press Council moved quickly to ramp up its purview and powers to address many of its documented shortcomings such as the refusal of some member newspapers to publish its findings and the threat of withdrawal of funding from others (Simpson, 2012). It locked its members into four year commitments and established an independent panel to advise on its review of its content standards. Those standards are due to be announced soon.

In 2013 the Gillard Labor Government introduced a ‘News Media (Self-regulation) Bill’ to establish a new role of ‘Public Interest Media Advocate’ with the power to deregister bodies, like the Australian Press Council, if they failed to police effectively the ethical standards of their newspaper and online members. Ultimately, the proposal might leave media outlets without their current exemptions from compliance with the Privacy Act in their newsgathering operations. The Labor government later withdrew the proposal when it could not garner enough support in the Parliament – in the face of strong opposition from the mainstream media and the Coalition (now government) with Turnbull and Brandis as the lead naysayers.

The big question now centres upon not if, but when, they choose to propose some new regulatory system where serious media ethical breaches across all media platforms are channelled through a single – self-regulatory? – body. And the further – and crucial issue – will be whether they can do this without ultimate recourse to criminal sanctions for recalcitrant journalists and media groups. It is vital that they do so, given that Australia is rare among Western democracies in that free expression is not enshrined in our Constitution.

Australia’s global free press standing depends upon them devising the magic formula the earlier inquiries failed to concoct.    


Conroy, S. (2010, December 14). Convergence Review. Terms of Reference (media release). Available: http://www.minister.dbcde.gov.au/media/media_releases/2010/115

Convergence Review (2012). Convergence Review. Final Report. Department of Broadband, Communications and the Digital Economy: Canberra. Available: http://www.dbcde.gov.au/__data/assets/pdf_file/0007/147733/Convergence_Review_Final_Report.pdf

Convergence Review (2012). Convergence Review. Final Report. Department of Broadband, Communications and the Digital Economy: Canberra. Available: http://www.dbcde.gov.au/__data/assets/pdf_file/0007/147733/Convergence_Review_Final_Report.pdf

Day, M. (2012, April 9.) A shame Seven West should quit Press Council. The Australian. Available: http://www.theaustralian.com.au/business/opinion/a-shame-seven-west-should-quit-press-council/story-e6frg9tf-1226321637864

Finkelstein, R. (2012). Report of the Independent Inquiry Into the Media and Media Regulation. Department of Broadband, Communications and the Digital Economy: Canberra Available: http://www.dbcde.gov.au/__data/assets/pdf_file/0006/146994/Report-of-the-Independent-Inquiry-into-the-Media-and-Media-Regulation-web.pdf

Law Commission (NZ) (2013). The news media meets ‘new media’: rights, responsibilities and
 regulation in the digital age. 
(Law Commission report 128). Law Commission: Wellington.

Leveson, B. (2012). Report of An Inquiry into the Culture, Practice and Ethics of the Press (The Stationery Office, 2012) [Leveson Report].

Simpson, K. (2012, July 20). Journalism standards set for an updating. smh.com.au Available: http://www.smh.com.au/business/journalism-standards-set-for-an-updating-20120719-22czm.html


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 2013


Filed under Media freedom, Media regulation, Press freedom

Timor-Leste journalists decide on ethics code and press council as tougher laws loom

By MARK PEARSON Follow @Journlaw

AN historic congress of Timor-Leste journalists held in Dili over the weekend (October 25-27) voted for their first code of ethics and a seven-member press council.

But the next hurdle for media freedom in the small Asia-Pacific nation will be a press law currently before the national parliament which it is feared will feature a journalist licensing system and criminal penalties.


Timor-Leste PM Xanana Gusmao greets officials at the national journalists’ congress on Friday. Photo © Mark Pearson 2013

The media law proposed by a committee of journalists advising the government featured self-regulatory controls. However, the final version includes amendments proposed by the Secretary of State for Social Communication, Mr Nélio Isaac Sarmento, rumoured to include the licensing and criminal sanctions.

Opening the congress on Friday, Prime Minister Xanana Gusmao scolded journalists for not having developed adequate self-regulation when he had warned them to do so in 2009.

But he congratulated the media associations on their latest efforts to unify for a code of ethics and press council; stating that press freedom was important to democracy, but that freedom should be exercised responsibly.

More than 150 journalists in attendance on Sunday – representing several journalism associations – voted for the 10 point code of ethics, featuring a preamble affirming the importance of free expression and media self-regulation and clauses on: accuracy and impartiality, opposition to censorship, defence of the public interest, anti-discrimination, separation of fact from opinion, confidentiality of sources, quick correction of inaccuracies, rejection of plagiarism, protection of identity of victims, and rejection of financial inducements.

That final clause will present major challenges for Timor-Leste journalists, many of who freely admit to accepting payments from politicians for positive coverage.

Media sources say reporters are often paid US$5-20 at press conferences and up to US$40 by officials when accompanying ministers on tours to the provinces.

Such payments represent a substantial influence, given media outlets only pay their reporters about US$140 per month plus lunch and travel expenses.

Other problems facing the industry are a lack of training, a dependence on government advertising and the endemic drift of journalists to public service positions when they become available. This leaves editors and news directors with newsrooms staffed by inexperienced personnel.

The congress was funded by the European Union’s 1 million euro Media Support Program, co-ordinated by Portugal.

Foreign experts sharing their own countries’ experiences with self-regulation included the chairman of the Indonesian Alliance of Independent Journalists (AJI) Eko Maryadi, Christiana Chelsia Chan from the Press Council of Indonesia, Portuguese journalism academics Joaquim Fidalgo and Carlos Camponez, and @journlaw (Mark Pearson, Professor of Journalism and Social Media, Griffith University, Australia). [See a summary of my speech in my earlier post].

© Mark Pearson 2013

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.


Under-resourced … the director of the Jornal Independente, Mouzinho Lopes de Araujo, in his Dili office. Photo © Mark Pearson 2013


A port-side banner in Dili advertising the congress. Photo © Mark Pearson 2013


Timor-Leste Prime Minister Xanana Gusmao addresses the journalism congress. Photo © Mark Pearson 2013


Timor-Leste journalists vote on their ethical code. Photo © Mark Pearson 2013


Media freedom – blooming amidst the razor wire. Photo © Mark Pearson 2013


Leaders of some of Timor-Leste’s many journalism associations preside over the congress. Photo © Mark Pearson 2013


Education and training … crucial to the strength of the media in Timor-Leste. Photo © Mark Pearson 2013

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