Tag Archives: investigative journalism

Abbott’s attack on ABC proves politicians are free press chameleons

By MARK PEARSON

Politicians are free expression chameleons. Regardless of their political colours, they are inevitably staunch advocates of a free media and the free flow of information while in opposition.

When they win government they tend to shut down criticism and negative press by implementing policies and passing laws to limit scrutiny.

Tony_Abbott

Australian Prime Minister Tony Abbott … called the ABC ‘unpatriotic’. [Image: Google free usage]

We saw this happen in Australia this week Prime Minister Tony Abbott’s criticisms of the Australian Broadcasting Corporation on the eve of his government’s announcement of an ‘efficiency study’ on the independent national broadcaster.

Less than a year ago, the former Gillard Labor government’s proposed media regulations which risked journalists and media organisations being shackled by a new privacy bureaucracy.

Less than two years ago the Finkelstein Report had journalists potentially being jailed or fined for disobedience of its proposed regulatory regime.

At the time I blogged about the potential implications of the Finkelstein recommendations (The Drum: ‘Media Inquiry: Be Careful What You Wish For’) and then communications minister Stephen Conroy’s poorly named News Media (Self-Regulation) Bill. [Also see my commentary in The Conversation putting all this in an international media freedom context.]

Those proposals arose in a highly politicised context where the then government believed some media outlets were biased against them.

The new Abbott conservative government – despite having opposed those reforms under the banner of press freedom – now seems to have adopted the public soap box and budgetary strategies with the ABC directly in its sights.

Prime Minister Abbott used a populist radio program to label the ABC ‘unpatriotic’ following the broadcaster’s publication of claims by asylum seekers that they had suffered burns during an Australian navy operation. [Well detailed by former ABC Media Watch host Jonathan Holmes here in The Age.]

In the same radio interview Mr Abbott criticised the ABC’s reportage of the Edward Snowden NSA leaks, including the revelation that Australia’s spy agency had secretly tapped the phones of Indonesian president Susilo Bambang Yudohoyono and his wife in 2009. He questioned the funding of the ABC’s FactCheck Unit which a few days earlier disproved his claim asylum seekers who alleged mistreatment by the Navy were breaking the law.

His criticisms came only hours prior to the Minister for Communications Malcolm Turnbull announcing an “efficiency review” of the ABC and its sister national broadcaster SBS (Special Broadcasting Service). The review will be looking for cost-saving measures in the lead-up to the May budget.

Reporters Without Borders has a long history of dealing with governments that demand national broadcasters be more patriotic in their coverage under threats to withdraw funding. But these cases rarely occur in Western democracies with a relatively high media freedom ranking. (Australia’s was 26/179 in 2013).

A free news media and a truly independent national broadcaster should be neither patriotic nor unpatriotic – such calls to nationalism are anathema to genuine truth-seeking and truth-telling in society.

An independent national broadcaster is not the equivalent of the marketing arm of a large corporation.

The ABC’s reportage of both the asylum seeker allegations and the spying scandal is understandable given the Australian Government’s policy of withholding information about the fate of asylum seekers who have attempted to reach Australian shores by boat.

The Australian Government’s policy of refusing to provide the media with details of such operations and in limiting media access to detention centres deprives Australian citizens and the international community of important information on a key human rights issue.

When journalists are deprived of basic information they are within their rights to publish serious allegations like those of the asylum seekers who claimed to have been injured at the hands of Australian defence forces, particularly if government sources are refusing to offer information about the circumstances.

They are simply reporting the truth that the allegations have been made. Authorities and other media or citizen journalists can set the record straight with evidence if the allegations are unfounded.

It is quite different from false allegations about an individual citizen – where that person could sue for defamation.

There is a policy reason large corporates and government entities like the Navy cannot sue for defamation over such allegations: in a democratic society such assertions deserve circulation so citizens can weigh their credibility.

Even if ultimately proven false, the allegations of mistreatment of asylum seekers had an element of plausibility when made because the Australian authorities – including the Navy, national security agencies and the border protection regime – had ‘form’.

It may be unpatriotic to say this, but documented incidents suggest it would be naïve to give Australian governments (of whatever persuasion) and agencies the benefit of the doubt in such situations.

They include (at the very least):

  • The ‘Children Overboard’ Affair in 2001 where Howard Government and defence claims about events concerning the Norwegian freighter MV Tampa proved to be politicised and misleading.
  • The recent revelations that Australian agents eavesdropped on the Indonesian President and spied on East Timor during oil and gas negotiations.
  • The Howard Government’s dogged determination to pursue Gold Coast doctor Mohamed Haneef, damage his reputation and cancel his visa as its terrorism allegations against him evaporated in 2007.
  • A litany of examples of unpublicized incidents at immigration detention centres, evident only months after the event through Freedom of Information requests and appeals by determined citizen journalists.
  • Recent allegations of ritual sexual abuse by Australian Navy personnel on board ships used for border protection duties.

The free flow of information is crucial to the democratic standing of a country like Australia. Such attacks by political leaders and calls for patriotism are what we expect from nations ranking much lower on RSF’s World Press Freedom Index.

The Australian Government should direct its energies to improving the free flow of information in society and granting better access and information to journalists and other citizens instead of name-calling, threats of fund cuts, and bizarre calls for media patriotism.

Hear my ABC 91.7 local radio interview on the issue:

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© 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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Immigration case shows process can take the news out of FOI requests

By MARK PEARSON

A recent decision by the Australian Information Commissioner has demonstrated that persistence with a Freedom of Information application can pay off – if you are willing to wait the year or more for the appeal process to take its course. 

Farrell and Department of Immigration and Border Protection [2013] AICmr 81  (21 November 2013) was decided recently and may well be subject to further appeal.

GlobalMailDetention

FOI data used in The Global Mail multimedia coverage

On November 15, 2012, he applied to the Department of Immigration and Border Protection for access to a series of incident reports about five self-harming events logged on the department’s FI disclosure log.

On January 14, 2013, the Department provided Mr Farrell with edited copies of five documents totalling 23 pages related to his request, citing its ‘operations of agency’ and ‘personal privacy’ exemptions under sections 47E and 47F of the Commonwealth FOI Act as its reasons for the deletion of material. On February 14, 2013, Mr Farrell applied to the Information Commissioner for review of the information exempted by the Department under s 47E.

The Privacy Commissioner ruled on November 21, 2013 that the Department’s decision should be set aside and the exempted information should be released to Mr Farrell. The exemption under  Section 47E(d) provides: ‘[a] document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to…(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency’.

The Department had argued its operations would have been adversely affected if details had been released about an incident of self-harm while an individual was about to be deported from Australia on a scheduled commercial flight. It argued the information might help others avoid deportation by adopting the same behaviours. The Privacy Commissioner ruled (at paras 12 and 13):

“Much of the information exempted by the Department in document 1 is already in the public domain in the form of media articles relating to similar instances where disruptive behaviour had led to individuals being unable to be deported on commercial flights and charter flights having to be subsequently arranged. I have examined an unedited copy of document 1. Given that information of this nature is already publicly available, I do not consider that its disclosure would, or could reasonably be expected to have, a substantial adverse effect on the proper and efficient conduct of the Department’s operations or would result in the Department being required to alter its processes for deporting individuals.”

Lessons for journalists

The case holds important lessons about the workings of FOI and the exemptions that are available.

On the one hand, Farrell and his colleagues were able to publish a substantial body of material on their detentionlogs.com.au site as a result of numerous FOI requests – information later published as stories, searchable databases and graphics on other news sites including The Guardian, The Global Mail and New Matilda.

However, the case also provides an insight into the bureaucratic, technical and time-consuming side of the FOI application process. A request had taken a full year to be filed, rejected and reviewed, and the Department still had 28 days to appeal to have the Privacy Commissioner’s decision reviewed by the Administrative Appeals Tribunal. That would then open the way to a series of court appeals over the decision if either party chose to pursue them.

Theoretically, it could take years before the release of the information which might then be only of historical value rather than of news value.

© 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.

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Mental illness, the news media and open justice: the Australian experience

By MARK PEARSON

I’m in Chicago to present a paper tomorrow to the Association for Educators in Journalism and Mass Communication (AEJMC) convention – one of the world’s largest gatherings of journalism academics.

My paper is an extension of earlier work stemming from research grants from the Australian Government’s Mindframe National Media Initiative, published as an article in the May 2011 edition of the Pacific Journalism Review, and as a chapter in our book Courts and the Media: Challenges in the era of digital and social media (with Patrick Keyzer and Jane Johnston (eds), Halstead Press, 2012). You can find my summary of that chapter in an earlier blog.

In this paper, I canvas a complex array of public interests which compete in the contested terrain shared by people with mental illness, journalists, lawyers and policy makers.

Ancient principles of open justice are at odds with more modern notions of privacy and concerns that media attention might be counter-productive to the treatment of mental health patients. The paper looks at the intersection of those interests across Australia’s nine jurisdictions, where courts and parliaments have chosen to approach them in different ways, leading to a confusing cocktail of publication restrictions on the media’s reportage of matters involving citizens experiencing mental illness.

The paper canvasses the differences between jurisdictions and considers three case studies, including a recent landmark decision in the UK, illustrating the competing interests at stake.

It concludes by foreshadowing some key research needs so that policymakers might be better informed in an era when the news media outlets telling the stories of the mentally ill are not confined within jurisdictional borders.

The three case studies of different instances across different jurisdictions serve to highlight the spectrum of competing private and public interests involved in such cases.

On one side of the ledger there is open justice, transparency, and the public interest in the education of the community and policy makers about mental illness generally and also about the cost and processes of mental health justice and review processes. In forensic matters, open justice also implies the right of victims and the public to follow a matter through the system, even when the accused has been found not guilty on mental health grounds.

Balancing these are quite legitimate concerns about the effective treatment of mental health clients, the risks of tabloid-style sensationalising of mental illness, patient-health professional confidentiality, and the privacy of patients and those with whom they interact.

I use three case studies to illustrate different approaches to open justice in the mental health system:

  • The UK case of high security patient Albert Laszlo Haines who appealed to have his discharge hearing heard in public shows that not all mental health patients value their privacy over publicity about their cases and that there are lessons to be learned from transparent public appeal processes.
  • The Victorian case of the taxi driver XFJ (allowed to hold a cab licence in Victoria despite having stabbed his wife to death in 1990 and being found not guilty by reason of insanity) demonstrates that media outlets can indeed sensationalise some cases, but it also shows that important matters of legitimate public concern can be debated when proceedings are reported thoroughly using pseudonyms.
  • Western Australia’s case of mentally impaired indigenous man Marlon Noble case who had been detained for almost a decade without trial on sex charges, illustrates that open media reportage can inform the public about the mental health and corrective services systems and the plight of vulnerable individuals who might be the victims of miscarriages of justice or simply lost in the red tape of intersecting bureaucracies.

The paper concludes by arguing the competing rights and interests in the cases help explain the variations in the way lawmakers have approached the issue of publicity of mental illness processes in different jurisdictions. However, while it might explain the variations, it also highlights the need for research-driven reform in the area.

Further research can be undertaken into the attitudes of policymakers and judicial officers to transparent proceedings, longitudinal studies into the impacts of publicity upon all stakeholders, analysis of the views of forensic patients’ victims and families about open proceedings, as well as content analysis of court and tribunal decisions to assess the points at which proceedings are closed or suppression orders are issued.

The advent of the Internet, Web 2.0 and its inevitable advancements render major jurisdictional differences an anachronism. Neither the news media nor social media are contained within traditional state, territory or national borders.

Mental health patients and journalists cross borders frequently – both physically and virtually.  The time is ripe for policymakers, mental health professionals, journalists and legal professionals to address these unnecessary jurisdictional differences and work towards a research-driven model allowing for reasonably open media scrutiny of mental health processes while respecting the privacy rights and treatment needs of the vulnerable.

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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 2012

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Canadian CJ headlines ‘Courts and the Media: Challenges in the Era of Digital and Social Media’

By MARK PEARSON

Our book – Courts and the Media: Challenges in the Era of Digital and Social Media – edited by Patrick Keyzer, Jane Johnston and me – has been published by Halstead Press. Order details are here. The book was launched by Queensland Chief Justice Paul de Jersey (below) on March 29.

It stems from our symposium Courts and the Media in the Digital Era held on February 12, 2011, keynoting the Chief Justice of Queensland Paul de Jersey, News Limited chief executive John Hartigan (who has since retired) and shadow attorney-general Senator George Brandis.

We have chapters written by several speakers from that symposium as well as contributions from some other experts, including the Canadian Chief Justice Beverley McLachlin’s Supreme Court Oration on ‘Courts and the Media’, delivered in Brisbane on September 15, 2011. We thank Her Honour for agreeing to make it available to us as our opening chapter.

My own chapter looks at the intersection between the courts, the media and mental health and includes several developments that have happened since I presented the paper in February and wrote an article for the Pacific Journalism Review, published in May. (Thanks to research assistants Kiri ten Dolle and Annabelle Cottee for helping make it possible, along with some generous funding under the Australian Government’s Mindframe National Media Initiative!) You can get a sneak preview from my earlier blog.

The convergence of media and technologies have had resounding implications for the justice system, particularly with the advent of blogging and social media such as Facebook and Twitter. This, combined with broader, faster and more portable access to websites with Web 2.0 devices, has challenged traditional conceptions of jurisdiction, open justice and transparency while raising serious definitional questions about journalism and journalists. The release of tranches of documents by Wikileaks and subsequent legal action in recent months served to highlight many of those issues as pundits debated issues of confidentiality, espionage, whistleblowers, freedom of information, international relations, secret hearings, suppression, journalism, public interest and social media in the courtroom.

The papers presented at the Courts and the Media in the Digital Era Symposium and the chapters of this book address those questions from a range of perspectives – judicial, political,  administrative, journalistic, academic, and corporate – with some offering insightful hybrid views of each.

You will find a variety of voices in the chapters, reflecting the background of the authors and the circumstances of their contributions. Some bear the rhetorical hallmarks of keynote addresses, others reflect the meticulous research and documentation of academic scholarship, while some reflect a more conversational tone of a contribution to a conference panel. Such variation happens in such edited volumes, and in many ways it adds to their flavour and appeal.

While all chapters acknowledge the intersection of justice, journalism and new technologies as the focal point of the ‘Courts and the Media in the Digital Era’ theme, some are focussed less on the new media elements. All pay strong attention to the issue of open justice and its interpretations in laws and policy in the 21st century.

McLachlin CJ’s opening chapter explores the relationship between the courts and the media in the modern age by drawing upon the historical and philosophical traditions of open justice and itemising the shared interests of journalism and justice. Her conclusion foreshadowing the challenges posed by the communications revolution lays a suitable foundation for the subsequent articles to explore them in depth.

The keynote address by the Chief Justice of Queensland, the Hon Paul de Jersey, grapples with the competing interests at stake when the news media cover courts and explains several initiatives in his own jurisdiction to balance those interests in the digital era, including establishing free wi-fi in court houses, permission for journalists to tweet proceedings and the uploading of civil judgments and criminal sentencing remarks to the court webpage.

News Limited chief executive John Hartigan (who recently retired) proposed the following four reforms to enhance open justice: allowing cameras in courts for openings and sentencings; real time access to transcripts and court documents; rejection of the current suppression model and removal of take-down orders.

Co-editor Jane Johnston from Bond University surveys the international field to offer examples of the impact of social media on the courts and focuses on some recent Australian examples where tweeting from court has prompted differing judicial outcomes. She also reports on the attitudes of court information officers to social media.

Griffith University’s Jacqui Ewart draws upon her expertise as journalist, researcher and author of Haneef: A Question of Character, to analyse the implications of national security laws for coverage of anti-terror trials and to assess the new dynamic of social media in the mix.

Law academic Daniel Stepniak from the University of Western Australia traces the use of cameras in courtrooms and offers insights into the attitudes of the judiciary to audio-visual technologies in their various forms.

University of Technology, Sydney, law lecturer Geoff Holland illustrates the complex research issues at play when considering the influence of prejudicial publicity upon jurors, offering a comprehensive review of theories and cases.

Bond University legal scholars Elizabeth Greene and Jodie O’Leary apply this in the Web 2.0 environment and call for the introduction of the option of judge alone trials in jurisdictions that do not yet permit them to deal with extreme cases of prejudicial publicity.

Bond University journalism academic and leading ethics text author Roger Patching has kept abreast of the News of the World scandal and assesses the extent to which it has fuelled calls for a new tort of privacy invasion in Australia.

Federal Court director of public information Bruce Phillips traces that court’s use of technology through live broadcasts in the 1990s through live Internet streaming and more recently the use of social media for reportage from some cases.

Criminologists Alyce McGovern and Murray Lee examine the ways Australian police media units have embraced social media and conclude it has offered them a direct channel of communication with the public on a par with their more traditional media liaison.

Former court media officer, journalist and member of the Australian Press Council Prue Innes reviews courts’ use of suppression orders two years after her authorship of Report of the Review of Suppression Orders and the Media Access to Court Documents for Australia’s Right to Know Coalition and makes some other insightful observations about media access to court information.

Finally, academics Geraldine Mackenzie, Caroline Siranovic and Kate Warner from Bond University and the University of Tasmania share findings from their ARC Discovery project researching the association between Australian citizens’ media consumption habits and their level of confidence in the courts and the sentencing process.

Such a work, particularly in print format, could never provide a comprehensive account of the state of the courts-media-technology nexus as it stands today. And neither should it. That relationship is a dynamic, attempting to balance a range of rights and interests of all stakeholders against the important and historic notion of open justice.

While the technologies might change and fresh cases might test the boundaries, this book will have served its purpose if it helps us understand the core principles at stake and if it aids judges, policymakers and journalists as they try to adapt to each innovation and news scenario.

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* 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 2012

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Mental illness, journalism and court reporting – balancing the interests

By MARK PEARSON

Our book – Courts and the Media in the Digital Era – edited by Patrick Keyzer, Jane Johnston and me – will be published by Halstead Press early next year. We are in the final stages of production.

It stems from our symposium by that name we held on February 12, keynoting the Chief Justice of Queensland Paul de Jersey and News Limited chief executive John Hartigan.

We have chapters written by several speakers from that symposium as well as contributions from some other experts, including the Canadian Chief Justice Beverley McLachlin’s Supreme Court Oration on ‘Courts and the Media’, delivered on September 15.

My own chapter looks at the intersection between the courts, the media and mental health and includes several developments that have happened since I presented the paper in February and wrote an article for the Pacific Journalism Review, published in May. (Thanks to research assistants Kiri ten Dolle and Annabelle Cottee for helping make it possible, along with some generous funding under the Australian Government’s Mindframe National Media Initiative!)

The chapter stretches to about 8000 words (pending editor’s cuts) but I offer a summary here to whet your appetite …

The chapter considers the complex array of public interests competing in the contested terrain occupied by people with mental illness, journalists, lawyers and policy makers and illustrates via an examination of the legislation and three case studies that the ancient principle of open justice is at odds with more modern notions of privacy and a concern that media attention might be counter-productive in mental health cases.

It examines the intersection of those interests across Australia’s nine jurisdictions, where courts and parliaments have chosen to approach them in different ways, leading to a confusing cocktail of publication restrictions on the media’s reportage of matters involving citizens experiencing mental illness.

The three case studies, including a recent historic UK decision, highlight potential pitfalls that may operate to the detriment of both the media and those with mental illnesses.

The chapter concludes by foreshadowing some key areas requiring further research so that policymakers might be better informed in deciding how to minimise jurisdictional differences in an era when media outlets telling the stories of the mentally ill defy state and territory borders.

The intersection of mental health, the law and the media has had scant attention. The Mindframe project last year led to the development of a guide to the varied legislation for court reporters, hosted on the Mindframe site.

It is complicated further by varying guardianship and prisons laws and confidentiality restrictions. In summary, legislators in the various jurisdictions have found differing points of balance between the public interest in open, transparent and accountable proceedings for the involuntary treatment of psychiatric and forensic patients and their competing right to privacy. Conversely, the rights of their victims and the general community to be informed of the result of any such proceedings are also balanced differently. Of course it is not just a case of the patient’s privacy rights versus the public’s right to know.

Patients also have the important issue of their liberty at stake in such proceedings, which might well be compromised by a secret, unreportable tribunal or court process. These matters were at issue in three recent cases.

Haines case

Albert Laszlo Haines (identified in earlier proceedings as ‘AH’), now aged 52, was convicted of two counts of attempted wounding in 1986 when he tried to attack a doctor and a nurse with a machete and a knife. He had been held in high security institutions for almost a quarter of a century after being diagnosed at first with both a mental illness and a psychopathic disorder, which was later revised to a personality disorder alone. His antisocial behaviour included an incident where he armed himself with a fire extinguisher as a weapon and climbed into a roof space.

In 2009 he applied for discharge and for his appeal to be heard in public, “… so that the public could be aware of what he sees as failings in the system, especially in relation to his diagnosis”. The hospital opposed his application for a public hearing on the grounds it would adversely affect his health. In February 2011, after an initial ruling against a public hearing followed by two years of appeals, the Upper Tribunal (Administrative Appeals Chamber) upheld AH’s request for a public hearing of his appeal [AH v West London MHT [2011] UKUT 74 (AAC).].

Both judgments by the Upper Tribunal shed considerable light on the competing interests at stake in such matters. The earlier hearing had canvassed the potential adverse impact on the patient’s health from the process, with expert medical opinions varying on whether the public hearing might create ‘adverse or no publicity’ to the detriment of AH’s progress and on whether a refusal of the public hearing might be just as damaging [AH v West London MHT [2010] UKUT 264 (AAC), 46].

The appeals tribunal had first commissioned further data on the ‘practicalities and potential cost of providing a public hearing’, previous examples of applications for public hearings and their management, and practices elsewhere throughout Europe and common law nations. The default position under the tribunal’s rules was that all hearings should be held in private unless it considered ‘it is in the interest of justice for the hearing to be held in public’.

The tribunal said the ‘special factors for or against a public hearing’ were that the case was ‘out of the ordinary’, the patient had been detained in high security at public expense for more than 23 years, there had been a recent change in diagnosis and there was potentially ‘heightened public significance’.

The judgment reported that, of around 100,000 hearings over the seven years prior there had only been 10 applications for public hearings of the tribunal, of which only one had been allowed and that single opportunity had not been pursued.

The tribunal also considered the costs of a public hearing, both for Haines and future appellants.

The Mental Health Tribunal’s hearing on September 27-28, 2011 was historic because it became the first time the tribunal had sat in public and a month later it became the first time that one of its determinations had been published. Several media organisations attended and reported upon the hearing because of its unusualness and their coverage could be described as reasonably balanced and measured. The decision and its reasons attracted wide coverage on their release a week later. Family members said Haines planned to appeal the decision.

The case is instructive in that it involves a rare and comprehensive insight into the arguments for and against the publicity of such mental health proceedings and the reasons for decisions in a comparable jurisdiction to Australia’s.

‘XFJ’ case

Over the same time period a comparable case was proceeding in Australia, with significant differences in the outcomes. ‘XFJ’ was the subject of adverse tabloid media coverage, including headlines like ‘Killer allowed to drive taxis’, ‘Wife-killer cabbie’ and ‘insane killer’ after he was allowed to hold a taxi licence in Victoria, despite having stabbed his wife to death in 1990 and found not guilty by reason of insanity.

On October 11, 2011, the Court of Appeal of the Supreme Court of Victoria dismissed an appeal by the Director of Public Transport against a decision by the Victorian Civil and Administrative Tribunal (VCAT) to accredit XFJ as a taxi driver. The Director of Public Transport had already decided in 2008 that XFJ had the skills and fitness to drive a taxi and would meet the ‘public care objective’ by being able to provide cab services ‘with safety, comfort and convenience’.

Despite this, the director had decided it inappropriate to accredit a taxi driver who had caused the death of another because of the risk to public confidence in the taxi industry. [See Director of Public Transport v XFJ [2011] VSCA 302; XFJ v Director of Public Transport (Occupational and Business Regulation) [2009] VCAT 96, 55; Director of Public Transport v XFJ [2011] VSCA 302.]

As Appeal Court President Justice Chris Maxwell’s leading appeal judgment explained, XFJ was an Ethiopian refugee who had been persecuted in his home country and in Egypt before arriving in Australia in 1989. The following year he had suffered a serious depressive episode and killed his wife before attempting suicide.

His 1992 murder trial found him not guilty by reason of insanity. He was a model patient and his custodial supervision order was varied to non-custodial in 1998 and it was revoked entirely in 2003 after a court found he was living in a stable relationship, had friends and support, did not require medication, was coping with the stresses of daily life, and agreed to continue seeing his psychiatrists.

Over the following eight years he had several jobs including as a kitchen-hand, an aged carer and with a charity for the homeless. He had been sole carer of his 19 month old son who had leukaemia and wanted to work as a taxi driver for the flexibility of hours.

After reviewing the relevant legislation and the medical evidence, both the Supreme Court and the Court of Appeal concluded there was nothing that would render XFJ unsuitable for taxi driving and that sensationalised reporting of the case was ‘not conducive to public confidence in the industry’.

The Herald and Weekly Times had attempted unsuccessfully in 2009 to have earlier VCAT and Supreme Court orders suppressing XFJ’s identity lifted [XFJ v Director of Public Transport (Occupational and Business Regulation) [2009] VCAT 96, 5-9]. Counsel for the newspaper group, Justin Quill, cited the leading cases supporting the principle of open justice as a ‘fundamental and defining principle of our legal system’ and argued the suppression orders did not fulfil the ‘hurdle of necessity’ required in the case law. But Deputy President Michael Macnamara held ‘society’s interest in rehabilitating him as a useful citizen’ overrode any rights of potential passengers to know his identity.

He concluded with the statement that the express powers given to the Supreme Court to make suppression orders demonstrated that both Parliament and the Court accepted that rehabilitation of those acquitted on grounds of mental impairment ‘is an area which may properly be exempted from the Open Justice principle’.

So here it was determined that concerns over the ongoing mental health of the patient outweighed arguments for open justice and public safety.

Marlon Noble case

A case with some parallels to the above examples, but with important differences, came to public attention in Western Australia during 2011. Indigenous man Marlon James Noble had suffered irreversible cognitive difficulties since contracting meningitis during infancy. In 2001, at the age of 19, he had been charged with sexually assaulting two minors but was found unfit to stand trial’ due to his mental impairment. While ‘mental impairment’ is not ‘mental illness’, Western Australian law handles such cases and their review under the same legislation and processes, thus offering relevance to this study. Reviews of forensic cases of both types are handled by the Mentally Impaired Accused Review Board under the Criminal Law (Mentally Impaired Defendants) Act 1996 (WA) Part 6, with that body’s reports and recommendations going to the Attorney-General. Where mental impairment is not treatable and hospitalisation is not appropriate, the alleged offender is kept in prison. This is what happened to Marlon Noble. In 2003, he was remanded in custody indefinitely and detained at Greenough Regional Prison where he remained ten years later, aged 29, without conviction. This order was pursuant to section 19(5) of the Criminal Law (Mentally Impaired Defendants) Act 1996 (WA), now titled the Criminal Law (Mentally Impaired Accused) Act 1996 (WA).

Noble’s case was taken up by the Australian Medical Association, the WA Greens and was then the subject of an ABC Radio National Law Report on March 22, 2011. Much more detail on his case became available after a report to the Minister for Corrective Services prepared by Robert Cock QC was tabled in the WA Parliament on 18 August 2011.

The Cock Report revealed the Mentally Impaired Accused Review Board had in 2006 approved a five step plan to gradually release Noble back into the community. In 2010, Noble was allowed 48 hours’ leave of absence per week with the support of the Disability Service Commission. He had owned his own house for four years and held down a job outside of prison.

However, he tested positive for amphetamines on his return from weekly release on September 3, 2010. Despite a further urine test detecting no illicit drugs, and a declaration by Noble’s support worker that she had supplied him with a Sudafed tablet, he was charged under s70(d) of the Prisons Act 1981 (WA) with the aggravated prison offence of using an illicit drug and his leave of absence was suspended.

Mr Cock dealt with the oversights in the prisons and board processes leading to this decision which delayed for six months Noble’s the chance to work towards his eventual release. Noble was returned to that graduated release program on March 25 this year.

By late 2011 the Marlon Noble case was displaying characteristics of a miscarriage of justice. As Noble’s lawyer Matthew Holgate pointed out on the ABC’s Law Report, the charges his client faced remained only allegations for the decade of his incarceration, no evidence against him had been tested, nor had he been given the opportunity to enter a plea.

All of this was reportable through a combination of open justice principles, parliamentary privilege and West Australian legislation on mental impairment forensic cases. Section 171 of the WA Criminal Procedure Act 2004 provides for open court as the default position, although courts can suppress identities, and in cases like this other restrictions related to child witnesses and sexual assaults would come into play.

The Noble case demonstrates that the closing of proceedings, the lack of identification of parties and suppression of evidence in mental health proceedings diminishes the transparency of those proceedings and can lead to the ongoing incarceration of patients in circumstances where publicity about their cases might have resulted in different outcomes. Certainly, it was the publicity factor in this case that led to the increased scrutiny and review of the patient’s plight.

The way ahead through research and review

The three case studies of different instances across different jurisdictions serve to highlight the spectrum of competing private and public interests involved in such cases. On one side of the ledger there is open justice, transparency, and the public interest in the education of the community and policy makers about mental illness generally and also about the cost and processes of mental health justice and review processes. In forensic matters, open justice also implies the right of victims and the public to follow a matter through the system, even when the accused has been found not guilty on mental health grounds. Balancing these are quite legitimate concerns about the effective treatment of mental health clients, the risks of tabloid-style sensationalising of mental illness, patient-health professional confidentiality, and the privacy of patients and those with whom they interact.

The chapter concludes by calling for some uniformity in approaches, informed by some further research into both the policymaking and into the positive and adverse impacts of open processes. I hope you find it useful when the book is published.

* 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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My top five media law topics for country newspaper editors

By MARK PEARSON

Address to the annual conference of the Queensland Country Press Association at Palm Meadows Radisson, Gold Coast, October 15, 2011.

Big city newspaper editors might perceive their provincial peers as ‘oh so last century’, but their country cousins have the basic ingredients to outlast most other print media in the Web 2.0 era.

The 21st century publishing environment is all about niche markets with a strong sense of community – real and virtual. And country newspapers already have that in spades.

But the Internet and social media present legal traps a 1980s provincial newspaper journalist could never have imagined.

These are my top five.

  1. You’re liable wherever you’re downloaded. It’s old news now that Australia’s High Court was the first to decide that you could be sued wherever your material is downloaded in the 2002 case of Dow Jones v. Gutnick. But the message has still not gotten through to many editors and journalists who continue to think locally when their defamation and contempt is actually sailing through the ether to litigants and prosecutors in other jurisdictions. It moots for small country newspapers keeping their news in their print edition – at least you can contain your circulation to just one or two jurisdictions that way and your parent company won’t be sued or charged somewhere else over your online oversight. That goes for contempt, defamation, breach of suppression orders and other reporting restrictions in other states and territories. (It might also add value to your print edition if readers know they can read all that saucy material about over-the-border happenings in your small local newspaper.)
  2. Your website keeps you liable – take it down and boost the value of your print archives. There are, of course, all sorts of reasons why you want a Web or social media presence for your printed provincial newspaper. But you might think twice about leaving your news publicly available for too long after publication. That’s because if you leave the material on your servers it might be considered ‘republished’ each time it is downloaded, as Kiwi lawyer Steven Price has advised. Australia’s limitation period for defamation law suits is one year – but the clock starts ticking again every time someone downloads the story so you finish up having permanent liability if you leave it searchable within your site. This new permanence of stored material also creates problems for digital archives – as lawyers Minter Ellison have pointed out. Be especially careful not to link current matters – particularly court stories – to previous coverage. The best approach is to take all steps to withdraw any dubious material as soon as possible. If others choose to forward or republish your defamatory material, it has hopefully become their problem rather than yours.
  3. In Australia, you’re liable for the comments of your ‘friends’ and correspondents. Some countries like the US offer publishers and bloggers complete immunity from the comments of others on their sites, and Internet Service Providers get some protection in most Western democracies. But you will normally be required to take offensive or illegal material down once it has been brought to your attention. That’s certainly the case in Australia. Earlier this year an Australian Federal Court found a health company was responsible for Facebook and Twitter comments by fans on its account in defiance of a court order that the company not make misleading claims about its allergy treatments. The court ruled that the company should have taken steps to remove the comments as soon as it had become aware of them, as Addisons Lawyers explained. For country newspaper editors, this is a good argument for treating your website forums just like your good old fashioned letters pages – and vetting comments very carefully for legal issues before you post them. Moderate before publishing. Facebook makes this harder, but at the very least you should be deleting risky comments the instant they are posted. Queensland Police learned that lesson earlier this year when there was a spate of prejudicial comments from citizens about suspects on their Facebook wall. And just last week the Queensland Supreme Court ordered Google to reveal the identity of those behind a website defaming a Gold Coast entrepreneur and motivational speaker.
  4. ‘Pssst … off the record … source confidentiality is dead’. Much has been made of Australia’s new federal shield laws allowing journalists and bloggers to protect their confidential sources. For a start, it only applies to Commonwealth and NSW cases, and even there the courts still have a discretion to force journalists to reveal their sources if there is a greater public interest in the question being answered. But really, who can hope for any real level of confidentiality or secrecy in their dealing with sources in the modern era? The new surveillance regime means both the journalist and the whistleblower are traceable via a combination of technologies – phone calls, emails, location tracking, social media tagging and check-ins, and CCTV cameras to name just a few. It doesn’t take much for an organization or a government agency to be able to put two and two together to work out who was in communication with a reporter at a certain point in time. Even Bernstein and Woodward would have a hard time keeping Deep Throat confidential in 2011 with the phones in their pockets betraying their movements and the security cameras in the public park recording their secret rendezvous. Your top investigative reporters for national and international media outlets may have techniques to navigate all this, but I’d suggest your average provincial reporter deal with their sources on a strictly ‘on the record’ basis.
  5. Your copyright … get over it! Intellectual property law can get seriously nasty and complex, so I certainly wouldn’t recommend country newspaper editors ramping up their plagiarism of the work of others or cut-and-pasting web-based material into your own stories. While there are generous defences available in fair dealing for the purposes of news, commentary and parody, you’d need an IP lawyer to tell you whether you are working within them. But in this rampant international free exchange of information you’re sending all the wrong messages when if you try litigation to pursue your own organisation’s copyright in your news material. US newspaper group the Denver Post has ended up with egg on its face after outsourcing its IP litigation to a so-called ‘copyright troll’ called Righthaven. Their pursuit of small players for thousands of dollars in damages has backfired and looks like costing them dearly in reimbursements, lawyers’ fees and bad PR. Unless you are part of a large group taking on the blatant commercial pirating of your IP by another major operator, I think you’d be best focusing your attention on building your print and online markets by being first with the local news that matters. If someone steals your material afterwards, send them a letter politely asking for acknowledgment. Better to be a caring and sharing corporate citizen in your town than the ogre that takes the locals to court.

© Mark Pearson 2011

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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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

——–

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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