Tag Archives: media freedom

Scandalising the court – backgrounding the recent Victorian Court of Appeal matter

By MARK PEARSON

The ancient contempt charge of ‘scandalising the court’ appeared alive and well last month when the Victorian Court of Appeal formally stated its concerns about criticisms made by three Australian government Ministers, published in the national daily newspaper The Australian.

The statement noted:

Given that the court’s decisions in both cases were pending, the court is concerned that the attributed statements were impermissible at law and improperly made in an attempt to influence the court in its decision or decisions. Further, the court is concerned that some of the statements purported to scandalise the court. That is by being calculated to improperly undermine public confidence in the administration of justice in this state in respect of the disposition of the appeals that the court has presently under consideration.

The court was further concerned that the attributed statements were made by three ministers of the Crown. The statements on their face:

  • Fail to respect the doctrine of separation of powers;

  • Breach the principle of sub judice; and

  • Reflect a lack of proper understanding of the importance to our democracy of the independence of the judiciary from the political arms of government.

The newspaper and the three ministers narrowly escaped contempt by apologising for their comments criticising the judiciary in the midst of two major terrorism trials.

Given the fact that the contempt charge of scandalising the court was front and centre in the debate, I reproduce here my 2008 article from the Pacific Journalism Review explaining that charge, its origins, and recent application.


Pearson, M. (2008, April). Scandalising media freedom: Resurrection of an ancient contempt. Pacific Journalism Review, 14(1), 64-78.

Abstract

The ancient charge of “scandalising the court” (publications aiming at lowering the authority of the court) has had a resurgence in Australia over the past decade, at the very time judges and magistrates have developed an inclination to sue for defamation. The combined effect is to send a warning to media organisations to take care when criticising judicial officers or the judicial process, particularly if that involves implying some improper motive on the part of a judge or magistrate. In New Zealand there have been some isolated but significant threats and cases, particularly in the volatile area of family law. This paper reviews some recent Australian and New Zealand cases where a charge of scandalising the court has been either threatened or enforced and considers the implications for freedom of media expression in a new era of anti-terrorism when important questions are being asked about the fairness of justice processes.

The form of contempt of court known as ‘scandalising the court’ – defined as ‘any act done or writing published calculated to bring the court or a judge of the court into contempt or to lower his authority’ (R v. Gray, 1900) – has long been used by small African and Pacific Island states as a mechanism for silencing media criticism of the judicial process. (See, for example, Attorney-General v. Namoa, 2000; and Chaudhary v Attorney-General, 1999; where it was used recently in Tonga and Fiji). In Canada the offence has been found incompatible with that country’s Charter of Rights and Freedoms, in the United Kingdom it has not been prosecuted successfully against the media since 1931 and in the United States it does not exist at all (Weisenhaus, 2007, pp. 74-75). Sadly, it has been revitalised in Australia over the past decade at the very time members of the judiciary have begun to sue for defamation, presenting a dual affront to media freedom. It has also been used in a notable case in New Zealand and threatened in another. This is despite the fact that the legislature in New Zealand and the High Court in Australia have made moves to enshrine freedom of communication, in New Zealand with a Bill of Rights and in Australia within a series of decisions through the 1990s guaranteeing free speech on governmental and political matters. This paper considers briefly the background to scandalising contempt before reviewing the key cases in the field and considering the resulting implications for judicial critique in the media.

Background to scandalising the court

One of the most famous examples of scandalising the court was the attack in the Birmingham Daily Argus upon Crown Court Justice Darling at the turn of the last century. Editor Howard Alexander Gray was convicted of contempt for his tirade against the good justice, describing him as an “impudent little man in horse-hair, a microcosm of conceit and empty-headedness” (R. v. Gray, 1900).

The term ‘scandalising’ was described in the Australian High Court in 1935 as applying to:

publications which tend to detract from the authority and influence of judicial determinations, publications calculated to impair the confidence of the people in the Court’s judgments because the matter published aims at lowering the authority of the Court as a whole or that of its judges and excites misgivings as to the integrity, propriety and impartiality brought to the exercise of the judicial office

(R. v. Dunbabin; Ex parte Williams, 1935, p. 442).

This type of contempt can be committed by publishing material scandalising the courts or judges by abusing them in scurrilous terms, alleging they are corrupt or lack integrity, or that they have bowed to outside influences in reaching their decisions (Pearson, 2007, p. 109). Historically, the courts have been tolerant of reasonable criticism. Lord Atkin summed up the approach with this quote in 1936: ‘Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful, though outspoken, comments of ordinary men’ (Ambard v. Attorney-General of Trinidad and Tobago, p. 335). This statement reinforced the fact that in Britain the offence was considered to have become obsolete in 1899, as Butler and Rodrick note (2004, p. 282). But, they continue:

This declaration turned out to be premature. The offence remains extant in England, although it has been described as quiescent, as there have been no convictions for scandalising contempt for almost 70 years. In Australia there is no doubt that the offence continues to exist. In fact, prosecutions are relatively common.

As this paper sets out to establish, scandalising charges have become even more common in recent years, a disturbing development for media freedom.

The two best-known cases in this area in Australia in the late 20th century were called the ‘BLF cases’, as both involved officials of the militant union, the Builders’ Labourers Federation — Jack Mundey and Norm Gallagher — a decade apart. In each case, the accused had made comments (picked up by the media) implying that judges had bowed to union pressure in reaching their decisions. The first, Attorney-General (NSW) v. Mundey (1972), occurred during the heat of the anti-apartheid protests against South Africa in the early 1970s. Members of the Builders’ Labourers Federation had sawn off the goalposts at the Sydney Cricket Ground in the prelude to a rugby Test match between Australia and South Africa’s Springboks. After their trials, a union official, Jack Mundey, told the media the judge should have allowed evidence of broader political material in their defence, such as United Nations documentation on South Africa’s race policies. Mundey claimed there had been a miscarriage of justice and that the judge was a racist. Mundey was charged with contempt for these comments, but the charges were dismissed in the Supreme Court because Mundey’s comments about the judge being a racist needed to be considered in the broader context of his comments about racism throughout Australian society. The court ruled that Mundey would have been in contempt if he had implied that the judge had been motivated by some racist bias against the accused in reaching his decision.

The second BLF case, Gallagher v. Durack (1983), a decade later, had a different result. There, Builders’ Labourers Federation federal secretary Norm Gallagher won a Federal Court appeal against one contempt charge, but his comments about the judicial process landed him in contempt on a new charge of scandalising the court. Gallagher told the media that industrial action by his union members had exerted enough pressure to force the court to reverse the decision to jail him over the first contempt charge. He told one television channel: ‘the rank and file of the union … has shown such fine support of the officials of the union and I believe that by their actions in demonstrating in walking off jobs … I believe that has been the main reason for the court changing its mind’ (Gallagher v. Durack, 1983, p. 239). The Federal Court held that the statement was contemptuous and sentenced Gallagher to three months’ jail. (The court justified the jail sentence on the basis that Gallagher had boasted that if he had been fined the union would pay it for him.) The decision was appealed to the High Court, which upheld the contempt conviction. The court said the whole area of scandalising involved balancing the principle of free speech against the need to maintain public confidence in the judicial system. Gallagher’s insinuation that the Federal Court had bowed to outside pressure in reaching its decision was calculated to undermine public confidence in the Federal Court. Justice Murphy dissented, saying the case raised important principles of both free speech and justice.

In a more recent case, the Anissa Pty Ltd v. Simon Harry Parsons on application of the Prothonotary of the Supreme Court of Victoria, (1999, at para. 19), Justice Cummins of the Supreme Court of Victoria summed up the three basic principles of contempt by scandalising the court:

First, proceeding for contempt of court is not and must not be in diminution of free speech. Second, proceeding for contempt of court is to preserve the administration of justice. Third, proceeding for contempt of court is not to protect the individual person of the judge.

A turning point in the law of scandalising was reached with one of the Australian High Court’s famous free speech decisions in 1992 — Nationwide News Pty Ltd v. Wills. There, a newspaper group challenged the federal government’s power to legislate against criticism of the Industrial Relations Commission or its members. The High Court held there was an implied constitutional right to criticise important public institutions and that this legislation infringed that right. However, the court also ruled that the crime of scandalising the court was not obsolete and that two defences applied to it: truth and fair comment (Chesterman 2000: 68). (In other words, it would be a defence to a charge of scandalising the court if you could prove that the substance of your criticisms was true or that your criticisms were made in good faith, were honestly held, fairly conducted and did not imply improper motives on the part of the judiciary.)

In Nationwide News Pty Ltd v. Wills, Mason CJ described scandalising as a ‘well recognised form of criminal contempt’ (at para 21) but suggested there was no contempt at common law ‘if all that the defendant does is to exercise his or her ordinary right to criticise, in good faith, the conduct of the court or the judge’ (at para 21). He stated the judiciary should be open to criticism and cited US Supreme Court Justice Hugo Black stating in Bridges v. California in 1941:

The assumption that respect for the judiciary can be won by
shielding judges from published criticism wrongly appraises the
character of American public opinion. … an enforced silence, however
limited, solely in the name of preserving the dignity of the bench,
would probably engender resentment, suspicion, and contempt much more
than it would enhance respect (pp. 270-271).

Burrows and Cheer (2005, pp. 384-387) offer six danger zones for scandalising the court:

  • Extravagant and scurrilous language;
  • Vendettas against judges;
  • Criticism based on inaccuracies;
  • Accusations of bias or impartiality on the part of the judiciary;
  • Suggestions judges are susceptible to pressure; and
  • The social conditions of the times.

The key recent New Zealand case of scandalising the court, Solicitor-General for NZ v. Smith (2004), also raised issues of free expression in relation to that country’s Bill of Rights Act. The case was explained well by Cheer (2004). The High Court found MP Nick Smith had made several inflammatory media statements about a custody dispute before the Family Court which undermined public confidence in the court and had the potential to interfere with the administration of justice by placing public pressure upon the court. As Burrows and Cheer (2005, p. 386) noted, ‘whichever way the Family Court judge decided the case, the public perception would be affected by seeing the pressure that had been so publicly applied’. It also convicted TV3 and Radio NZ of the same charge and found the freedom expression provisions of section 14 of the Bill of Rights did not offer protection against a charge of scandalising the court. Justices Wild and MacKenzie stated:

We do not accept that the offence of scandalising the Court cannot be justified as a reasonable limitation upon freedom of expression… The rights guaranteed by the BORA [Bill of Rights Act] depend upon the rule of law, the upholding of which is the function of the Courts. Courts can only effectively discharge that function if they command the authority and respect of the public. A limit upon conduct which undermines that authority and respect is thus not only commensurate with the rights and freedoms contained in the BORA, but is ultimately necessary to ensure that they are upheld. (Solicitor-General for NZ v. Smith, 2004, p. 568, cited in Burrows and Cheer, 2005, p. 384).

Thus, in both countries, despite the legislature and the highest courts enshrining free expression about politics and government, the courts have decided this ancient punishment should still be available to the judiciary.

 

The resurgence of scandalising the court

Over the past 10 years in Australia and New Zealand there have been several charges or threats of scandalising the court involving the media in a variety of ways, all containing extreme statements about the judiciary. These include:

  • Re South Australian Telecasters Limited (1998). The Family Court of Australia stopped Channel Seven in Adelaide from broadcasting a current affairs story about a custody battle between the natural parents of two children and their foster mother. As well as identification issues related to the dispute taking place in a small semi-rural town, and the risk of sub judice contempt related to the upcoming custody hearing, Chief Justice Nicholson expressed concern about the potential for scandalising the court. He said the report risked bringing the court into contempt and lowering its authority.
  • Alice in Wonderland case (2001). As Burrows and Cheer (2005, p. 387) report, an Environment Court judge asked counsel for argument over whether a contempt by scandalising had been committed when a local body politician criticised an Environment Court decision as ‘Alice in Wonderland’ in an issued statement. He also called upon landowners to state their disapproval to the judge. The matter was eventually resolved with an apology where the politician withdrew the comments.
  • Hoser & Kotabi Pty Ltd v. The Queen (2003). The author of two books about police corruption in Victoria was fined $3000 and his publishing company fined $2000 for making malicious and baseless allegations of bias and impropriety against two County Court judges who had tried earlier cases involving the author. A defence that the statements were fair comment made in good faith failed.
  • Bell v. Umina Beach Bowling Club Ltd (No 2) (2003). Directors of a New South Wales bowls club were disgruntled that their suspension of a fellow director had been ruled void by NSW Chief Judge in Equity Justice Young. The Central Coast Herald wrote a report of the decision, ending with the sentence: ‘Two of the club directors indicated an appeal against Justice Young who they accused of bias.’ The judge warned the comment was a contempt by scandalising, but handled it with a warning. Justice Young said: ‘Of course there is a wide range of legitimate criticism that can be made of courts and their decisions. However a statement to a newspaper of wide circulation that the only reason the spokesman lost was because the judge was biased goes beyond legitimate criticism, weakens the authority of the court in the eyes of the public and is a contempt.’
  • Website case (2003). A New Zealand-based web site listed 14 judges it was purportedly investigating for ‘corruption, incompetence and suspect character’ and threatened to release further information proving these allegations. Burrows and Cheer (2005, p. 385) report that the publication prompted a letter from the Solicitor-General and the material was subsequently removed from the site.
  • Attorney-General for State of Queensland v. Colin Lovitt QC (2003). Barrister Colin Lovitt was so frustrated with a Queensland magistrate’s ruling in a high-profile case, he turned to journalists covering the hearing and declared: ‘This bloke’s a complete cretin. Surely they can’t all be like this.’ The comments were reported and journalists testified they had heard him. Queensland Supreme Court Justice Richard Chesterman fined him $10000, saying the statement constituted both ‘scurrilous abuse and an attack upon the authority of the court’.
  • Mills & Ors v. Townsville City Council & Anor (No. 2) (2003). Planning and Environment Court Judge Clive Wall considered charging three Townsville councillors with contempt by scandalising when they were quoted criticising his decision to reject their approval of a nursing home development. One accused him of making decisions on design and aesthetics and another suggested the judge had ‘usurped the role of council’. Mayor Tony Mooney was quoted as saying: ‘Those appointed to the bench are not appointed by divine intervention [and] they don’t always get it right.’ Judge Wall decided the comments did not amount to contempt by scandalising because they could not be said to be of a character calculated to interfere with the administration of justice or to undermine the public confidence in the proper functioning of the Courts’. ‘Courts should not rush to be overly critical of criticism, even discourteous, wrong and mistaken criticism, as the present is’, he said.
  • Solicitor-General v. Smith (2004). MP Nick Smith was fined $5000, TV3 $25,000 and Radio New Zealand $5000 by the New Zealand High Court over comments he made about a Family Court custody case which were broadcast on the television and radio stations. The comments were inaccurate, applied pressure on the court, undermined confidence in the judicial process and had the potential to interfere with the administration of justice, the court held.
  • DPP v. Francis & Anor (No. 2) (2006). Veteran Adelaide broadcaster Bob Francis was given a nine week suspended jail sentence and fined $20,000 over a 2005 program in which he criticised a magistrate for considering granting bail to a man accused of possessing child pornography. (Magistrate Gary Gumpl was obliged under legislation to hear a bail application.) Francis told his audience: ‘Oh, smash the judge’s face in.’ The magistrate also settled out of court for a reported $110,000 defamation payout (McGarry 2006).
  • Environment Protection Authority v. Pannowitz (2006). Steepleton Pty Ltd and its director Kenneth Pannowitz were convicted and fined by the Environment Protection Authority in New South Wales for unlawful transport and disposal of waste. Part of their sentence was an order to place an advertisement in the Newcastle Herald newspaper with stipulated wording announcing their conviction. The director changed the notice in various ways and added the sentence ‘This matter has been referred by Steepleton to ICAC for further investigation’. Land and Environment Court Justice Lloyd found the suggestion that a corruption body was being called upon to investigate the court had ‘an inherent tendency to scandalise the court’. He also ruled Pannowitz had interfered with the course of justice by changing the size, position and wording of the notice.

 

Family Court criticism

Family law cases can be particularly volatile and the Family Court in both countries has been subject to harsh criticism by both litigants and the media, some of which have led to scandalising contempt charges as noted above in the Re South Australian Telecasters Limited (1998) and Solicitor-General v. Smith (2004). Other scandalising charges have been pursued against Family Court litigants without involving the media. Disaffected fathers who have lost custody of their children have often been scathing in their criticism of the court. As Lane (2000, p. 14) reported, the Family Court brought scandalising charges against four of its strident critics who protested with placards and leaflets outside its building in Melbourne in 1998, but the cases fell over when a judge threw out the case against the first, ‘PT’. In New Zealand, such individuals have faced other charges. For example, Rowan (2007) reports that the founder of the HandsOnEqualParent Trust, Jim Baily, was charged with disorderly conduct over his protest against the Family Court by driving a van with a loudspeaker around the streets of Tauranga. The charges were withdrawn.

Heads of the Family Court in both countries took public stances in 2006 to address such critics. New Zealand’s Principal Family Court Judge Peter Boshier said the media’s reportage of men’s groups’ gripes about the court’s alleged secrecy, biases and unfair processes was itself often biased and undertaken without reporters actually attending the court proceedings. “The reporting of the father’s groups’ protests shows that the more strident and extreme the claims made the more likely the media will give them publicity – and uncritical publicity,” he said (Boshier, 2006, p.5). In Australia, the Chief Justice of the Family Court, Diana Bryant, went public to counter criticism that her court was biased by announcing the court would be collecting statistics including those showing the percentage of arrangements involving or excluding fathers (Porter, 2006, p. 6).

When magistrates and judges sue

Complicating the scandalising cases is the fact that members of the judiciary have become more inclined to sue for defamation in recent years, as evidenced by the award of $246,500 in damages in 2002 to Victorian Deputy Magistrate Jelena Popovic over a Herald Sun article by Andrew Bolt (Popovic v Herald & Weekly Times Ltd and Anor, 2002), and the 2005 victory over the Sydney Morning Herald by NSW magistrate Pat O’Shane (John Fairfax Publications Pty Ltd v O’Shane, 2005). Burrows and Cheer (2005, p. 383 footnote 29) also record a New Zealand newspaper report of a judge settling a defamation action against a media organisation. The propensity of the judiciary to sue means media organisations potentially face both criminal and civil responses to their harsh critique of the administration of justice in the form of a scandalising contempt charge and a defamation suit.

Conclusion and directions

All this is not to say that judges in either country jump at the opportunity to charge media organisations with contempt by scandalising. Media outlets do indeed publish quite harsh criticisms of the judiciary and get away with it. For example, the editor of Sydney’s Daily Telegraph, David Penberthy, almost challenged the courts to charge him with contempt when he reported that District Court Judge Ian Dodd had developed quite a reputation for going to sleep while presiding over cases. Penberthy started his piece as follows:

This might constitute a contempt of court. But we thought we’d run it anyway, as there’s every chance the judge in question will be curled up under his judicial sombrero, oblivious to any slur against his name. (Penberthy, 2005, p. 21).

While Penberthy went ahead and published his humorous exposé of the sleeping judge, the point for this article is more that he was ‘chilled’ enough by the contempt laws to verbalise the risk in his very first sentence. An ancient law hangs like a guillotine over fair and open reportage in the modern era.

Twenty years ago the Australian Law Reform Commission (1987) criticised the law of scandalising on two main grounds and recommended its common law version be abolished. The first criticism was that there was no need to prove the accused intended to impair public confidence in the administration of justice; it was enough that the accused published the remarks intentionally (para 414). Secondly, there was no formal defence of justification available to the accused; the truth or falsity of the published remarks was irrelevant (para 415). Of course, as noted above, the High Court indeed decided truth would be a defence to scandalising in Nationwide News Pty Ltd v. Wills (1992).

While the Commission recommended scandalising be abolished from the common law, it suggested it be replaced by a limited offence which prohibited the publication of an allegation imputing misconduct to a judge if it was likely to cause serious harm to the judge’s reputation in his or her official capacity (para 460). Liability would lie with each officer of the media organisation in a position to exercise control over the publication (para 261) and the initial maker of the scandalising statement if he or she knew, or should have known, the allegation would be published (para 264). The Commission also recommended the defence of justification (if the accused proved the allegation was true or believed it was true on reasonable grounds) and the defence of it being made as part of a fair and accurate report of court or parliament (para 460). The offence would be tried by jury except when all concerned had consented to have it tried summarily by a magistrate (para 476, 479).

The Commission’s recommendations, the free speech cases in the Australian High Court in the early 1990s, the higher public profile of the judiciary and the fact that more judicial officers were pursuing defamation actions to defend their reputations all raised hopes that the authorities would not pursue charges of scandalising the court. Such hopes were reinforced in 2005 when Federal Court Justice Ronald Sackville delivered the 13th Lucinda Lecture at Monash University (Sackville, 2005). Sackville asked ‘How fragile are the courts?’ and traced the history of criticism of the courts, including a critique of scandalising contempt. He supported the ALRC by suggesting courts should be able to resort to some powers ‘in the rare cases where verbal attacks pose a genuine threat to the standing of the judiciary’. He also suggested that, like politicians and other public officials, judges should be able to sue for defamation where their reputations have been unfairly damaged. He concluded:

But the independence of the judiciary does not justify conferring on judges greater protection than those representatives or officials enjoy. It is to be hoped that the High Court will interpret the scope of the implied freedom of communication more broadly than recent decisions might suggest.  If the High Court does not do so, there is a strong case for legislation to bring the principles governing criticism of the Australian judiciary into line with those of other liberal democracies (Sackville, 2005, p. 24).

Despite Justice Sackville’s refreshing perspective reinforcing the recommendations of the ALRC 20 years ago, it seems that in recent years such charges have had somewhat of a resurgence in Australia and, to a lesser extent, in New Zealand.

Whether or not this has resulted in a debilitating ‘chill’ upon media critique of the courts is a moot point, but journalists certainly need to ensure that any criticism of the judiciary and the legal system is carefully phrased and measured so that it does not unfairly imply any wrongdoing that might erode public confidence. Journalists should note that, while some of the media organisations mentioned above escaped contempt charges when they reported the contemptuous statements of others (such as disgruntled fathers on the steps of the Family Court) it is open to the authorities to prosecute both the individuals who make contemptuous comments (at a press conference, for example) and the media outlet that reported the comments, as they did in Solicitor-General v. Smith (2004) in New Zealand. Litaba (2003) noted that while scandalising the court should not be used to protect individual judges against reputational attacks, there were numerous examples where judges seemed to have ‘stood on their personal dignity’. Further, Litaba questioned whether under the existing law truth as a defence applied, despite the High Court’s statements on the matter in Nationwide News Pty Ltd v. Wills (1992), a disturbing possibility given that part of the democratic process should surely be the right to make legitimate, well founded, criticism of the judicial process.

The slim risk of being charged with scandalising the court should not prevent journalists partaking in fair, well-reasoned criticism of the administration of justice. It is only when the criticism is personal, scurrilous abuse of a judge, which brings the judicial system into disrepute, or when it implies some improper motive on the part of the judiciary that it is more likely to overstep the mark. Nevertheless, all in the media would argue that judges and the judicial process should be open to such criticism. This has been even more the case in recent years when judges themselves have spoken about their decisions in public forums. Family Court and High Court justices, particularly, have been vocal on broader policy issues affecting the workings of the justice system. Many welcome such a public profile of the judiciary, but argue that judges cannot adopt such a stance and later hide behind the protections of ancient laws, such as scandalising the court, to punish those who have publicly disagreed with them.

The need for unshackled critique is even more pressing in an era when anti-terrorism laws leave so many court processes open to criticism and when the sentencing of criminals is such a heated political topic.

Media groups, such as Australia’s Right to Know lobby, and the press councils in both countries, should press for greater clarity in the law of scandalising. It would have the advantage of allowing reasoned public criticism of judges and the court system and sound investigative reporting of suspicious judicial practices without fear of reprisal from an irate judge wielding summary powers. Media freedom should not be held to ransom by impudent little men in horsehair, microcosms of conceit and empty-headedness nor, for that matter, by snoring wigs curled up under their judicial sombreros.

 

References

Australian Law Reform Commission (ALRC). (1987). Report no. 35 — contempt,

Australian Government Publishing Service, Canberra. [Electronic version.]

Boshier, P. (2006, August 9). Fair deal for Family Court. Dominion Post, p. 5.

Burrows, J. and & Cheer, U. (2005). Media law in New Zealand. (5th ed.). South Melbourne: Oxford University Press.

Butler, D. & Rodrick, S. (2004). Australian media law. (2nd ed). Sydney: Thomson Law Book Company.

Chesterman, M. (2000) Freedom of speech in Australian law: A delicate plant. Aldershot: Ashgate Dartmouth.

Cheer, U. (2004). New Zealand media law update. Recent developments – defamation, censorship and contempt. Media and Arts Law Review. 9 (3): 237-246.

Lane, B. (2000, March 8). Street protester beats judges at own game. The Australian. p. 14.

Litaba, O. (2003). Does the ‘offence’ of contempt by scandalising the court have a valid place in the law of modern day Australia? [Electronic version]. DeakinLRev 6.

McGarry, A. (2006, 3 August) Jail for Bob the broadcaster? The Australian,

  1. 14.

Pearson, M. (2007). The journalist’s guide to media law. Dealing with legal and ethical issues. (3rd ed.). Allen & Unwin, Sydney.

Porter, L. (2006, December 24). Family Court fights back over bias claims. Sunday Age. P. 6.

Rowan, J. (2007, January 26). Family Court protester avoids conviction. New Zealand Herald.

Sackville, Justice R. (2005). How fragile are the courts? Freedom of speech and criticism of the judiciary. 13th Lucinda Lecture. Monash University, 29 August 2005. Retrieved March 10, 2008, from http://www.wbde.org/documents/2005_Aug_29_Justice_Sackvill_%20Re_Criticism_of_Judiciary.pdf

Weisenhaus, D. (2007). Hong Kong media law. A guide for journalists and media professionals. Hong Kong: HK University Press.

 

Cases cited

Ambard v. Attorney-General of Trinidad and Tobago [1936] AC 322.

Anissa Pty Ltd v. Simon Harry Parsons on application of the Prothonotary of the Supreme Court of Victoria [1999] VSC 430. Retrieved March 10, 2008 from www.austlii.edu.au//cgi-bin/disp.pl/au/cases/vic/VSC/1999/430.html.

Attorney-General v. Namoa [2000] TOSC 13 Retrieved March 10, 2008 from http://www.paclii.org/to/cases/TOSC/2000/13.html.

Attorney-General NSW v. Mundey [1972] 2 NSWLR 887.

Attorney-General for State of Queensland v. Colin Lovitt QC [2003] QSC 279. Retrieved March 10, 2008 from http://www.austlii.edu.au/au/cases/qld/QSC/2003/279.html.

Bell v. Umina Beach Bowling Club Ltd (No 2) [2003] NSWSC

846 Retrieved March 10, 2008 from www.austlii.edu.au/au/cases/nsw/supreme_ct/2003/846.html.

Bridges v. California (1941) 314 US 252.

Chaudhary v Attorney-General [1999] FJCA 23, [17] (Fiji Court of Appeal). Retrieved March 10, 2008 from http://www.paclii.org/fj/cases/FJCA/1999/27.html.

DPP v. Francis & Anor (No. 2) [2006] SASC 261 Retrieved March 10, 2008 from http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/sa/SASC/2006/261.html.

Environment Protection Authority v. Pannowitz [2006] NSWLEC 219 Retrieved March 10, 2008 from http://www.austlii.edu.au/au/cases/nsw/NSWLEC/2006/219.html.

Gallagher v. Durack (1983) 152 CLR 238.

Hoser & Kotabi Pty Ltd v. The Queen (ex parte The Attorney-General for the State of Victoria); The Queen (ex parte The Attorney-General for the State of Victoria) v. Hoser & Kotabi Pty Ltd [2003] VSCA 194 Retrieved March 10, 2008 from http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/vic/VSCA/2003/194.html.

John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164. Retrieved March 10, 2008 from http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCA/2005/164.html.

Mills & Ors v. Townsville City Council & Anor (No. 2) [2003] QPEC 18 Retrieved March 10, 2008 from http://www.austlii.edu.au/au/cases/qld/QPEC/2003/18.html.

Nationwide News Pty Ltd v. Wills (1992) 177 CLR 1.

Popovic v Herald & Weekly Times Ltd and Anor [2002] VSC 174 Retrieved March 10, 2008 from http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VICSC/2002/174.html.

Re South Australian Telecasters Limited (Publication Injunction) [1998] FamCA 117 Retrieved March 10, 2008 from www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/family_ct/1998/117.html

R v. Dunbabin; Ex parte Williams (1935) 53 CLR 419.

R v. Gray [1900] 2 QB 36.

Solicitor-General v. Smith [2004] 2 NZLR 540.

 

© Mark Pearson 2008 & 2017

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.

1 Comment

Filed under national security, terrorism

Final global report on source protection by @julieposetti released by UNESCO

By MARK PEARSON

The final report of the three year global project by Fairfax Media and University of Wollongong colleague Julie Posetti (@julieposetti) comparing international approaches to protecting sources has been released by UNESCO.

As I foreshadowed earlier, the impressive study tracks, assesses and compares protective legal frameworks like shield laws over the 2007-2015 period, and recommends new measures for protection of journalists and their sources.

The report acknowledges the enormous benefits to journalism harnessed from the Internet and Web 2.0 communications, but homes in on the challenges of  the privacy and safety of journalistic sources. Mass surveillance, data retention and expanded national security laws all stand to erode the integrity of the journalist-whistleblower relationship.

The publication is available here.

The Posetti study draws on surveys and long form interviews involving nearly 200 international experts from the fields of law, journalism, digital communications and civil society organisations.

Academics from Australia (Posetti and UoW colleague Marcus O’Donnell), Brazil and China contributed, along with 11 research assistants from a range of countries.

I was honored to serve on the eight-member international advisory panel.

The report’s key recommendations for nations were:

  • Legislate for source protection;
  • Review  national laws on surveillance, anti-terrorism, data retention, and access to telecommunications records;
  • Co-operate with journalists’ and media freedom organisations to produce guidelines for prosecutors and police officers, and training materials for judges on the right of journalists not to disclose their sources;
  • Develop guidelines for public authorities and private service providers concerning the protection of the confidentiality of journalists’ sources in the context of the interception; or disclosure of computer data and traffic data of computer networks; and
  • Apply source protection regimes and defined exceptions in a gender-sensitive way.

Its main recommendations for journalists were:

  • Engage with digital issues impacting on source confidentiality protection, and actively campaign for laws and rules that provide adequate protection;
  • Explain to the public what is at stake in the protection of source confidentiality, especially in the digital age;
  • Ensure that sources are aware of the digital era threats to confidentiality;
  • Consider altering practices – including ‘going back to analogue methods’ when required (recognising this may not always be possible due to international or gender dynamics) – in order to offer a degree of protection to their confidential sources;
  • Help audiences become more secure in their own communications, for example explaining how encryption works, and why it is important not to have communications security compromised;
  • Consider providing technical advice and training to sources to ensure secure communications, with the assistance of NGOs and representative organisations;
  • In the case of media leaders, ensure that they also respect their journalists’ ethical commitment (and in some cases legal obligation) to source confidentiality; and
  • In the case of media owners, ensure that their journalists, and freelancers who contribute investigative reports, have access to the appropriate tools and training needed to ensure that they are able to offer the most secure channels of digital communication possible to their sources.

Related:

© Mark Pearson 2017

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.

Leave a comment

Filed under national security, terrorism

Queensland judicial committee recommends some filming of proceedings and a new court information officer

By MARK PEARSON

A Supreme Court of Queensland committee has recommended a pilot program for the broadcasting of some sentencing remarks and appeal hearings and the appointment of a court information officer.

QldElectronicPubsReportApril2016The Electronic Publication of Court Proceedings: Report – April 2016 was released this month, the result of eight months of deliberations by five Supreme Court justices (chaired by Justice Margaret McMurdo, President of the Court of Appeal), with input from a further two District Court judges.

The report followed the release of an Issues Paper on the topic in June 2015 and the consideration of public submissions, including one from yours truly, which I detailed in an earlier blog.

The latest report reviews practices in other Australian jurisdictions and internationally. It stems from media requests to film the sentencing remarks in the trial of Brett Peter Cowan for the murder of school boy Daniel Morcombe.

No standard procedures existed in Queensland to film sentencing remarks and the court was rare among Australian jurisdictions in that it had no designated information officer to assist in making arrangements. The delay deemed necessary to make suitable arrangements was one of the reasons that the application to film the judge’s sentencing remarks was refused.

As a result of the report’s findings, the courts will develop a pilot program for broadcasting of sentencing remarks and appeal hearings.

The committee noted  that most respondents were concerned about the risk that recording and broadcasting witnesses and others in court would compromise the administration of justice.

As with similar reviews in other countries, the report does not favour broadcasting of witnesses’ evidence. However, the option will remain open for the judge in a particular case to allow the evidence of witnesses to be broadcast, with special consideration given to the position of victims and vulnerable witnesses.

The pilot program will require the development of suitable Practice Directions, logistical arrangements and guidelines to assist the judges and the media. Guidelines will address matters such as the exclusion of certain categories of cases and the location and field of view of cameras.

The decision on whether to allow the recording of sentencing remarks will remain the decision of the presiding judge in each case.

The report also recommends additional ways to better inform and educate the public, including:

  • improved public and media access to court decisions, case summaries and documents to allow fair and accurate reporting; and
  • the appointment of a Court Information Officer to assist the Supreme Court and the District Court in better informing and educating the public about the courts and the justice system.

When appointed, the officer will be responsible for the development of guidelines for the recording and publication of court proceedings, paving the way for the pilot program to start.

My own submission called for the installation of webcams in all courtrooms to allow as much public access to court proceedings as possible so that citizens could ‘virtually’ visit a courtroom just as easily as they might attend physically.

It suggested that, just as all citizens might wander randomly into a public court in session in the Supreme Court building, citizens should be able to tune in online to those same proceedings from the comfort and convenience of a remote location.

My own view is that recording more generally in society has become ubiquitous and that its potential to impact on judges and potential witnesses would be minimal given a. the extent to which people realise their words and behaviour are now being recorded in all walks of life; and b. the fact that wholesale livestreaming of all courts would be accommodated as a basic procedure – just an accepted facet of what is done there.

My submission featured these six hallmarks:

  1. Install inexpensive webcams in all courtrooms showing only the judge in the frame.
  2. Livestream all courtrooms using this single camera angle to a designated court website where citizens can access any courtroom at any time.
  3. Feature the kind of alert light found in radio studios positioned prominently inside and outside the courtroom to light with the sign “Court open and broadcasting”.
  4. Install a similar light and sign at the bench so the judge can control whether the recording is on or off (ie, whether the court is open or closed) and personnel are advised accordingly.
  5. Deal with mainstream media requests for special permission to film proceedings on a case by case basis, with the presiding judge determining the conditions attached to any permissions.
  6. Restrictions: As detailed above, my own view is that there are measures available to the courts to address any misreporting or sensationalised reporting based on the livestreamed material. However, if the court were concerned at the potential for the selective recording and rebroadcasting of any of the material it could feature an on-screen warning “© Supreme Court of Queensland: Not to be recorded or rebroadcast without the permission of the presiding judge”.

In short, this simple and relatively inexpensive solution would dispense with the need for editing because the livestreaming control would rest simply with the judge’s decision on whether to close or open the court for the complete trial (or for a given segment).

It would allow a mechanism for justice to be truly ‘open’ – both in the physical courtroom and in the virtual one – with all the ensuing public benefits of education and allowing justice to be seen to be done.

The committee gave my suggestion due consideration but rejected it on the basis of expense and for tipping the scales too far in favour of open justice over a fair trial and the due administration of justice. The report stated:

“Professor Pearson and others have advocated the introduction of a system whereby proceedings which are held in open court are recorded on webcams that are installed in all courtrooms and live-streamed. A variation on this is for the court to have its own dedicated internet channel for live-streaming.

It may be argued that, with new and relatively inexpensive technology to record and live-stream proceedings, all proceedings should be live-streamed. This simply would enable members of the public to view what would be seen by them if they exercised their right to attend a proceeding in open court. It may be relatively inexpensive to install webcams in most courtrooms showing the judge and to live-stream the images from this single camera angle to a designated court website which citizens can access. However, such a system would not regulate what was to be broadcast. Guidelines and procedures, and judges and court staff in individual cases, would need to address the evidence of witnesses, including vulnerable witnesses, which may be affected by the knowledge that what they say is being broadcast to the world. Any new system would need to control the transmission of certain evidence to the general public, including the identity of victims and children whose identification is subject to statutory prohibitions. It also would need to control the broadcasting of the horrendous details of certain crimes. Monitoring the recording and transmission of evidence under a system which live-streamed all proceedings in all courtrooms would entail a very substantial cost to the community.

Many cases in the superior courts are of no real interest to the general public. Few members of the general public attend them, the media do not report them and it seems unlikely that more than a few members of the general public would wish to view them if they were live-streamed. The resources required to establish a system to record and live-stream all proceedings and to apply appropriate restrictions on what is communicated to the general public cannot be justified in the light of anticipated demand.”

© Mark Pearson 2016

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.

2 Comments

Filed under national security, terrorism

Stay Out Of Jail 101: Phone a spy before breaking a national security scoop

By MARK PEARSON

You have information that police and intelligence agencies are about to launch Australia’s biggest counter-terror operation. Or perhaps they already have.

ASIO headquarters, Canberra. Photo: Maps

ASIO headquarters, Canberra. Photo: Maps

The story could be the biggest scoop of your journalistic career.

Your news instinct might be to rush to publication or broadcast without giving government agencies the chance to shut your story down and without risking the news being leaked to your competitors.

But if your story meets the definition of a “special intelligence operation” under the Australian Security Intelligence Organisation (ASIO) Act 1979 then you could face up to five years in jail for ‘unauthorised’ disclosure of information, and up to 10 years if the disclosure ‘endangers the health or safety’ of anyone or will ‘prejudice the effective conduct of a special intelligence operation’.

Amendments partially exempting ‘outsiders’ (journalists) were proposed in 2016, but grave concerns remained over the impacts on journalists for ‘reckless’ disclosure that might endanger safety and jeopardise an operation and the implications for their sources.

So what might be “reckless” disclosure?

For that, we look to Section 5.4 of the Commonwealth Criminal Code, which reads:

5.4   Recklessness

(2)  A person is reckless with respect to a result if:

(a)  he or she is aware of a substantial risk that the result will occur; and

(b)  having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

When it comes to reckless disclosure, the Australian Law Reform Commission has stated:

“If the offence was framed to cover reckless disclosure, the prosecution would be required to prove that the accused was aware of a substantial risk that disclosure would occur as the result of the accused’s conduct and, having regard to the circumstances known to him or her, it was unjustifiable to take the risk.”

So, whether you view it under the existing Section 35P, or under the proposed reforms the Turnbull Government has agreed to enact, there is a strong argument that the only way to ensure you will not be charged with reckless disclosure is to first phone ASIO.

And that’s exactly the advice I was given when I phoned the ASIO media section and asked an (obviously) anonymous media liaison officer about the spy agency’s policy in dealing with journalists’ queries about whether the breaking news event they were trying to cover was in fact a “special intelligence operation”.

He said ASIO tried to strike a balance between what was appropriate to report and what was inappropriate.

He explained that soon after s35P had been passed in 2014 there had been a number of inquiries from journalists and that his office was not sure whether they were legitimate concerns about whether operations were SIOs or whether it was just “journalists being smart about the new laws”.

He said ASIO’s normal policy was to decline to comment when a media inquiry related to an individual or an operational matter, and that blanket ban made it hard to confirm or deny whether a particular operation was an SIO.

I later sent these specific questions to the officer at media@asio.gov.au:

  1. What steps should journalists take to ascertain whether their story (e.g., terror arrest, investigation, etc) relates to an SIO (special intelligence operation)?
  2. How do you respond to journalists’ inquiries about SIOs when ASIO’s normal practice is not to comment on matters related to individuals or operations?
  3. How many journalists’ inquiries as to whether an operation is an SIO have you had since the legislation was enacted?
  4. How many such inquiries have you had this year?
  5. What steps do you take to prevent/warn journalists about reporting the details of an SIO?
  6. What steps do you take to prevent/warn journalists about revealing the ID of an ASIO officer?
  7. How many instances of either (journalists giving SIO details or naming an officer) have you dealt with, and how have you handled them?

In a reply email, he referred me to ASIO’s responses to questions posed by the acting Independent National Security Legislation Monitor Roger Gyles QC when he was conducting his inquiry into the legislation, publicly released in February 2016.

That submission confirmed the approach the media officer had outlined, stating:

“Media inquiries received by ASIO are managed in accordance with standard operating procedures. To perform its statutory functions, ASIO must employ a conservative approach to media engagement with respect to operational matters. ASIO does not confirm details relating to individuals, investigations or operations as a matter of course. This includes inquiries in relation to special intelligence operations or other operationally sensitive information.

If journalists contact ASIO Media regarding an operational matter they intend to report on, ASIO advises the relevant line-area within the Organisation before responding to the journalist. When ASIO has concerns about the sensitivities around the subject being reported on, ASIO does not provide a public comment, but may decide to speak with the journalist on a confidential basis to provide context on that sensitivity. In this instance, the journalist may be contacted by the Director-General or a Deputy Director-General to explain how Australia’s national security would be prejudiced if the subject was reported on publicly.

All media inquiries, and responses, are logged and retained for accountability and future reference.”

It continued:

“In practice, if a journalist approached ASIO for comment on information they believed to be operationally sensitive, and which ASIO knew to be related to a special intelligence operation, ASIO would consider speaking with the journalist on a confidential basis to explain the sensitivities of the information. A number of considerations would go to determining whether to inform the journalist of the existence of a special intelligence operation, including whether a person might be harmed should the existence of a special intelligence operation be revealed. If, after receiving a confidential briefing by ASIO, the journalist still intended to publish the information, ASIO would advise the journalist that to do so may breach 35P. It would then be for the journalist to decide whether or not to proceed with publishing the information.”

So there you have it, the national spy agency recommends the Ghostbusters approach to journalists wanting to avoid a decade in jail for reckless disclosure of a special intelligence agency: “Who you gonna call? ASIO.”

And we might never know how many journalists have already been tapped on the shoulder and ‘advised’ not to publish.

Related: See my piece from June 22 2015 in The Conversation : How surveillance is wrecking journalist-source confidentiality

© Mark Pearson 2016

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.

Leave a comment

Filed under national security, terrorism

The main national security laws affecting journalists and sources

By MARK PEARSON

[with research assistance from Virginia Leighton-Jackson]

Among more than 50 national security laws and amendments passed in Australia since 9/11, these four stand out as presenting the greatest threat to journalists …

ASIOActScreenshot

  1. ASIO Act 1979

Section 25A focuses on ASIO powers and access to computer networks, with one warrant now covering an entire computer network using third party computers to access target systems.

Section 34 gives ASIO powers to seek ‘questioning’ warrants and ‘questioning and detention’ warrants (detention for up to seven days) with five years’ jail possible for any revelation of the existence of the warrant itself or of any operation related to the warrant for up to two years after the warrant has expired. There are no public interest or media exemptions to the requirement, although disclosures of operational information by anyone other than the subject of a warrant or their lawyer requires the discloser to have shown ‘recklessness’ (s. 34ZS (3)).

Section 35P provides for up to five years in jail for ‘unauthorised’ disclosure of information related to a ‘special intelligence operation’ – and up to 10 years if the disclosure ‘endangers the health or safety’ of anyone or will ‘prejudice the effective conduct of a special intelligence operation’. Amendments partially exempting ‘outsiders’ (journalists) were proposed in 2016, but grave concerns remained over the impacts on journalists for ‘reckless’ disclosure that might endanger safety and jeopardise an operation and the implications for their sources.

Section 92 provides for 10 years’ imprisonment for anyone who identifies an ASIO officer or affiliate (or anyone connected with them) other than any who have been identified in Parliament (such as the director-general). Former ASIO employees and affiliates can be identified if they have consented in writing or have generally made that fact be known.

  1. Crimes Act 1914 (Cth)

Section 3ZQT makes it an offence to disclose the fact that someone has been given notice by the Australian Federal Police (AFP) to produce documents related to a serious terrorism offence. Journalists could face up to two years in prison for doing so.

  1. Telecommunications (Interception and Access) Act 1979

After amendments in 2015, the Act requires telecommunications providers to retain customers’ phone and computer metadata for two years so they can be accessed by criminal law enforcement agencies (State and Commonwealth) on the issue of a warrant. Information required to be stored includes: subscriber/ account information, the source and destination of a communication, the date, time and duration of a communication or connection to a service. A ‘journalist information warrant’ scheme was designed to prohibit the disclosure of journalists’ confidential sources without special precautions. These require approval of the Minister, who may act on the advice of a ‘public interest advocate’, though the processes are secret and disclosure of the details of any warrant for telecommunications data can incur imprisonment for two years.

  1. National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (‘NSI’)

National security has long been cited as one of the exceptions to the principle of open justice, but new laws give judges and magistrates more reason to close a court in a terrorism trial. The NSI Act allows for evidence to be suppressed in court hearings if it contains disclosures prejudicial to national security. Part 3 of the Act allows prosecutors and courts to use national security information in criminal proceedings while preventing the broader disclosure of such information, sometimes even to the defendant. Section 29 gives courts the power to decide whether to close the court for such matters.

Other laws to consider when covering a national security story:

Discrimination and vilification laws

Laws apply at state, territory and Commonwealth levels prohibiting racial and religious discrimination and the vilification of people because of their race, religion, or other factors. They vary in their scope and application, with debate over whether the law against offensive behaviour because of race, colour or national or ethnic origin in Section 18C the Racial Discrimination Act (Clth) would apply to discriminatory media coverage of Muslims. All media codes of practice and ethical codes counsel against discriminatory or vilifying coverage. Social media comment moderation presents special challenges.

Defamation

If you are about to publish something damaging to someone’s reputation, ensure you work carefully within one of the main defences – truth (evidence to prove both the facts and their defamatory meaning), honest opinion / fair comment (based on true provable facts on a matter of legitimate public interest), or fair report (a fair and accurate report of a court case, parliament or another protected public occasion or document).

Contempt of court

The sub judice period (limiting prejudicial coverage about a suspect) starts from the moment someone has been arrested or charged. From that instant you should take legal advice before publishing anything other than what has been stated in open court, with special care to avoid any material giving an assumption of guilt (or even innocence), visual identification of the accused if their identification might be at issue, witness accounts, character background, confessions or prior charges or convictions. You can also face contempt charges over refusing to reveal a source or provide your data or notes when ordered to do so, thus techniques for source protection are paramount.

Suppression orders

Courts have special powers to issue suppression orders in national security cases. These might prohibit identification of certain people, restrict coverage of certain parts of a hearing, or even ban coverage of the total proceedings. Reporters and bloggers have been fined and jailed for breaching such suppression orders.

Sources:

Australian Human Rights Commission 2008, A Human Rights Guide to Australia’s Counter-Terrorism Laws, AHRC, Sydney, <www.humanrights.gov.au/human-rights-guide-australias-counter-terrorism-laws>.

Evershed, N., Safi, M., 19.10.2015, “All of Australia’s National Security Changes since 9/11 in a Timeline”, The Guardian Australia, available: http://www.theguardian.com/australia-news/ng-interactive/2015/oct/19/all-of-australias-national-security-changes-since-911-in-a-timeline

Related: See my piece from June 22 2015 in The Conversation : How surveillance is wrecking journalist-source confidentiality

© Mark Pearson 2016

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.

Leave a comment

Filed under national security, terrorism

Journalist Peter Greste explains why it is important to cover Islam ethically

By MARK PEARSON

Australian journalist Peter Greste – released last year after 400 days in an Egyptian jail – has outlined why it is so important for journalists to be fair and accurate in their coverage of Islam and Muslim communities.

I interviewed Greste for our Reporting Islam project on the eve of him receiving an Honorary Doctorate from Griffith University for his service to journalism and delivering the annual Griffith Lecture at the Queensland Conservatorium in Brisbane last December.

Greste started reporting on the Islamic world in 1995 as Kabul correspondent for the BBC.

“I think it is absolutely vital that journalists anywhere understand as much as they can about Muslims and the Islamic world largely because when we talk about that world we speak about it as if it is in the singular when in fact it isn’t,” Greste said.

“It’s an incredibly complex, multifaceted group of individuals, of sects, of smaller schools of thought.

“The greatest danger is that we conflate everything into one.

“We’ve got to be very careful to understand the subtleties and nuances of the Islamic world and make sure we avoid that same mistake.”

The interview will appear as part of a set of research-based resources colleague Associate Professor Jacqui Ewart and I are developing with our team as part of our Commonwealth-funded Reporting Islam project.

The project is national in its ambit, funded under a competitive grants scheme, facilitated by the Attorney General’s Department and managed by the Queensland Police Service who have contracted us to undertake the work as independent researchers.
Stage 1 of the project was conducted over the 2014-2015 financial year involving a review of the literature on news media coverage of Islam and Muslim people, case studies of media reportage across media types at national and community levels, interviews with experts in the field, distillation of international studies to develop a schema for assessing reportage against world best practice in the area, and a compilation of a report on these findings with recommendations for the development of a suite of resources and training programs.

We are now in Stage 2 of the project (2015-2016) which requires the development and trial of a suite of research-based training and education resources for Australian media practitioners and students to encourage more mindful reporting of Muslims and the Islamic faith.

Credits:

Camera: Ashil Ranpara, Griffith University School of Humanities, Languages and Social Science

Production: Henry Cook, Griffith Learning Futures

Related: See my piece from June 22 2015 in The Conversation : How surveillance is wrecking journalist-source confidentiality; and on journlaw.com from November 13, 2014 titled: International studies point to best practice for reporting Islam and stories involving Muslims.

© Mark Pearson 2016

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.

Leave a comment

Filed under national security, terrorism

Freed journalist Peter Greste gets honorary doctorate then calls for free speech in the age of terror

By MARK PEARSON

The Australian journalist jailed for 400 days in Egypt called for greater freedom for the media during the war on terror after being awarded an honorary doctorate by Griffith University tonight (December 4).

Journalist Peter Greste receives his honorary doctorate at Griffith University

Journalist Peter Greste receives his honorary doctorate at Griffith University

Greste received an Honorary Doctorate from Griffith University for his service to journalism before delivering the annual Griffith Lecture at the Queensland Conservatorium in South Bank Brisbane.

His arrest with Al Jazeera colleagues, Mohamed Fahmy and Baher Mohamed, by Egyptian authorities on false terrorism charges, triggered international demands for their release from 2013 to 2015.

“If I’d known it was this easy to get a doctorate I would have been arrested years ago,” he joked. “It’s a great honour to receive this award. I take it as a mark of recognition, not just for what we went through but also for what it represents…for those 400 days of prison.’

“We fought hard for our own freedom, but I think it’s important that people also see the bigger picture of due process and freedom of speech.

“I’m being recognised more for the things we came to represent, than anything that I’ve done.”

He argued large parts of the media had given up on their public responsibility to keep the public informed with fair and accurate reporting. The war on terror was a battle of ideas and journalists were active participants.

The media should be properly be part of a functioning democracy in its role as the fourth estate, checking the functioning on the other arms of government.

“In the war of terror we seem to be losing sight of that key idea,” he said. “Governments the world over are using that ‘t’ word to clamp down on those freedoms.”

He gave recent examples from other countries of journalists being arrested on trumped-up terror charges just as he and his two colleagues had been in Egypt.

Australians should not feel smug because of legislation introduced in recent years targeting those disclosing special intelligence operations, the Foreign Fighters Bill and metadata retention laws.

These restricted the reporting on important events, the main story of the era about international terrorism, and seriously damaged the confidentiality of journalists’ sources.

“It makes confidential whistleblowing almost impossible without risking a prison term,” he said.

“Each has an effect on journalists being able to do the job the public demands of us.”

However, he criticised news media organisations and journalists for not being proactive enough in fighting the introduction of such laws.

“We the media have become increasingly slack in challenging and questioning governments,” he said.

He said journalists should not accept the rhetoric of governments engaged in the war on terror. Rather, questioning that misuse of language would be “one of the most patriotic things to do”.

“Panicked and hyped up language” played into the hands of Islamic State, he said.

“We the media have a responsibility to uphold our end of the bargain as well.”

He said the #FreeAJStaff hashtag calling for the release of him and his colleagues attracted billions of supporters and indicated a high level of public belief that journalism was fundamental to democracy.

During his 400-day detention in an Egyptian prison he studied international relations with Griffith University.

Greste turned 50 this week. He grew up in Brisbane and has reported on political events all over the world. As a correspondent, between 1991 and 1995, he reported from many locations including London, Bosnia and South Africa where he worked with Reuters, CNN, WTN and the BBC.

Following the September 11, 2001 attacks, he returned to Afghanistan to cover the war there. In 2011, he received a prestigious Peabody Award for his BBC documentary Somalia: Land of Anarchy. In December 2013, his employer Al Jazeera sent him from his base in Nairobi to Cairo to cover the bureau for three weeks. It was then he was arrested. 

In June 2014, after more than six months in Cairo’s infamous Tora Prison, a court found Greste and his colleagues guilty and sentenced them to seven years imprisonment.

Peter Greste with his Griffith lecturers Dr Dan Halvorson and Professor Andrew O'Neill.

Peter Greste with his Griffith lecturers Dr Dan Halvorson and Professor Andrew O’Neill. Photo: Michael Cranfield

He said presenting the Griffith Lecture on December 4 was a way of validating what he and his colleagues went through retrospectively. “It’s a way of applying meaning to what we went through. Those 400 days weren’t wasted.

“I learned a lot about myself in prison but that time has also given me the credibility to talk about those issues around press freedom. I feel a responsibility to talk about these issues, partly because so many of my friends, so many journalists, fought so hard for me, that’s why people backed us.”

While his colleagues Mohamed Fahmy and Baher Mohamed were pardoned by the Egyptian president Abdel Fattah el-Sisi in September, Mr Greste still carries a criminal conviction and an outstanding prison sentence which his legal team is fighting.

Related: See my piece from June 22 2015 in The Conversation : How surveillance is wrecking journalist-source confidentiality

© Mark Pearson 2015

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.

2 Comments

Filed under national security, terrorism