Australian media law [Fifth edition.] 9780455234403, 045523440X

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AUSTRALIAN MEDIA LAW

Thomson Reuters (Professional) Australia Limited 19 Harris Street Pyrmont NSW 2009 Tel: (02) 8587 7000 Fax: (02) 8587 7100 [email protected] www.thomsonreuters.com For all customer inquiries please ring 1300 304 195 (for calls within Australia only) INTERNATIONAL AGENTS & DISTRIBUTORS NORTH AMERICA Thomson Reuters Eagan United States of America

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AUSTRALIAN MEDIA LAW DES BUTLER LLB with First Class Honours (QIT), PhD (QUT) Professor of Law Faculty of Law, Queensland University of Technology

SHARON RODRICK BA (Melb), LLB (Hons) (Melb), LLM (Melb), PhD (Monash) Senior Lecturer of Law Faculty of Law, Monash University

Free Speech chapter

LAWRENCE MCNAMARA B Ec (Hons) (Monash), LLB (Hons), PhD (Sydney) Deputy Director and Senior Research Fellow, Bingham Centre for the Rule of Law Bingham Centre for the Rule of Law

Copyright chapter

JENNIFER IRELAND BA LLB (Syd) LLM (UTS) Grad Dip Leg Prac Lecturer, School of Law University of Western Sydney

FIFTH EDITION

LAWBOOK CO.2015

Published in Sydney by Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 19 Harris Street, Pyrmont, NSW First edition ................................................... Second edition .............................................. Third edition .................................................. Fourth edition ...............................................

1999 2004 2007 2012

National Library of Australia Cataloguing-in-Publication entry Butler, D. A. (Des A.) Australian media law / Des Butler, Sharon Rodrick, Jennifer Ireland, Lawrence McNamara. 5th ed. Includes index. ISBN 9780455234403 (pbk.) Mass media – Law and legislation – Australia. Telecommunications – Law and legislation – Australia. Rodrick, Sharon, author. Ireland, Jenn, author. McNamara, Lawrence, author. 343.94099 © 2015 Thomson Reuters (Professional) Australia Limited This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquiries should be addressed to the publishers. All legislative material herein is reproduced by permission but does not purport to be the official or authorised version. It is subject to Commonwealth of Australia copyright. The Copyright Act 1968 permits certain reproduction and publication of Commonwealth legislation. In particular, s 182A of the Act enables a complete copy to be made by or on behalf of a particular person. For reproduction or publication beyond that permitted by the Act, permission should be sought in writing. Requests should be submitted online at http://www.ag.gov.au/cca, faxed to (02) 6250 5989 or mailed to Commonwealth Copyright Administration, Attorney-General’s Department, Robert Garran Offices, National Circuit, Barton ACT 2600. Editor: Zoe Haynes Product Developer: Lucas Frederick Publisher: Robert Wilson Printed by Ligare Pty Ltd, Riverwood, NSW

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PREFACE Events since the last edition have continued to bring free speech, including its exercise by the media, sharply into focus. In Australia the Abbott Federal Government has been involved in issues concerning free speech on a number of fronts. In the wake of the Federal Court finding that two articles written by the conservative commentator Andrew Bolt amounted to racial vilification, the Federal Attorney-General Senator Brandis defended the “right” of Australians “to be bigots” and the government moved to enact its pre-election promise to amend the Racial Discrimination Act. In the Senator’s view “in a free country people … have rights to say things that other people find offensive or insulting or bigoted.” However, in the face of opposition from the community these plans were later shelved. At the same time the same government has enacted a further raft of anti-terrorism laws that have had the effect of placing further restrictions on reporting by the media. Other developments have including further reports by Law Reform Commissions at both a national and state level that have recommended the enactment of a statutory right to protect personal privacy. Despite a growing personal privacy jurisprudence in countries such as the United Kingdom and New Zealand there remains no sign of any Australian government acting upon such recommendations. The groundswell of public concern in the wake of the News of the World scandal in England, which involved a newspaper committing flagrant invasions of privacy by hacking the telephone voicemail accounts; included a murdered schoolgirl, relatives of deceased British soldiers and victims of the 7/7 London bombings, and which included as its sequela the closure of the newspaper, conviction of some of the participants and an inquiry into the operation of the media, seems to have subsided in this country. Among the many other developments examined in this edition, several are particularly noteworthy. In the sphere of defamation laws, there has been further exploration of the contextual truth defence and the liability of search engines and internet service providers. The High Court has also now resolved the position concerning internet service providers in relation to copyright infringement via their services, while there has been a landmark decision concerning internet service providers disclosing the names of those who engage in such infringements. In the area of confidentiality, more jurisdictions have enacted shield laws for journalists’ sources based on a presumption of nondisclosure. New regimes for suppression orders have also been enacted, while there have been developments regarding whether journalists can use electronic devices to record and disseminate court proceedings. We are grateful to Lucas Frederick of Thomson Reuters for his support and encouragement during the work and Zoe Haynes for her skills in the editorial phase. Des Butler would also like to thank Ivan Ingram and Patricia Escalon and Lawrence McNamara would like to thank Ruaraidgh Fitzpatrick for their research assistance.

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Australian Media Law

For the record, as with previous editions, Des Butler was responsible for Chapters 1, 3, 7 (excluding Journalists’ Sources), 8-11 and 13, Sharon Rodrick was responsible for Chapters 4-6, 7 (Journalists’ Sources) and 14-15 and Lawrence McNamara contributed Chapter 2. For this edition Jennifer Ireland takes over carriage of the copyright chapter, Chapter 12. We welcome her on board. We thank Anne Fitzgerald for her copyright chapters in previous editions. We have endeavoured to state the law as at 1 March 2015, although in a number of instances we have been able to include material of a later date.

PROFESSOR DES BUTLER Brisbane SHARON RODRICK Melbourne July 2015

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Table of Contents Preface ......................................................................................................................................... v Table of Cases ........................................................................................................................... ix Table of Statutes ......................................................................................................................... li Chapter 1. Introduction ............................................................................................................. 1 Chapter 2. Free Speech .......................................................................................................... 5 Chapter 3. Defamation ........................................................................................................... 31 Chapter 4. Reporting Parliament and Elections .................................................................. 155 Chapter 5. Media and Open Justice ................................................................................... 233 Chapter 6. Contempt of Court ............................................................................................. 353 Chapter 7. Confidentiality and Sources of Information ....................................................... 461 Chapter 8. Privacy ................................................................................................................ 523 Chapter 9. Offensive Publications ....................................................................................... 617 Chapter 10. Media and National Security ........................................................................... 677 Chapter 11. Negligence ........................................................................................................ 703 Chapter 12. Copyright .......................................................................................................... 729 Chapter 13. Advertising ........................................................................................................ 755 Chapter 14. Regulation of the Media .................................................................................. 797 Chapter 15. Media Ownership and Control ........................................................................ 949 Index ....................................................................................................................................... 999

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Table of Cases A A v B plc [2003] QB 195; [2002] 2 All ER 545 ................................... 7.60, 8.520, 8.530, 8.940, 8.1040 A v British Broadcasting Corporation (Scotland) [2014] UKSC 25 ............. 5.20, 5.40, 5.50, 5.90, 5.280 A v Hayden (No 2) (1984) 156 CLR 532 ............................................................................... 5.120, 7.330 A v United Kingdom (2002) 36 EHRR 917; [2002] ECHR 811 ............................................. 4.100, 4.180 A-One Accessory Imports v Off Road Imports Pty Ltd (1996) 65 FCR 478 .................................... 12.70 A Former Officer of the Australian Security Intelligence Organisation, Re [1987] VR 875 ............. 5.120 AAA v Associated Newspapers Ltd [2012] EWHC 2103 ..................................................... 8.560, 8.1040 AAA v Associated Newspapers Ltd [2013] EWCA Civ 554 ............................................................... 8.560 ABC v D1; Ex parte The Herald and Weekly Times Ltd [2007] VSC 480 .................... 5.60, 5.90, 5.120 ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 ................................................................ 3.970 ABC-1 v Ring [2014] VSC 5 ............................................................................................................... 5.500 ACCC v Allergy Pathway Pty Ltd (No 2) (2011) 192 FCR 34; [2011] FCA 74 ................................ 3.560 ACCC v Apple Pty Ltd [2012] FCA 646 ........................................................................................... 13.350 ACCC v Channel Seven Brisbane Pty Ltd (2009) 239 CLR 305 ...................................... 3.1450, 13.420 ACCC v Coles Supermarkets Australia Pty Ltd [2014] FCA 634 ........................................ 13.70, 13.120 ACCC v Goldy Motors Pty Ltd (2001) ATPR 41-801 ...................................................................... 13.190 ACCC v Jewellery Group Pty Ltd (No 2) (2013) ATPR ¶42-440 .................................................... 13.370 ACCC v Lovelock Luke Pty Ltd (1997) ATPR 41-594 ....................................................... 13.210, 13.220 ACCC v Marksun Australia Pty Ltd (2011) ATPR 42-363 ............................................................... 13.230 ACCC v Metcash Trading Ltd (2011) 284 ALR 662 ........................................................................ 15.400 ACCC v On Clinic Aust Pty Ltd (1996) 35 IPR 635 ....................................................................... 13.370 ACCC v Signature Security Group Pty Ltd [2003] FCA 3 .............................................................. 13.370 ACCC v Singtel Optus Pty Ltd (No 4) [2011] FCA 761 .................................................................. 13.350 ACCC v TPG Internet Pty Ltd (2013) 304 ALR 186 ..................................... 13.60, 13.80, 13.90, 13.350 ACCC v Target Australia (2001) ATPR 41-840 .................................................................................. 13.70 ACCC v Telstra Corporation Ltd (2000) 96 FCR 317 ....................................................................... 5.730 ACCC v Telstra Corporation Ltd (2004) 208 ALR 459 .................................................................... 13.190 ACCC v Unilever Australia Ltd (1998) ATPR 41-607 ......................................................... 13.210, 13.220 AD v Morrison [2013] NSWSC 625 .................................................................................................... 5.440 AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd (2009) 74 NSWLR 612; [2009] NSWSC 863 ................................................................................................................. 4.80 AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2009] NSWSC 1290 ...................................................................................................................................... 5.60, 5.130 AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 ........................................................................................................... 3.1460, 7.230, 7.240, 7.250 ANN v ABC & XYZ [2006] VSC 348 .................................................................................................. 5.120 ANZ Banking Group Ltd v Richard Ellis (Victoria) Pty Ltd (unreported, Vic Supreme Court, 31 Aug 1993) ........................................................................................................................ 6.80 APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; 219 ALR 403 ...... 2.90, 3.990, 6.780 ASIC v Sigalla (No 4) [2011] NSWSC 62 ............................................................................................ 6.20 AX v Stern [2008] VSC 400 ............................................................................................................... 5.120 AZ v The Age (No 1) [2013] VSC 335 ................................................................................... 11.20, 11.30 Aarons v Moloney [2005] NSWSC 795 .............................................................................................. 5.780 Abernethy v Hutchinson (1824) 3 LJ Ch 209 .................................................................................... 7.240 Abkco Music Inc v Harrisongs Ltd (1983) 722 F 2d 988 ................................................................ 12.280 Abrams v United States 260 US 616 ......................................................................................... 2.50, 2.80 Action on Smoking and Health Ltd v Australian Broadcasting Tribunal (1993) 27 ALD 709 ............................................................................................................................................... 13.470 Adam v Fisher (1914) 30 TLR 288 .................................................................................................... 7.580 ix

Australian Media Law Adam v Ward [1917] AC 309 ............................................................................. 3.860, 3.880, 3.960, 4.40 Addis v Crocker [1961] 1 QB 11 ........................................................................................................ 3.740 Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 ................................................................. 11.20 Advanced Hair Studio Pty Ltd v TVW Enterprises Ltd (1987) 18 FCR 1 ........................ 3.1420, 13.410 Advertiser-News Weekend Publications Co Ltd v Manock (2005) 91 SASR 206 ........................... 3.700 Advertiser Newspapers Ltd v Bunting [2000] SASC 458 .................................................................. 5.470 Advertiser Newspapers Ltd v V [2000] SASC 366 ............................................................................ 5.470 Advertiser Newspapers Pty Ltd v B, RD [2008] SASC 362 ............................................................. 5.470 Advertiser Newspapers Pty Ltd v SA Police [2006] SASC 36 .......................................................... 5.470 Aegean Macedonian Association of Aust v Karagiannakis [1999] NSWADT 130 ................ 9.130, 9.180 Age Co Ltd v Beran [2005] NSWCA 289 .......................................................................................... 3.560 Age Co Ltd v Elliott (2006) 14 VR 375 .................................................................................. 3.20, 3.1360 Age Company Ltd, The v Liu [2013] HCATrans 205 ......................................................................... 7.620 Age Company Ltd, The v Liu [2013] NSWCA 26 ................................ 7.540, 7.570, 7.600, 7.620, 7.630 Age Company Ltd, The v Magistrates’ Court of Victoria [2004] VSC 10 ......................................... 5.170 Ahmed v Macquarie Radio Network (Radio Station 2GB) [2006] NSWADT 89 .............................. 9.220 Ahnee v Director of Public Prosecutions [1999] 2 AC 294 ..... 6.100, 6.810, 6.820, 6.840, 6.890, 6.930, 6.940 Ahnee v Director of Public Prosecutions [1999] 2 AC 322 ............................................................... 6.810 Ainsworth v Hanrahan (1991) 25 NSWLR 155 ........................................................... 5.730, 5.740, 5.770 Akins v Abigroup Ltd (1998) 43 NSWLR 539 ........................................................................ 5.730, 5.780 Aktas v Westpac Banking Corporation Ltd (2010) 241 CLR 79 ....................................................... 3.860 Alcoa of Australia Ltd v Apache Energy Ltd (No 4) [2013] WASC 377 ........................................... 5.760 Aldridge v John Fairfax & Sons Ltd [1984] 2 NSWLR 544 ................................................... 3.20, 3.1340 Alexander v North Eastern Railway Co (1865) 6 B & S 340 ........................................................... 3.670 Allason v Haines [1995] TLR 438 ...................................................................................................... 4.140 Allbeury v Corruption and Crime Commission [2012] WASCA 84 ...................................................... 6.20 Allbutt v General Council of Medical Education and Registration (1889) 23 QBD 400 .................. 3.820 Alliance Craton Explorer Pty Ltd v Quasar Resources Ltd [2010] SASC 266 .......... 8.170, 8.180, 8.270 Allied Mills Industries Pty Ltd v Trade Practices Commission (1981) 34 ALR 105 ......................... 7.330 Allworth v John Fairfax Group Pty Ltd (unreported, ACT Supreme Court, Higgins J, 25 March 1993) ................................................................................................................................. 3.1160 Alma v Nakir [1966] 2 NSWR 396 .......................................................................................... 8.830, 8.870 Alterskye v Scott [1948] 1 All ER 469 ............................................................................................... 5.730 Amalgamated Television Services Pty Ltd v Foxtel Digital Cable Television Pty Ltd (1996) 136 ALR 319 ...................................................................................................................... 14.50 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 ........ 3.100, 3.120, 3.190, 9.50 Amalgamated Television Services Pty Ltd v Marsden (2001) 122 A Crim R 166 ........................... 7.490 Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 ......... 3.990, 3.1000, 3.1040, 3.1080 Amann Aviation Pty Ltd v Commonwealth (1988) 19 FCR 223 ......................... 3.730, 4.80, 4.90, 4.170 Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322 ............... 5.20, 6.820, 6.830, 6.890 Ambridge Investments Pty Ltd (in liq) (recvr app’td) v Baker (No 3) [2010] VSC 545 ........ 5.730, 5.780 American Booksellers Association v Hudnut 771 F 2d 323 (7th Cir .................................................. 2.80 American Cyanamid Co v Ethicon Ltd [1975] AC 396 ...................................................................... 7.410 An Inquiry under the Company Securities (Insider Dealing) Act 1985, Re [1988] 1 AC 660 ................................................................................................................................................. 7.510 Anchor Mortlock, Murray & Wolley Ltd v Hooker Homes Pty Ltd [1971] 2 NSWLR 278 ............. 12.200 Andreae v Selfridge & Co Ltd [1937] 3 All ER 255 ............................................................... 8.810, 8.860 Andrew Dunn and The Morning Bulletin Ltd, Re [1932] St R Qd 1 ................................................... 5.30 Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 ........................................................... 3.1340 Andrews v Television New Zealand Ltd [2009] 1 NZLR 220 .............................................. 8.610, 8.1040 Ange v Fairfax Media Publications Pty Ltd [2011] NSWSC 204 ...................................................... 3.710 Anissa Pty Ltd v Parsons [1999] VSC 430 ................................................................... 6.90, 6.820, 6.880 x

Table of Cases Annand & Thompson Pty Ltd v Trade Practices Commission (1979) 40 FLR 165 .......... 13.70, 13.140, 13.370 Annetts v McCann (1990) 170 CLR 596 ............................................................................................. 6.40 Anon 2 v XYZ [2008] VSC 466 ......................................................................... 5.50, 5.120, 5.280, 5.670 Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54 .................. 2.90 Application by Chief Commissioner of Police (Vic), Re (2005) 214 ALR 422 ............. 5.40, 5.330, 5.530 Application by Chief Commissioner of Police (Vic) for Leave to Appeal, Re (2004) 9 VR 275 ............................................................................................................................ 5.10, 5.170, 5.330 Application for an Authorization, Re (1984) 14 DLR (4th) 546 ......................................................... 8.320 Application of Cojuangco, Re (1986) 4 NSWLR 513 ........................................................................ 7.610 Application of Cojuangco (No 2) (unreported, NSW Supreme Court, Hunt J, 6 January 1989) ................................................................................................................................... 7.600, 7.610 Aqua Vital Australia Ltd v Swan Television & Radio Broadcasters Pty Ltd (1995) Aust Torts Reports 81-364 ..................................................................................................................... 3.190 Argyll v Argyll [1967] 1 Ch 302 ................................................................................................. 7.60, 7.420 Armstrong v Budd (1969) 71 SR (NSW) 386 ......................................................................... 4.230, 4.250 Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 ........................................................ 5.80 Ashby v Commonwealth of Australia (No 2) [2012] FCA 766 ............................................... 7.670, 7.680 Ashton v Pratt [2011] NSWSC 1092 ......................................................................................... 5.60, 5.440 Ashworth Hospital Authority v MGN Ltd [2001] 1 All ER 991; [2002] UKHL 29 .............................. 7.660 Ashworth Security Hospital v MGN Ltd [2002] 4 All ER 193 ............................................................ 7.590 Astley v Austrust Ltd (1999) 197 CLR 1 ............................................................................................ 11.40 Atkins v Mays [1974] 2 NZLR 459 ..................................................................................................... 3.740 Attorney-General (NSW) v Bailey [1917] SR (NSW) 170 ................................................................. 6.830 Attorney-General (NSW) v Dean (1990) 20 NSWLR 650 ......... 6.70, 6.140, 6.150, 6.220, 6.460, 6.700, 6.960 Attorney-General (NSW) v John Fairfax & Sons Ltd (1980) 1 NSWLR 362 ........... 6.100, 6.140, 6.220, 6.230, 6.450, 6.660 Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 ........... 6.100, 6.140, 6.220, 6.230, 6.260, 6.280, 6.650, 6.680, 6.690, 6.760 Attorney-General (NSW) v John Fairfax Publications Pty Ltd [1999] NSWSC 318 ............ 6.240, 6.660, 6.750 Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 ..... 5.60, 5.100, 5.150, 5.160, 5.310, 5.340, 5.370, 5.380, 7.490 Attorney-General (NSW) v Mirror Newspapers Ltd [1962] SR (NSW) 421 ...................................... 6.610 Attorney-General (NSW) v Mirror Newspapers Ltd [1980] 1 NSWLR 374 ....... 6.40, 6.50, 6.260, 6.560, 6.600, 6.960 Attorney-General (NSW) v Mundey [1972] 2 NSWLR 887 ......... 6.40, 6.70, 6.270, 6.650, 6.820, 6.830, 6.840, 6.890, 6.910, 6.930 Attorney-General (NSW) v Nationwide News Pty Ltd (2007) 73 NSWLR 635 ....................... 5.60, 5.170 Attorney-General (NSW) v Radio 2UE Sydney Pty Ltd [1997] NSWSC 487 ....................... 6.140, 6.300 Attorney-General (NSW) v Radio 2UE Sydney Pty Ltd [1998] NSWSC 28 ................ 6.70, 6.950, 6.960 Attorney-General (NSW) v Radio 2UE Sydney Pty Ltd (unreported, NSW Court of Appeal, Priestley, Clarke and Handley JJA, 19 March 1993) ..................................................... 6.960 Attorney-General (NSW) v Radio 2UE Sydney Pty Ltd (unreported, NSW Court of Appeal, Priestley, Meagher and Powell JJA, 16 October 1997) ................................................. 6.230 Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368 ........ 6.70, 6.150, 6.180, 6.220, 6.230, 6.450, 6.460, 6.610, 6.650, 6.700, 6.750 Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) 5 BR 10 ........ 6.90, 6.140, 6.690, 6.750, 6.950 Attorney-General (NSW) v Time Inc Magazine Co Pty Ltd (unreported, NSW Court of Appeal, Kirby P, Handley and Sheller JJA, 7 June 1994) ........................ 6.610, 6.630, 6.780, 6.950 Attorney-General (NSW) v Time Inc Magazine Co Pty Ltd (unreported, NSW Court of Appeal, Gleeson CJ, Sheller and Cole JJA, 15 September 1994) .......... 6.220, 6.610, 6.630, 6.780 Attorney-General (NSW) v Time Inc Magazine Co Pty Ltd (unreported, NSW Court of Appeal, Gleeson CJ, Sheller and Cole JJA, 21 October 1994) .................................................. 6.960 xi

Australian Media Law Attorney-General (NSW) v Time Inc Magazine Co Pty Ltd (unreported, NSW Court of Appeal, Kirby P, Handley and Sheller JJA, 7 June 1994) (interlocutory injunction); (unreported, NSW Court of Appeal, Gleeson CJ, Sheller and Cole JJA, 15 September 1994) (full hearing); (unreported, NSWs Court of Appeal, Gleeson CJ, Sheller and Cole JJA, 21 October 1994) ..................................................................................... 6.620 Attorney-General (NSW), Ex parte; Re Truth & Sportsman Ltd [1961] SR (NSW) 484 .................. 6.180 Attorney-General (NSW) v Willesee [1980] 2 NSWLR 143 ....... 6.70, 6.480, 6.660, 6.690, 6.720, 6.960 Attorney-General (NSW) v X (2000) 49 NSWLR 653 ............................................................ 6.730, 6.750 Attorney-General (NZ) and Gow v Lee [2012] NZLR 713 ................................................................ 4.150 Attorney-General (NZ) v Noonan [1956] NZLR 1021 ........................................................................ 6.610 Attorney-General (NZ) v Tonks [1939] NZLR 533 ............................................................................. 6.270 Attorney-General (Qld) v Lovitt [2003] QSC 279 .......................................................... 6.70, 6.820, 6.880 Attorney-General (Qld v Twelfth Night Theatre [1969] Qd R 319 ..................................................... 9.560 Attorney-General (Qld) v WIN Television Qld Pty Ltd [2003] QSC 157 ........ 6.100, 6.150, 6.180, 6.300, 6.760, 6.950, 6.960 Attorney-General (SA) v Huber (1971) 2 SASR 142 ......................................................................... 9.570 Attorney-General (SA) v Kernahan (1981) 28 SASR 313 ................................................................. 5.470 Attorney-General (SA) v Nationwide News Pty Ltd (1986) 43 SASR 374 ....................................... 6.140 Attorney-General (UK) v Associated Newspapers Ltd [2011] EWHC 418 ................. 6.395, 6.610, 6.790 Attorney-General (UK) v British Broadcasting Corporation [1981] AC 303 ................ 6.110, 6.260, 6.950 Attorney-General (UK) v Clough [1963] 1 QB 773 ................................................................ 7.510, 7.530 Attorney-General (UK) v Dallas [2012] EWHC 156 ........................................................................... 6.800 Attorney-General (UK) v Fraill [2011] EWCA Crim 1570 ................................................................... 6.800 Attorney-General (UK) v Guardian Newspapers Ltd (No 2) [1990] 3 WLR 776; 1 AC 109 ............. 5.30, 7.80, 7.100, 7.230, 7.260, 7.360, 7.440, 8.530, 8.960 Attorney-General (UK) v Guardian Newspapers Ltd [1999] EMLR 904 ........................................... 6.230 Attorney-General (UK) v Heinemann Publishers Aust Pty Ltd (1987) 10 NSWLR 86 ............ 7.50, 7.80, 7.100, 7.260, 7.280, 7.360 Attorney-General (UK) v Heinemann Publishers Aust Pty Ltd (1988) 165 CLR 30 ......................... 7.100 Attorney-General (UK) v Hislop [1991] 1 QB 514; 2 WLR 219 ........................................................ 6.540 Attorney-General (UK) v Jonathan Cape Ltd [1976] QB 752; [1975] 3 WLR 606 ........ 7.60, 7.70, 7.280 Attorney-General (UK) v Leveller Magazine Ltd [1979] AC 440 ..... 5.10, 5.20, 5.50, 5.90, 5.120, 5.160, 5.280, 5.340, 5.360, 5.370, 6.20 Attorney-General (UK) v MGN Ltd [1997] 1 All ER 456 ............................................ 6.230, 6.280, 6.690 Attorney-General (UK) v Mulholland [1963] 2 QB 477 ............................................... 7.510, 7.530, 7.580 Attorney-General (UK) v New Statesman and Nation Publishing Co Ltd [1981] QB 1; [1980] 2 WLR 246 ......................................................................................................................... 5.820 Attorney-General (UK) v News Group Newspapers Ltd [1987] QB 1 .............. 6.90, 6.280, 6.680, 6.690 Attorney-General (UK) v Newspaper Publishing plc [1997] 3 All ER 159; 1 WLR 926 ....... 7.470, 7.480 Attorney-General (UK) v Punch Ltd [2003] 1 AC 1046 ..................................................................... 7.460 Attorney-General (UK) v PYA Quarries [1957] 2 QB 169 ................................................................. 8.840 Attorney-General (UK) v Random House Group Ltd [2009] EWHC 1727 ....................................... 6.950 Attorney-General (UK) v Times Newspapers Ltd [1973] QB 710 ..................................................... 6.210 Attorney-General (UK) v Times Newspapers Ltd [1974] AC 273 ......... 6.90, 6.210, 6.250, 6.260, 6.510, 6.520, 6.540, 6.770, 6.950 Attorney-General (UK) v Times Newspapers Ltd [1992] 1 AC 191 .................................................. 7.450 Attorney-General of Ceylon v de Livera [1963] AC 103 .................................................................... 4.150 Attwood v Chapman [1914] 3 KB 275 ............................................................................................... 3.740 Auld, Ex parte; Re Consolidated Press Ltd [1936] SR (NSW) 596 ................................................. 6.610 Austereo Ltd v Trade Practices Commission (1993) 41 FCR 1 ..................................................... 15.380 Austin v Mirror Newspapers Ltd [1984] 2 NSWLR 383 .................................................................. 3.1070 Austin v Mirror Newspapers Ltd [1986] AC 299 ..................................................... 3.860, 3.1060, 3.1080 Australand Holdings Ltd v Transparency & Accountability Council Inc [2008] NSWSC 669 ............................................................................................................................................... 3.1460 Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 ............................................................................................................................................. 6.20 xii

Table of Cases Australian Broadcasting Authority v Star Broadcasting Network Pty Ltd [2004] FCAFC 168 ............................................................................................................................................... 14.810 Australian Broadcasting Commission v Comalco (1986) 12 FCR 510 ........................................... 3.1320 Australian Broadcasting Commission v Parish (1980) 43 FLR 129; 29 ALR 228 ....... 5.60, 5.90, 5.240, 5.250 Australian Broadcasting Corporation v Chatterton (1986) 46 SASR 1 ............ 3.730, 4.80, 4.100, 4.140, 4.150 Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510 .... 3.800, 3.860, 3.870, 3.960, 3.1170, 3.1340 Australian Broadcasting Corporation v Hanson (unreported, Qld Court of Appeal, 28 September 1998) ........................................................................... 3.170, 3.210, 3.270, 3.990, 3.1370 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 .... 2.90, 7.60, 8.440, 8.530, 8.650, 8.760, 8.920, 8.940, 8.990, 8.1000, 8.1020, 8.1030, 8.1160 Australian Broadcasting Corporation v Local Court of NSW [2014] NSWSC 239 .............. 5.100, 5.290, 5.420, 6.790 Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 430 ....................................... 3.1360 Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 ................................................ 3.1370 Australian Broadcasting Corporation v Reading [2004] NSWCA 411 ............................................... 3.160 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 ........................................................ 14.30 Australian Capital Television Pty Ltd v Commonwealth (No 2) (1992) 177 CLR 106 ........... 2.90, 2.100, 3.970, 4.600 Australian Communications and Media Authority v Radio Station 2UE Sydney Pty Ltd (2009) 178 FCR 199; [2009] FCA 754 ........................................................................... 14.30, 14.840 Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7 ............................................................................................................................. 14.740, 14.840 Australian Communist Party v Commonwealth (1951) 83 CLR 1 ....................................................... 2.80 Australian Conservation Foundation Inc v Commonwealth (1980) 28 ALR 257 .............................. 9.280 Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 .................................................... 6.20 Australian Football League v The Age Company Ltd (2006) 15 VR 419; [2006] VSC 308 ............. 7.50, 7.60, 7.110, 7.170, 7.180, 7.190, 7.330, 7.360 Australian Football League v The Age Company Ltd (No 2) [2006] VSC 326 .................................. 7.50 Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd (1983) 47 ALR 497 ............... 13.410 Australian Olympic Committee v Big Fights Inc [1999] FCA 1042 ................................................... 5.650 Australian Securities and Investments Commission v Rich (2001) 51 NSWLR 643; [2001] NSWSC 496 ............................................................................................................ 5.670, 5.675 Australian Securities and Investments Commission v Rich [2002] NSWSC 198 ................. 5.670, 5.675 Axel Springer AG v Germany [2012] EMLR 15 ................................................................................. 8.570

B B v Attorney-General (UK) [1965] 3 All ER 253 .................................................................................. 5.80 B, RD v Channel Seven Adelaide Pty Ltd [2008] SASC 282 ........................................................... 5.470 BK v ADB [2003] VSC 129 ................................................................................................................. 5.120 BUSB v The Queen (2011) 248 FLR 368; 80 NSWLR 170 ...................................... 5.100, 5.240, 5.280 Bacich v Australian Broadcasting Corporation (1992) 29 NSWLR 1 ......................... 7.330, 7.400, 7.410 Badry v Director of Public Prosecutions (Mauritius) [1983] 2 AC 297 ............................................... 6.50 Baigent v Random House Group Ltd [2007] All ER (D) 456 (Mar); (2007) 72 IPR 195 ................. 12.20 Bailey v Hinch [1989] VR 78 .............................................................................................................. 5.570 Ballina Shire Council v Ringland (1994) 33 NSWLR 680 ....................................................... 1.10, 3.540 Baltinos v Australian Consolidated Press Ltd (unreported, NSW Supreme Court, Scully J, 21 July 1995) ............................................................................................................................. 3.990 Baltinos v Australian Consolidated Press Ltd (unreported, NSW Supreme Court, Studdert J, 14 July 1989) ........................................................................................................................... 3.1080 Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 ............................. 3.350, 3.360 Bank Mellat v Her Majesty’s Treasury (No 1) [2013] UKSC 38 ................................................ 5.60, 5.90 Bank of Crete SA v Koskotas (No 2) [1993] 1 All ER 748 ............................................................... 8.940 xiii

Australian Media Law Bankstown City Radio Co-operative Ltd v Australian Communications and Media Authority [2007] FCA 2053 .......................................................................................................... 14.820 Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 .......................................................... 11.20 Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 ......... 3.320, 3.1060, 3.1070, 3.1080 Barbaro v Amalgamated Television Services Pty Ltd (1990) 20 NSWLR 493 ............................... 3.1080 Barker v The Queen (1983) 153 CLR 338 ........................................................................................ 8.680 Barnes v Commonwealth (1937) 37 SR (NSW) 511 ....................................................................... 11.240 Barrow v Bolt [2014] VSC 599 .................................................................................. 3.580, 3.860, 3.1280 Barrow v Bolt [2015] VSCA 107 ........................................................................................... 3.860, 3.1280 Barton v Croner Trading Pty Ltd (1984) 3 FCR 95; 54 ALR 541 ....................................... 13.40, 13.230 Barton v Gary Lai (1994) ATPR 40-495 ........................................................................................... 13.210 Barton v Taylor (1886) 11 App Cas 197 ............................................................................................ 4.230 Bashford v Information Australia Pty Ltd (2004) 218 CLR 366 ...................................................... 3.1040 Bass v TCN Channel Nine Pty Ltd (2003) 60 NSWLR 251 .................................................. 3.920, 3.960 Bateman v Fairfax Media Publications Pty Ltd [2014] NSWSC 400 ................................................ 7.580 Bates & Partners Pty Ltd v Law Book Company Ltd (1994) 29 IPR 11 .......................................... 7.230 Bathurst City Council v Saban (1985) 2 NSWLR 704 ...................................................................... 8.710 Bauskis v Adams [2007] NSWCA 293 ............................................................................................... 6.100 Beauharnais v Illinois 343 US 250 (1952) ........................................................................................... 2.80 Beck v Porter (1980) 26 SASR 129 ................................................................................................... 4.620 Becker v City of Onkaparinga (2010) 108 SASR 163; [2010] SASCFC 41 ....................................... 2.90 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 ...................................... 3.1370 Beechwood Homes (NSW) Pty Ltd v Camenzuli [2010] NSWSC 521 ........................................... 3.1460 Beitzel v Crabb [1992] 2 VR 121 ..................................................................... 3.730, 4.100, 4.120, 4.150 Bell v Stewart (1920) 28 CLR 419 ................................ 6.140, 6.230, 6.260, 6.810, 6.820, 6.870, 6.880 Bell v Umina Beach Bowling Club Ltd [2003] NSWSC 846 ............................................................. 6.890 Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 ....................... 3.880, 3.960, 3.1160 Beloff v Pressdram Ltd [1973] 1 All ER 241 ..................................................................................... 7.330 Benchmark Building Supplies Ltd v Mitre 10 (New Zealand) Ltd [2004] 1 NZLR 26 .................... 12.190 Bennett v Minister of Community Welfare (1992) 176 CLR 408 ...................................................... 11.90 Bennette v Cohen (2005) 64 NSWLR 81 .......................................................................................... 3.210 Bernstein v Skyviews and General Ltd [1978] 1 QB 479 ...................................................... 8.720, 8.850 Berryman v Solicitor-General [2005] 3 NZLR 121 ............................................................................. 5.760 Besser v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174 ............................ 3.700, 3.710, 3.1360 Bhagat v Global Custodians Ltd [2002] NSWCA 160 ............................................................ 6.530, 6.550 Bibby v Bulk Carriers Ltd v Cansulex Ltd [1989] QB 155 ................................................................ 5.780 Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 .................................................. 3.1330, 3.1340 Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679 ......................................................................... 3.450 Bills v Brown [1974] Tas SR 117 ........................................................................................................ 9.560 Birmingham v Fodor’s Travel Publications Inc 833 P 2d 70 (Haw 1992) ...................................... 11.280 Bissett v Deputy State Coroner [2011] NSWSC 1182 ........................................................... 5.420, 5.440 Bjelke-Petersen v Warburton [1987] 2 Qd R 465 ....................................................... 3.320, 3.410, 3.430 Blackie & Sons Ltd v Lothian Book Publishing Co Pty Ltd (1921) 29 CLR 396 ............................. 12.70 Blackshaw v Lord [1984] QB 1 ............................................................................................... 3.940, 3.960 Blanch v Deputy Commissioner of Taxation [2004] NSWCA 461 ..................................................... 5.730 Bleyer v Google Inc LLC (2014) 311 ALR 529 ............................................... 3.40, 3.560, 3.1270, 6.160 Bond v Barry [2007] ATPR 42-187 ..................................................................................... 3.1420, 3.1450 Bond v West Australian Newspapers Ltd (No 2) [2008] WASC 249 ................................................ 7.580 Bonnard v Perryman [1891] 2 Ch 269 ............................................................................................. 3.1370 Boral Resources (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] VSC 429 ...................................................................................................................................... 8.1030 Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369 ........... 3.340, 3.520, 3.710, 3.1460 Boucher v The King [1951] 2 DLR 369 ............................................................................................. 10.40 Bourns Inc v Raychem Corp [1999] 3 All ER 154 ............................................................................ 5.730 xiv

Table of Cases Bourns Inc v Raychem Corp [1999] 1 All ER 908 ............................................................................ 5.760 Bowen-Rowlands v Argus Press Ltd (1926) ...................................................................................... 3.880 Bowin Designs Pty Ltd v Australian Consumers Association (unreported, Federal Court, Lindgren J, 6 December 1996) ..................................................................................................... 3.940 Bowman v Secular Society Ltd [1917] AC 406 ................................................................................. 9.390 Boyd v Angus & Robertson Ltd (1946) 63 WN (NSW) 189 ............................................................. 9.570 Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 ............................................. 3.150, 3.160, 3.1160 Bradbury v Staines; Ex Parte Staines [1970] Qd R 76 .................................................................... 9.540 Bradlaugh v Gosset (1884) 12 QBD 271 ............................................................................................. 4.20 Bradley v Wingnut Films Ltd [1993] 1 NZLR 415 ............................................................................. 8.600 Brandenburg v Ohio 395 US 444 (1969) ...................................................................... 2.80, 10.40, 11.40 Brander v Ryan (2000) 78 SASR 234 ...................................................................... 3.140, 3.990, 3.1000 Braun v Soldier of Fortune 968 F 2d 1110 (11th Cir 1992) ............................................................ 11.310 Bravehearts Inc v County Court of Victoria (2010) 29 VR 421 ........................................................ 5.250 Bread Manufacturers Ltd, Ex parte; Re Truth & Sportsman Ltd [1937] 37 SR (NSW) 242 .......... 6.140, 6.370, 6.710 Brent Walker Group Plc v Time Out Ltd [1991] 2 QB 33 ............................................................... 3.1170 Bridges v California 314 US 252 (1941) ............................................................................................ 6.940 Briggs v Lunt (No 4) [2011] WASCA 145 ............................................................................................ 6.20 British American Tobacco Australia Ltd v Secretary, Department Of Health And Ageing (2011) 281 ALR 75 ........................................................................................................................ 4.160 British American Tobacco Australia Services Ltd v Cowell (2003) 8 VR 571; [2003] VSCA 43 .......................................................................................... 5.500, 5.730, 5.750, 5.770, 5.780 British American Tobacco Australia Services Ltd v John Fairfax Publications [2006] NSWSC 1197 ................................................................................................................................. 7.410 British Broadcasting Corporation v Harpercollins Publishers Ltd [2010] EWHC 2424 ........... 7.80, 7.230 British Railway Traffic & Electric Co Ltd v CRC Co Ltd & London County Council [1922] 2 KB 260 ...................................................................................................................................... 3.1460 British Railways Board v Pickin [1974] AC 765 ................................................................................... 4.80 British Steel Corporation v Granada Television Ltd [1981] AC 1096 ............ 7.240, 7.330, 7.360, 7.580, 7.590, 7.600, 8.1050 Broad Construction Services (WA) Pty Ltd v The Construction, Forestry, Mining and Energy Union of Workers [2007] WASC 133 ............................................................................... 5.670 Broadcasting Corporation of New Zealand v Attorney General [1982] 1 NZLR 120 ......................... 5.20 Broadway Approvals v Odhams Press [1964] 2 QB 683 ................................................................ 3.1240 Broken Hill Proprietary Company Ltd v Dagi [1996] 2 VR 117 .......................................................... 6.20 Bromfield, Re; Ex parte West Australian Newspapers Ltd (1991) 6 WAR 153 ....... 5.160, 5.170, 5.310, 5.340 Bropho v Human Rights and Equal Opportunity Commission (2004) 204 ALR 761 ........... 9.240, 9.300, 9.320, 9.490, 10.90 Brown v Attorney-General [2006] NZAR 552 ......................................................................... 8.600, 8.610 Brown v Classification Review Board (1997) 145 ALR 464 ................................... 9.650, 10.240, 10.270 Brown v John Fairfax & Sons Ltd (unreported, NSW Supreme Court, Hunt J, 13 July 1988) .............................................................................................................................................. 3.280 Brown v Members of the Classification Review Board of the Office of Film & Literature Classification (1998) 82 FCR 225; 154 ALR 67 ....................................................... 1.10, 2.90, 3.990 Brown v Palmer [2008] VSC 335 ....................................................................................................... 8.370 Browne v Associated Newspapers Ltd [2008] QB 103 ..................................................................... 8.560 Browne v Dunn (1893) 6 R 67 ......................................................................................................... 3.1460 Bryant v Queensland Newspapers Pty Ltd [1997] HREOC 23 ............................................... 9.80, 9.180 Brych v Herald and Weekly Times Ltd [1978] VR 727 ..................................................................... 6.680 Bryl v Nowra and Melbourne Theatre Company (1999) EOC 93-022 ........... 9.240, 9.290, 9.300, 9.320 Buchanan v Jennings [2002] 3 NZLR 145 ............................................................................. 4.120, 4.130 Buchanan, Re (1964) 65 SR (NSW) 9 ................................................................................... 7.510, 7.530 Buckley v Wathen [1973] VR 511 ...................................................................................................... 9.570 Buddhist Society of Western Australia Inc v Bristile Ltd [2000] WASCA 210 .................................. 3.440 xv

Australian Media Law Bulun Bulun v R & T Textiles Pty Ltd (1998) 86 FCR 244 ............................................................ 12.180 Bunny Industries Ltd v FSW Enterprises Pty Ltd [1982] Qd R 712 ............................................... 15.260 Bunt v Tilley [2006] EWHC 407; [2007] 1 WLR 1243 ........................................................... 3.560, 6.160 Burchett v Kane [1980] 2 NSWLR 266(n) ......................................................................................... 3.840 Burdett v Abbot (1811) 14 East 1; 104 ER 501 ..................................................................... 4.210, 4.220 Burge v Swarbrick (2007) 232 CLR 336 ............................................................................................ 12.90 Burns v Dye [2002] NSWADT 32 ......................................................................................................... 9.90 Burns v Laws [2008] NSWADTAP 32 ..................................................................................... 9.490, 9.520 Burns v Laws (No 2) [2007] NSWADT 47 ................................................................................ 9.90, 9.130 Burns v Radio 2UE Sydney Pty Ltd [2004] NSWADT 267 ..................................................... 9.90, 9.360 Burns v Ransley (1949) 79 CLR 101 ..................................................................................... 10.40, 10.60 Burrell v The Queen [2007] NSWCCA 65 ......................................................................................... 5.820 Burton v Harris [1979] Qd R 548 ......................................................................................................... 6.80 Burton v Parker [1998] TASSC 104 ................................................................................................. 3.1550 Buswell v Carles (No 2) [2013] WASC 54 .................................................................. 5.670, 5.730, 5.770 Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 .............................................. 13.40, 13.80 Butler v John Fairfax Group Pty Ltd (unreported, NSW Supreme Court, Levine J, 25 May 1994) ............................................................................................................... 3.130, 3.280, 3.440 Byers v Edmondson 826 So 2d 551 (2002) .................................................................................... 11.300 Byrne v Deane [1937] 1 KB 818 ................................................................................. 3.180, 3.560, 6.160 Byrnes v Barry [2003] ACTSC 54 .................................................................................................... 3.1550

C C v Holland [2012] NZHC 2155; [2012] 3 NZLR 672 ................................. 8.610, 8.620, 8.1030, 8.1040 C v L [2005] SASC 315 .................................................................................................................... 3.1150 CCOM Pty Ltd v Jiejing Pty Ltd (1992) 36 FCR 524 ............................................................ 7.450, 7.490 CD and MQ v Medical Practitioners Board of Victoria (1996) 11 VAR 175 ..................................... 5.160 CDE v MGN Ltd [2010] EWHC 3308 ................................................................................................. 8.560 CTB v News Group Newspapers Ltd [2011] EWHC 1232 ........................... 7.410, 7.490, 8.550, 8.1030 CTB v News Group Newspapers Ltd [2011] EWHC 1326 .................................................. 7.490, 8.1040 Cabassi v Vila (1940) 64 CLR 130 .................................................................................................... 3.740 Caccavo v Daft [2006] TASSC 36 ...................................................................................................... 3.700 Cain v Glass (No 2) (1985) 3 NSWLR 230 ....................................................................................... 5.120 Calwell v Ipec Australia Ltd (1975) 135 CLR 321 ......................................... 3.490, 3.960, 3.1090, 8.270 Cambridge University Press v University Tutorial Press Ltd (1928) 45 RPC 335 ......................... 12.100 Camelot Group plc v Centaur Communications Ltd [1999] QB 124 ................................................ 7.660 Cameron v Becker (1995) 64 SASR 238 .......................................................................................... 4.620 Campbell v Associated Newspapers Ltd (1948) 48 SR (NSW) 301 ................................................ 3.790 Campbell v MGN Ltd [2004] 2 AC 457 ....................................................... 8.530, 8.570, 8.1040, 8.1050 Campbell v Mirror Group Newspapers Ltd [2003] 1 All ER 224 ............................................. 7.60, 8.940 Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45 .................................. 13.70 Camporese v Parton (1983) 150 DLR (3d) 208 ..................................................................... 3.940, 3.950 CanWest Global Communications Corporation v Australian Broadcasting Authority (1997) 71 FCR 485; 147 ALR 539 ........................................................................................... 15.220, 15.260 CanWest Global Communications Corporation v Australian Broadcasting Authority (1998) 82 FCR 46; 153 ALR 47 ............................................................................................................. 15.220 CanWest Global Communications Corporation v Treasurer of the Commonwealth of Australia (1997) 147 ALR 509 .................................................................................................... 15.510 Canada (House of Commons) v Vaid [2005] 1 SCR 667 ................................................................. 4.230 Canny Gabriel Castle Jackson Advertising Pty Ltd v Volume Sales (Finance) Pty Ltd (1974) 131 CLR 321 ................................................................................................................... 15.260 Cantrell v Forest City Publishing Co 419 US 245 (1974) ................................................................. 8.490 Carindale Country Estate Pty Ltd v Astill (1993) 42 FCR 307 .............................................. 7.300, 7.320 Carleton v Australian Broadcasting Corporation [2002] ACTSC 127 ................................... 3.340, 3.1130 Carlovers Carwash Ltd v Sahathevan [2000] NSWSC 947 ............................................................ 3.1420 xvi

Table of Cases Carmyllie Pty Ltd v Mudgee Shire Council (unreported, Vic Supreme Court, Lusher J, 15 November 1984) ............................................................................................................................ 8.730 Carra v Hamilton (2001) 3 VR 114 ...................................................................................................... 5.10 Carrey v ACP Publishing Pty Ltd [1999] 1 VR 875 ........................................................................... 3.700 Carrier v Bonham [2002] 1 Qd R 474 .................................................................................. 8.920, 11.250 Carson v John Fairfax & Sons Pty Ltd (1993) 178 CLR 44 ............................................. 3.1320, 3.1330 Case of the Sheriff of Middlesex (1840) 11 Ad & E 273; 113 ER 419 ............................................ 4.210 Casey v Candler (1874) 5 AJR 358 ..................................................................................................... 6.40 Cassell & Co v Broome Ltd [1972] AC 1027 ..................................................................... 3.1320, 3.1340 Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331 ..................................................... 3.320, 3.330 Cassidy v Saatchi & Saatchi Australia Pty Ltd (2004) 134 FCR 585 ................................. 13.40, 13.360 Castrol Australia Pty Ltd v Emtech Associates Pty Ltd (1980) 33 ALR 31 ...................................... 7.330 Catch the Fire Ministries Inc v Islamic Council of Victoria Inc (2006) 15 VR 207 ...... 9.30, 9.90, 9.130, 9.140, 9.270, 9.320, 9.460, 9.470, 9.490 Central Hudson Gas & Electric Corporation v Public Service Commission of New York 447 US 557 ................................................................................................................................. 13.480 Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509 ................................................... 5.730 Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 ........ 3.100, 3.120, 3.130, 3.140, 3.190, 3.260, 3.700, 3.820, 3.830, 3.840, 3.1320 Chalmers v Payne (1835) 2 CM & R 156 ......................................................................................... 3.240 Chan v Sellwood [2009] NSWSC 1335 ............................................................................................. 8.650 Chance International Pty Ltd v Forbes (1968) 12 FLR 425; [1968] 3 NSWR 487 ............. 9.540, 9.600, 9.620 Channel Nine SA Pty Ltd v Police [2014] SASC 69 ......................................................................... 5.470 Channel Seven Adelaide Pty Ltd v Australian Communications and Media Authority [2014] FCAFC 32 ............................................................................................. 13.440, 13.450, 14.740 Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 ......... 3.1130, 3.1140, 3.1150, 3.1170, 3.1190 Channel Seven Adelaide Pty Ltd v S, DJ (2006) 94 SASR 296 .......................................... 3.120, 3.450 Channel Seven Adelaide Pty Ltd v Stockdale-Hall [2005] SASC 307 .............................................. 5.570 Channel Seven Brisbane Pty Ltd v Australian Communications and Media Authority [2014] FCAFC 179 ......................................................................................................... 14.950, 14.960 Channel Seven Perth Pty Ltd v “S” (A Company) (2007) 34 WAR 325; [2007] WASCA 122 ................................................................................................................................................. 8.420 Channel Seven Pty Ltd v An Accused (2008) 103 SASR 459 ......................................................... 5.470 Channel Seven Pty Ltd v Draper [2004] SASC 351 ......................................................................... 5.470 Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 ................................... 3.670, 3.1360 Chao v Chao [2008] NSWSC 584 ............................................................................... 8.110, 8.250, 8.270 Chaplinsky v New Hampshire 315 US 568 (1942) .............................................................................. 2.80 Chapman v Conservation Council (SA) (2002) 82 SASR 449 ............................... 3.990, 3.1100, 3.1320 Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691 ............................. 3.1280, 3.1360 Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 .............. 3.280, 3.1130, 3.1160, 3.1190, 3.1370, 8.980 Charleston v Newsgroup Newspapers Ltd [1995] 2 AC 65 ....................................... 3.220, 3.240, 3.250 Chatterton v Secretary of Capitalist State for India [1895] 2 QB 189 .............................................. 3.740 Chaudhary v Attorney-General [1999] FJCA 27 ................................................................................ 6.940 Chenard & Co v Arissol [1949] AC 127 ............................................................................................. 3.730 Chief Commissioner of Police (Vic), Re (2005) 214 ALR 422 .......................................................... 5.170 Chief Executive Officer of Customs v Carman [2004] QDC 433 .................................................... 10.270 Chippett v Thompson (1868) 7 SCR (NSW) (L) 349 .......................................................................... 6.40 Church of Scientology Inc v Transmedia Productions Pty Ltd (1987) Aust Torts Reports 80-101 ................................................................................................................................. 8.690, 8.760 Church of Scientology of California v Johnson-Smith [1972] 1 QB 522 ................................. 3.730, 4.80 Church of Scientology of California v Kaufman [1973] RPC 635 ......................................... 7.330, 7.420 Church of Scientology of California Inc v Reader’s Digest Services Pty Ltd [1980] 1 NSWLR 344 ................................................................................................................................. 3.1370 xvii

Australian Media Law Church of the New Faith v Commissioner for Payroll Tax (Vic) (1983) 154 CLR 120 .................... 9.480 Citicorp Life Insurance Ltd v Lubransky; Bagiotas v Citicorp Life Insurance Ltd [2005] VSC 101 ............................................................................................................................. 5.770, 5.780 Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540 .......... 6.40, 6.50, 6.90, 6.260, 6.280, 6.520, 6.560, 6.580, 6.590, 6.600, 6.780 Clague v APN News and Media Ltd [2012] NZHC 2898 .................................................................. 8.610 Clark and Attorney-General of Canada, Re (1978) 81 DLR (3d) 33 ................................................ 4.150 Clarke v Nationwide News Pty Ltd (t/as The Sunday Times) (2012) 289 ALR 345 ............. 9.40, 9.300, 9.310, 9.360 Clarke v Norton [1910] VLR 494 ...................................................................................................... 3.1130 Clarkson v The Mandarin Club Ltd [1998] FCA 1685 ....................................................................... 6.550 Clayton v Heffron (1960) 105 CLR 214 ............................................................................................... 4.80 Clift v Narragansett Television 688 A 805 (1996) ............................................................................ 11.170 Clough v Leahy (1904) 2 CLR 139 ...................................................................................................... 6.80 Clyne v Bowman (1986) 11 NSWLR 341 ........................................................................................... 8.110 Cobra Golf Inc v Rata [1996] FSR 819 ............................................................................................. 5.730 Coco v AN Clark (Engineers) Ltd [1969] RPC 41 ............ 7.50, 7.60, 7.220, 7.230, 7.240, 7.260, 8.940 Coco v The Queen (1994) 179 CLR 427 ................................................................... 8.320, 8.680, 8.700 Cojuangco v John Fairfax & Sons Ltd (No 2) (1991) Aust Torts Reports 81-068 ........................... 7.610 Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 .............................. 2.80, 2.90, 2.100, 5.40, 7.630 Coles-Smith v Smith [1965] Qd R 494 .............................................................................................. 8.730 Colina, Re; Ex parte Torney (1999) 200 CLR 386 .............................. 6.100, 6.780, 6.810, 6.920, 6.930 Collard v State of Western Australia (No 2) [2013] WASC 55 .............................................. 5.610, 5.620 Collard v State of Western Australia (No 3) [2013] WASC 70 .............................................. 5.160, 5.250 Collis v Cater, Stoffell & Fortt Ltd (1898) 78 LT 613 ........................................................................ 12.70 Comalco Ltd v Australian Broadcasting Corporation (1983) 50 ACTR 1 ........................................... 4.80 Commercial Bank of Australia Ltd v Preston [1981] 2 NSWLR 554 ................................................ 6.540 Commission for Racial Equality v Dutton (1989) IRLR 8 .................................................................. 9.210 Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 ......... 7.50, 7.150, 7.240, 7.260, 7.280, 7.330, 10.20 Commonwealth v Kreglinger & Fernau Ltd (1926) 37 CLR 393 ........................................................ 2.90 Commonwealth v Vance (2006) 158 ACTR 47 .................................................................................... 4.80 Commonwealth Bank of Australia v Mehta (1991) ATPR 41-103 ..................................................... 13.40 Communications, Electrical, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Commissioner Laing of the Australian Industrial Relations Commission (1998) 89 FCR 17; 159 ALR 73 .............................................................................. 3.990 Community Television Sydney Ltd v Australian Broadcasting Authority (2004) 136 FCR 316 ............................................................................................................................................... 14.630 Competition and Consumer Commission v Allergy Pathway Pty Ltd (No 2) (2011) 192 FCR 34; [2011] FCA 74 ................................................................................................................ 6.160 Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd (1994) 53 FCR 125 ........................... 5.730 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 .......................................... 13.50 Concrete Pty Ltd v Parramatta Designs & Developments Pty Ltd (2006) 229 CLR 577 .............. 12.230 Connelly v Director of Public Prosecutions [1964] AC 1254 ............................................................. 5.100 Conservation Council of SA Inc v Chapman (2003) 87 SASR 62 ...................................... 3.990, 3.1000 Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 ........................................................ 3.440 Coogi Australia Pty Ltd v Hysport International Pty Ltd (1998) 86 FCR 154 .................................. 12.90 Cook v Alexander [1974] QB 279 ...................................................................................................... 3.830 Cooper v The Queen (1961) 105 CLR 177 ....................................................................................... 10.60 Cooper v Universal Music Australia Pty Ltd (2006) 156 FCR 380 ...................... 12.350, 12.360, 12.370 Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 ......................................................................... 3.300 Corelli v Gray (1913) 29 TLR 570 ................................................................................................... 12.280 Corelli v Gray (1913) 30 TLR 116; (1913) 1B IPR 183 .................................................................. 12.280 Cornes v Ten Group Pty Ltd [2011] SASC 104 ................................................................... 3.130, 3.1280 Cornwell v Myskow [1987] 2 All ER 504 .......................................................................................... 3.1160 xviii

Table of Cases Coroner’s Court of Western Australia, Re; Ex parte Porteous (2002) 26 WAR 483; [2002] WASCA 144 .......................................................................... 6.140, 6.220, 6.520, 6.560, 6.600 Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 74 ALR 428 .... 7.260, 7.300, 7.330, 7.360 Cother v John Fairfax and Sons Pty Ltd (1947) 64 WN (NSW) 154 ............................................... 3.530 Coulthard v South Australia (1995) 63 SASR 531 ..................................................... 7.250, 7.270, 7.280 Cowley v Pulsifer 50 Am Rep 318 (1884) ........................................................................................... 5.20 Coyne v Citizen Finance Ltd (1991) 172 CLR 211 ......................................................................... 3.1340 Craig v Attorney-General (1986) 2 CRNZ 551 .................................................................................. 8.600 Craig v Harney 331 US 367 (1947) ................................................................................................... 6.940 Crampton v Nugawela (1996) 41 NSWLR 176 ............................................................................... 3.1320 Crane v Gething (2000) 97 FCR 9 .................................................................................................... 4.240 Creation Records Ltd v News Group Newspapers Ltd (1997) 39 IPR 1 ..... 7.240, 8.520, 8.940, 8.1040 Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 ...................................................... 9.80, 9.240, 9.250 Crest Homes Plc v Marks [1987] AC 829 .............................................................................. 5.730, 5.780 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 ........................................ 11.20 Cronulla-Sutherland District Rugby League Football Club Ltd v Nationwide News Pty Ltd [2013] NSWSC 494 ......................................................................................................................... 7.60 Crookes v Newton [2011] 3 SCR 269 ................................................................................................ 3.560 Cross v Denley (1952) 52 SR (NSW) 112 ......................................................................................... 3.440 Crossman v Fennemore (1986) 43 SASR 287 .................................................................................. 9.800 Crowe v Graham (1968) 121 CLR 375 ...................................... 9.10, 9.540, 9.570, 9.590, 9.600, 9.620 Crowley v Glissan (1905) 2 CLR 744 ................................................................................................ 3.660 Crown Suppliers PSA v Dorkins (1991) IRLR 327 ............................................................................ 9.210 Cruise and Kidman v Southdown Press (1993) IPR 125 .................................................................. 8.440 Cubby Inc v CompuServe Inc 776 F Supp 135 (SDNY) (1991) ......................................... 3.560, 3.1270 Cummins v Bond [1927] 1 Ch 167 .................................................................................................. 12.160 Cummins v Vella (2002) AIPC ¶91-812; [2002] FCAFC 218 .......................................................... 12.200 Cunliffe v Commonwealth (1994) 182 CLR 272 .................................................................................. 2.90 Czatyrko v Edith Cowan University (2005) 214 ALR 349 ................................................................. 11.20

D D1 v P1 [2012] NSWCA 314 .............................................................................................................. 5.440 DJL v Central Authority (2000) 201 CLR 226 .................................................................................... 5.100 DW v The Queen [2014] NSWCCA 28 .................................................................................. 8.270, 8.380 Daily Examiner Pty Ltd v Mundine [2012] NSWCA 195 ...................................................... 3.860, 3.1080 Daintree Café Pty Ltd v Jacfun Pty Ltd [2002] NSW ADT 188 ........................................................ 5.730 Dalia v United States 441 US 238 (1979) ......................................................................................... 8.320 Dallas Buyers Club LLC v iiNet Ltd [2015] FCA 317 ...................................................................... 12.350 Dalton v Bartlett (1972) 3 SASR 549 ..................................................................................... 9.540, 9.560 Dando v Anastassiou [1951] VLR 235 ................................................................................................. 5.10 Darwin Bakery v Sully (1981) 36 ALR 371 ...................................................................................... 13.110 Data Access Corp v Powerflex Services Pty Ltd (1999) 202 CLR 1 ............................................... 12.90 Daubney v Cooper (1829) 10 B & C 237; 109 ER 438 ..................................................................... 5.10 David Jones Ltd v The Australia Institute Ltd [2007] FCA 962 ...................................................... 3.1460 David Syme & Co Ltd v Canavan (1918) 25 CLR 234 .................................................................... 3.410 David Syme & Co Ltd v General Motors-Holden’s Ltd [1984] 2 NSWLR 294 ..... 5.20, 5.30, 5.60, 5.80, 5.130 David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667 ...................................................................... 3.700 David Syme & Co Ltd v Maher [1977] VR 516 ............................................................................... 3.1340 Davidson v Time Warner 25 Med L Rptr 1705 (SD Tex 1997) ...................................................... 11.310 Davis v Baillie [1946] VLR 486 ........................................................................ 6.220, 6.230, 6.430, 6.470 Davis v Commonwealth (1988) 166 CLR 79 ................................................................................... 13.430 Dawson Bloodstock Agency v Mirror Newspapers Ltd [1979] 1 NSWLR 16 ................................... 3.140 Dawson: Re Australian Consolidated Press Ltd, Ex parte [1961] SR (NSW) 573 .......................... 6.190 De Filippo v NBC 446 A 2d 1036 (RI 1982) .................................................................................... 11.290 xix

Australian Media Law De Haes and Gijsels v Belgium (1998) 25 EHRR 1 ......................................................................... 6.940 Delbert-Evans v Davies (1945) 2 All ER 167 .................................................................................... 6.180 Delegal v Highley (1837) 3 Bing NC 950; 132 ER 677 .................................................................... 3.820 Dennis v United States 341 US 494 (1951) ........................................................................................ 2.80 Department of Community Services, Director-General of v D [2006] NSWSC 827 ........................ 7.520 Department of Economics, Policy and Development of the City of Moscow v Bankers Trust Co [2004] EWCA Civ 314 .................................................................................................... 5.430 Derbyshire County Council v Times Newspapers [1993] AC 534 .................................................... 3.540 Deren v New South Wales (1998) Aust Torts Reports 81-463 ......................................................... 3.990 Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd (2002) 119 FCR 491 ................... 12.110 Dhooharika v Director of Public Prosecutions (Mauritius) [2014] UKPC 11 ............. 6.810, 6.820, 6.930, 6.940 Dian AO v Davis Frankel & Mead [2005] 1 All ER 1074 ........................................................ 5.50, 5.670 Dickason v Dickason (1913) 17 CLR 50 ........................................................................... 5.10, 5.40, 5.50 Dietemann v Time Inc 449 F 2d 245 (1971) ..................................................................................... 8.470 Dietrich v The Queen (1992) 177 CLR 292 ...................................................................................... 6.780 Dillon v Balfour (1887) 20 Ir LR 600 ........................................................................................ 4.40, 4.100 Dingle v Associated Newspapers Ltd [1960] 2 QB 405 ...................................................................... 4.80 Director of Public Prosecutions v Australian Broadcasting Corporation (1986) 86 FLR 153; 7 NSWLR 588 .................................................................................................. 6.90, 6.310, 6.700 Director of Public Prosecutions v B [2013] SASC 120 ..................................................................... 5.470 Director of Public Prosecutions v F (unreported, Vic Supreme Court, Cummins J, 30 November 1995) .............................................................................................................................. 5.30 Director of Public Prosecutions v Francis (2006) 95 SASR 302; [2006] SASC 211 ........... 6.140, 6.230, 6.260, 6.310, 6.350, 6.370, 6.680, 6.880 Director of Public Prosecutions v Francis (No 2) (2006) 95 SASR 321; [2006] SASC 261 ........... 6.960 Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 ............. 6.140, 6.950 Director of Public Prosecutions v Johnson (2002) 6 VR 227 ........................................................... 6.950 Director of Public Prosecutions v Nakhla [2006] NSWSC 781 ......................................................... 8.250 Director of Public Prosecutions v Theophanous [2009] VSC 325 .................................................... 5.570 Director of Public Prosecutions v Whyte [1972] AC 849 ................................................................... 9.600 Director of Public Prosecutions v Wran (1987) 86 FLR 92 ...... 6.70, 6.140, 6.150, 6.180, 6.220, 6.230, 6.330, 6.340, 6.670, 6.690, 6.750, 6.950, 6.960 Director of Public Prosecutions (Cth) v Ho (Ruling No 2) [2009] VSC 388 ....................................... 5.80 Director of Public Prosecutions (Cth) v Magistrates Court of Victoria [2011] VSC 593 .................. 5.530 Director of Public Prosecutions (Cth) v Sexton (2008) 181 A Crim R 507; [2008] NSWSC 152 .............................................................................................................. 6.70, 6.230, 6.960 Director of Public Prosecutions (Cth) v United Telecasters Sydney Ltd (1990) 168 CLR 594 .................................................................................................................... 13.460, 13.470, 13.480 Director of Public Prosecutions (Cth) v United Telecasters Sydney Ltd (1992) 7 BR 364 ............ 6.730, 6.950 Director of Public Prosecutions (NSW) v Fordham (2010) 202 A Crim R 254; [2010] NSWSC 795 ..................................................................................... 8.190, 8.210, 8.220, 8.290, 8.340 Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd [1975] QB 613 ...................................... 5.760 Dixon v Anti-Discrimination Commissioner of Queensland [2005] 1 Qd R 33 ................................. 9.480 Djuricanin v Foreign Language Publications Pty Ltd (unreported, NSW Supreme Court, 12 May 1995) ................................................................................................................................ 3.280 Dobson v Hastings [1992] Ch 394; 2 All ER 94 ........................................................... 5.50, 5.670, 5.675 Doe v Australian Broadcasting Corporation [2007] VCC 281 ............... 5.380, 5.570, 7.60, 8.960, 8.970, 11.70, 11.230 Doe v John Fairfax Publications Pty Ltd (1995) 125 FLR 372 ......................................................... 5.230 Doe v Yahoo!7 Pty Ltd [2013] QDC 181 ........................................................................................... 8.960 Donoghue v Allied Newspapers Ltd [1938] Ch 106 ............................................................. 12.20, 12.170 Donoghue v Hayes (1831) Exch 265 ................................................................................................. 3.200 Donovan’s Application, Re [1957] VR 333 ......................................................................................... 5.820 Doolan v Waltons Ltd (1981) 39 ALR 408 ....................................................................................... 13.120 xx

Table of Cases Douglas v Hello! Ltd [2001] QB 967; 2 All ER 289 ................................................... 7.240, 8.440, 8.520 Douglas v Hello! Ltd [2003] EWHC 786 ............................................................................................ 8.940 Douglas v Hello! Ltd [2006] QB 125 .................................................................................................. 8.560 Douglas v Hello! Ltd (No 3) [2007] 2 WLR 920 ......................... 7.60, 7.200, 7.210, 7.230, 7.310, 8.530 Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 ............................. 3.40, 3.50, 3.480, 6.160 Downey v Carlson Hotels Asia Pacific Pty Ltd [2005] QCA 199 ...................................................... 13.40 Doyle v Falconer (1866) LR 1 PC 328; 16 ER 293 .......................................................................... 4.230 Drivetime Radio Australia Pty Ltd v Pivotal Creative Solutions Pty Ltd [2010] NSWSC 1103 ................................................................................................................................................ 5.730 Duane v Granrott [1982] VR 767 ...................................................................................................... 3.1160 Ducret v Chaudhary’s Oriental Carpet Palace Pty Ltd (1987) 16 FCR 562 .................................. 13.120 Duff v Communicado Ltd [1996] 2 NZLR 89 ..................................................................................... 6.540 Duff v The Queen (1979) 39 FLR 315 ............................................................................................... 6.280 Duffy v Baehnk (unreported, SA Supreme Court, Cox J, 4 March 1993) ........................ 3.1470, 3.1550 Duncombe v Daniell (1837) 3 Car & P 223; 173 ER 470 ................................................................ 3.970 Dunford Publicity Studios Ltd v News Media Ownership Ltd [1971] NZLR 961 .............................. 3.930 Dunn, Re; Re Aspinall [1906] VLR 493 ............................................................................................... 6.40 Dupas v Channel Seven Melbourne Pty Ltd [2012] VSC 486 ................................... 5.210, 5.230, 5.290 Dupas v The Queen (2010) 241 CLR 237 ........................................................................................ 6.120 Duracell Australia Pty Ltd v Union Carbide Australia Ltd (1988) ATPR 40-918 ................... 13.40, 13.70 Dye v Commonwealth Securities Ltd [2010] FCA 720 ...................................................................... 8.960

E E v Australian Red Cross Society (1991) 27 FCR 310 ...................................................................... 5.80 E Hulton & Co v Jones [1910] AC 20 ....................................................................... 3.320, 3.400, 3.1250 EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd (2011) 191 FCR 444 .............. 12.270, 12.310 EPP v National Buying Group Pty Ltd [2001] NSWSC 482 ............................................................. 7.190 ESB v Victoria [2010] VSC 479 .......................................................................................................... 5.120 ETK v News Group Newspapers Ltd [2011] EWCA Civ 439 ............ 7.410, 8.560, 8.570, 8.580, 8.1040 Eagle Homes Pty Ltd v Austec Homes Pty Ltd (1999) 87 FCR 415 ............................................. 12.260 Earl Spencer v United Kingdom (1998) 25 EHRR CD 105 .............................................................. 8.520 Earthquake Commission v Krieger [2013] NZHC 3140 ....................................................................... 7.60 East Sussex County Council v Stedman [2010] 1 FCR (UK) 567 ................................................... 5.290 Eatock v Bolt (2011) 197 FCR 261; [2011] FCA 1103 ................................................. 2.110, 9.50, 9.350 Eatock v Bolt (No 2) (2011) 284 ALR 114; [2011] FCA 1180 ........................................................... 9.360 Ebbells v Rewell [1908] VLR 261 ...................................................................................................... 8.660 Echo Publications Pty Ltd v Tucker [2007] NSWCA 73 .................................................................... 3.210 EdSonic Pty Ltd v Cassidy (2010) 189 FCR 271 ............................................................................ 12.220 Edelsten v Investigating Committee of New South Wales (1986) 7 NSWLR 222 .................. 8.80, 8.110 Edginton v South Australian Telecasters Ltd (1986) 126 LSJS 254 ................................... 3.320, 3.1340 Edward Brewer Homes Pty Ltd v Home Builders Australia Pty Ltd [2010] WASC 257 .................. 3.520 Egan v Willis (1998) 195 CLR 424 .................................................................... 4.20, 4.230, 4.250, 4.500 Egan v Willis & Cahill (1996) 40 NSWLR 650 .................................................. 4.20, 4.230, 4.250, 4.350 Egger v Lord Chelmsford [1965] 1 QB 248 ....................................................................................... 3.960 Eisa Ltd v Brady [2000] NSWSC 929 .................................................................................... 5.675, 5.730 Ekermawi v Harbour Radio Pty Ltd [2010] NSWADT 145 ................................................................ 9.220 Ekermawi v Network Ten Pty Ltd [2008] NSWADT 334 ................................................................... 9.220 Eldred v Ashcroft (2003) 537 US 186; (2003) 56 IPR 608 ............................................................. 12.150 Ellis v Deheer [1922] 2 KB 113 .......................................................................................................... 5.820 Ellis v Trowen Frozen Foods 264 Cal App 2d 499 (1968) ............................................................. 11.280 Eltran Pty Ltd v Westpac Banking Corporation (1990) 25 FCR 322 ................................................ 5.730 Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd (2008) 172 FCR 580 ................... 12.80, 12.320 Emcorp Pty Ltd v Australian Broadcasting Corporation [1988] 2 Qd R 169 ........................ 8.680, 8.760 Enders v Erbas & Associates Pty Ltd [2014] NSWCA 70 .............................................................. 3.1280 Energizer Australia Pty Ltd v Gillette Australia Pty Ltd (2001) 189 ALR 480 ................................ 13.120 xxi

Australian Media Law Entienne Pty Ltd v Festival City Broadcasters Pty Ltd (2001) 79 SASR 19 ................................... 3.200 Environment Protection Authority v Pannowitz [2006] NSWLEC 219 ................................... 6.820, 6.890 Environment Protection Authority v Pannowitz (No 2) (2006) 153 LGERA 126; [2006] NSWLEC 797 ................................................................................................................................ 6.950 Equitycorp Industries Ltd v ACI International Ltd (1986) 10 ACLR 568 ......................................... 15.220 Erglis v Buckley [2003] QSC 440 ......................................................................................................... 4.80 Erglis v Buckley [2004] 2 Qd R 599 ......................................................................................... 3.730, 4.80 Erglis v Buckley [2005] QCA 404 ....................................................................................................... 4.160 Erglis v Buckley [2005] QSC 25 ......................................................................................................... 4.160 Erica Vale Australia Pty Ltd v Thompson & Morgan (Ipswich) Ltd (1994) 29 IPR 589 ................... 12.70 Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 ....................... 5.50, 5.730, 5.770, 5.780 Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443 ................................... 8.990 Ettingshausen v Australian Consolidated Press Ltd (unreported, NSW Court of Appeal, 13 October 1993) .......................................................................................................................... 8.990 Ettingshausen v Australian Consolidated Press Ltd (unreported, NSW Supreme Court, Hunt J, 25 June 1991) .................................................................................................................. 3.140 Ettingshausen v Australian Consolidated Press Ltd (unreported, NSW Supreme Court, Hunt CJ in CL, 11 March 1993) .................................................................................... 3.1290, 3.1300 European Asian Bank AG v Wentworth (1986) 5 NSWLR 445 .......................................................... 6.90 Evans v Crichton-Browne (1981) 147 CLR 169 ................................................................................ 4.620 Evans v Detlefsen 857 F 2d 330 (6th Cir 1988) ............................................................................... 8.470 Evans v Finn (1904) 4 SR (NSW) 297 .............................................................................................. 8.860 Evans v New South Wales (2008) 168 FCR 576; [2008] FCAFC 130 .............................................. 2.90 Evatt v Nationwide News (unreported, NSW Supreme Court, Newman J, 6 March 1997) .......... 3.1080 Evening News, Re (1880) 1 LR (NSW) L 211 ............................................................ 6.830, 6.890, 7.510 Eveready Australia Pty Ltd v Gillette Australia Pty Ltd (No 4) (2000) ATPR 41-751 ...................... 13.70 Ewing v Times Newspapers Ltd [2013] NICA 74 ............................................................................ 8.1040 Exchange Telegraph Company Ltd v Central News Ltd [1897] 2 Ch 48 ......................................... 7.230 Executive Council of Australian Jewry v Scully (1998) 160 ALR 138 .............................................. 9.280 Exxon Corp v Exxon Insurance Consultants International Ltd [1982] Ch 119 ................................. 12.90

F F, Re [1977] 1 All ER 114 .................................................................................................................. 5.150 F, Re (1989) 51 SASR 141 ................................................................................................................ 5.470 FAI General Ins Co Ltd v RAIA Insurance Brokers Ltd (1992) 108 ALR 479 ................................. 13.70 Faesenkloet v Jenkin [2014] NZHC 1637 ............................................................................... 8.610, 8.620 Fairbairn v John Fairfax & Sons Ltd (1977) 21 ACTR 1 ................................................................ 3.1360 Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 ......... 5.190, 5.200, 5.210, 5.220, 5.240, 5.250, 5.290, 5.420, 5.440, 6.160, 6.790 Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1992) 26 NSWLR 131 ...................................................................................................... 5.310 Fairfax Media Publications Pty Ltd v Bateman [2015] NSWCA 154 ................................................ 3.700 Fairfax Media Publications Pty Ltd v Cummings [2013] ACTCA 37 ................................................. 3.560 Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd (2010) 189 FCR 109 ................................................................................................................................. 12.90 Farmer v Hyde [1937] 1 KB 728 ........................................................................................................ 3.820 Farquhar v Bottom [1980] 2 NSWLR 380 .............................................. 3.80, 3.190, 3.280, 3.300, 3.830 Farris v Boase [2013] WASC 227 ...................................................................................................... 8.380 Fastways Couriers (Aust) Pty Ltd v Australian Broadcasting Corporation (unreported, Federal Court, Gummow J, 27 March 1995) ................................................................ 3.1430, 13.410 Faulkner v Elliott [2010] FCA 884 ...................................................................................................... 4.620 Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; 79 ALJR 1716 ...... 3.80, 3.120, 3.170, 3.220, 3.300 Fayn v Thompson Properties Pty Ltd (1991) 7 BR 144 ................................................................... 3.130 Featherston v Tully (2002) 83 SASR 302; 194 ALR 703 .................................................................. 4.620 Featherston v Tully (No 2) (2002) 83 SASR 347; 128 LGERA 115 ................................................. 4.630 xxii

Table of Cases Felton v Mulligan (1971) 124 CLR 367 .............................................................................................. 8.960 Fenton v Hampton (1858) 11 Moo PC 347; 14 ER 727 ....................................................... 4.230, 4.350 Ferdinand v MGN Ltd [2011] EWHC 2454 ........................................................................................ 8.570 Finn v Hunter (1886) 12 VLR 656 ..................................................................................................... 3.740 First Equity Corporation of Florida v Standard & Poor’s Corporation 670 F Supp 115 (SD NY 1987) .............................................................................................................................. 11.350 Firth v State of New York 775 NE 2d 463 (NY 2002) ........................................................................ 3.50 Fitzgibbon v Barker, Gardner and Leader Associated Newspapers Pty Ltd; Re Schwartzkopff (1993) FLC 92-381 ......................................................................... 6.820, 6.920, 6.930 Flegg v Hallett [2014] QSC 278 ......................................................................................................... 3.730 Fleming v Securities Commission [1995] 2 NZLR 514 .................................................................... 11.350 Flood v Times Newspapers Ltd [2012] 2 AC 273 ................................................ 3.1020, 3.1030, 3.1080 Florida Publishing Co v Fletcher 340 So 2d 914 (1976) .................................................................. 8.470 Folbigg v The Queen [2007] NSWCCA 371 ...................................................................................... 6.790 Forster v Watson (1944) 44 SR (NSW) 399 ...................................................................................... 3.790 Foxtel Cable Television Pty Ltd v Nine Network Australia Pty Ltd (1997) 73 FCR 429; 143 ALR 516 .............................................................................................................................. 14.1230 Franchi v Franchi [1967] RPC 149 ..................................................................................................... 7.110 Francis v Herald & Weekly Times (unreported, 17 March 1987, Supreme Court of Victoria, Lush J) ............................................................................................................................... 6.80 Francis Day & Hunter Ltd v Bron [1963] Ch 587; (1963) 1A IPR 331 ............................. 12.280, 12.290 Francome v Mirror Group Newspapers Ltd [1984] 2 All ER 408; 1 WLR 892 .......... 1.10, 7.240, 7.330, 7.350, 7.360 Fraser v Evans [1969] 1 QB 349 .............................................. 7.240, 7.330, 7.380, 7.390, 7.410, 8.530 French v John Fairfax Publications Pty Ltd [2007] VSC 105 ........................................................... 7.580 French v Triple M Melbourne Pty Ltd (No 5) [2008] VSC 553 ....................................................... 3.1170 Fry v Bray [1959] 1 FLR 366 ............................................................................................................. 6.530

G G v Day [1982] 1 NSWLR 24 ........................................................................................ 7.60, 7.120, 8.960 G v The Queen (1984) 35 SASR 349 ............................................................................................... 5.470 GIO Personal Investment Services Ltd v Liverpool and London Steamship Protection and Indemnity Association Ltd [1999] 1 WLR 984 ............................................................. 5.50, 5.670 GS v News Ltd (1998) Aust Torts Reports 81-466 .......................................................................... 11.190 Gacic v John Fairfax Publications Pty Ltd [2005] NSWSC 1210 ...................................................... 11.60 Gacic v John Fairfax Publications Pty Ltd [2009] NSWSC 1403 .................................................... 3.1150 Galaxy Electronics Pty Ltd v Sega Enterprises Ltd (1997) 75 FCR 8 ........................................... 12.120 Galella v Onassis 353 F Supp 196 (1972) ...................................................................................... 11.180 Galella v Onassis 487 F 2d 986 (1973) ............................................................................................ 8.470 Gallagher v Durack (1983) 152 CLR 238 ............. 2.90, 6.70, 6.810, 6.820, 6.880, 6.920, 6.930, 6.950, 6.960 Gannett Co Inc v DePasquale 443 US 368 ........................................................................................ 5.20 Gardiner v John Fairfax and Sons (1942) 42 SR (NSW) 171 ........................................... 3.1150, 3.1170 Garrison v Louisiana 379 US 64 (1964) ............................................................................................ 6.940 Gartside v Outram (1856) 26 LJ Ch 113 ........................................................................................... 7.330 Gaskell & Chambers Ltd v Hudson, Dodsworth & Co [1936] 2 KB 595 ......................................... 5.675 Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 .............................................. 13.330 Gathercole’s Case (1838) 2 Lewin 237; 168 ER 1140 ..................................................................... 9.390 Gee v Burger [2009] NSWSC 149 ..................................................................................................... 8.650 General Medical Council v British Broadcasting Corporation [1998] 3 All ER 426 ............................ 6.50 General Television Corporation Pty Ltd v Director of Public Prosecutions (2008) 19 VR 68; [2008] VSCA 49 .... 5.160, 5.190, 5.200, 5.210, 5.220, 5.230, 5.290, 5.330, 5.540, 6.950, 6.790 George Weston Foods Ltd v Goodman Fielder Ltd [2000] FCA 1632 ............................................. 13.70 Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72 ................................................... 8.380 Gianni Versace SpA v Monte (2002) 119 FCR 349 ............................................................................ 9.50 Gibb v Gibb [1978] FLC 90-405 ......................................................................................................... 5.570 xxiii

Australian Media Law Gibbons v Duffell [1932] 47 CLR 520 ................................................................................................ 3.740 Gilbert v Minnesota 254 US 325 (1920) .............................................................................................. 2.80 Gilbert v The Queen (2000) 201 CLR 414 ........................................................................................ 5.290 Gill v Curtis Publishing 38 Cal 2d 273 (1952) ................................................................................... 8.490 Gill v Hearst Corporation 40 Cal 2d 224 (1953) ............................................................................... 8.490 Giller v Procopets (2008) 24 VR 1 ............. 7.60, 7.430, 8.10, 8.650, 8.920, 8.940, 8.950, 8.960, 8.970 Gillette Australia Pty Ltd v Energizer Australia Pty Ltd (2002) 193 ALR 629 .................................. 13.70 Gillette Australia Pty Ltd v Energizer Australia Pty Ltd [2005] FCA 1647 ........................................ 13.70 Ginzburg v United States 383 US 463 (1966) ................................................................................... 11.40 Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563 .......................................... 6.470, 6.490 Gitlow v New York 268 US 652 (1925) ................................................................................................ 2.80 Given v CV Holland (Holdings) Pty Ltd (1977) 15 ALR 439 ........................................................... 13.110 Given v Snuffa Pty Ltd (1978) ATPR 40-083 ................................................................................... 13.240 Glasgow Corporation v Taylor [1922] 1 AC 44 ................................................................................ 11.280 Gleaves v Deakin [1980] AC 477 ..................................................................................................... 3.1470 Global One Mobile Entertainment Pty Ltd v ACCC (2012) ATPR 42-419 ........................................ 13.80 Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 55 ALR 25 ......... 13.410, 13.40, 13.60, 3.1410 Godfrey v Demon Internet Service Ltd [2001] QB 201 ......................................................... 3.560, 6.160 Goffin v Donnelly (1881) 6 QBD 307 ........................................................................................ 4.40, 4.150 Goldsborough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524 .................... 3.680, 3.1130, 3.1170 Goldsmith v Sperrings Ltd [1977] 1 WLR 478 ................................................................................. 3.1470 Goodwin v NGN Ltd [2011] EWHC 1437 ................................................................ 8.550, 8.1030, 8.1040 Goodwin v United Kingdom (1996) 22 EHRR 123 ................................................................ 7.510, 7.660 Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435 ..... 13.40, 13.60 Gorton v Australian Broadcasting Commission (1973) 22 FLR 181 ............................ 3.40, 3.190, 3.480 Gosset v Howard (1845) 10 QB 411; 116 ER 158 ........................................................................... 4.220 Gould v TCN Channel 9 [2000] NSWSC 707 .................................................................................... 11.60 Gouldham v Sharrett [1966] WAR 129 ............................................................................................ 3.1550 Grand Jury Subpoena (Judith Miller), In re 397 F 3d 964 ............................................................... 7.520 Grant-Taylor v Jamieson [2002] NSWSC 634 .................................................................................... 7.450 Grassby v The Queen (1989) 168 CLR 1 ................................................................ 3.1470, 5.100, 5.160 Graves v Warner Bros 656 NW 2d 195 (2002) ............................................................................... 11.320 Green v Bartram (1830) 4 C & P 308 ............................................................................................... 8.770 Green v The City of Westminster Magistrates’ Court [2007] EWHC 2785 ...................................... 9.370 Green v The Queen (1996) 124 FLR 423 ........................................................................................... 8.80 Green Corns Ltd v Claverley Group Ltd [2005] EWHC 958 ............................................... 8.610, 8.1040 Greers Ltd v Pearman & Corder Ltd (1922) 39 RPC 406 .............................................................. 3.1460 Greig v Greig [1966] VR 376 ............................................................................................................. 8.730 Griffith v Australian Broadcasting Corporation [2010] NSWCA 257 ..................... 3.1060, 3.1070, 3.1240 Griffith & Macartney-Snape v Australian Broadcasting Corporation [2008] NSWSC 764 .............. 3.1040 Griffiths v Lewis (1845) 14 LJQB 197 ................................................................................................ 4.110 Griffiths & Beerens Pty Ltd v Duggan (No 2) [2008] VSC 230 ........................................................ 5.780 Grocon v Construction, Forestry, Mining and Energy Union (No 2) [2014] VSC 134 ............. 6.20, 6.40, 6.950 Grofam Pty Ltd v KPMG Peat Marwick (1993) 27 IPR 215 ............................................................. 7.330 Grollo v Palmer (1995) 184 CLR 348 ......................................................................................... 5.10, 5.40 Grosse v Purvis [2003] QDC 151; [2003] Aust Torts Reports ¶81-706 ........ 8.650, 8.680, 8.730, 8.920, 8.1030, 8.1050, 8.1170 Grundmann v Georgeson (1996) Aust Torts Reports 81-396 ........................................................... 3.180 Guardian News and Media Ltd v AB, CD [2014] EWCA Crim B1 ..................................................... 5.20 Guay v Sun Publishing Co [1953] 4 DLR 577 ................................................................... 11.240, 11.260 Gul v Informant Senior Constable Creed [2010] VSC 185 ............................................................... 9.560 Gulf Oil (Great Britain) Ltd v Page [1987] 1 Ch 327 ...................................................................... 3.1370 Gumina v Williams (No 2) [1990] 3 WAR 351 .................................................................................. 3.700 Guthrie v Doyle Dane & Bernbach Pty Ltd (1977) 16 ALR 241 ....................................................... 13.50 xxiv

Table of Cases Guthrie v Metro Ford Pty Ltd (1977) ATPR 40-030 .......................................................................... 13.50 Gwynne v Wairapa Times-Age [1972] NZLR 586 .............................................................................. 3.210

H HIH; Australian Securities and Investments Commission v Adler (2001) 39 ACSR 216 ................. 5.675 HM Attorney-General v MGN Ltd & News Group Newspapers Ltd [2011] EWHC 2074 ................. 6.230 HM Attorney-General (UK) v Davey; Attorney-General (UK) v Beard [2013] EWHC 2317 ............. 6.800 HRH Prince of Wales v Associated Newspapers Ltd [2006] EWHC 522 ......................................... 8.560 Habib v Commonwealth [2008] FCA 1494 ........................................................................................... 4.90 Hagan v Trustees of the Toowoomba Sports Ground Trust [2001] FCAFC 123 ............................. 9.240 Hahn v Conley (1971) 126 CLR 276 ................................................................................................ 11.110 Haisman v Smelcher [1953] VLR 625 ................................................................................................ 8.710 Halden v Marks (1996) 17 WAR 447 ................................................................................................... 4.80 Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84 ............................................................ 3.140 Halliday v Nevill (1984) 155 CLR 1 ........................................................................................ 8.680, 8.690 Hamed v The Queen [2012] 2 NZLR 305 ......................................................................................... 8.620 Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 .............. 5.730, 5.760, 5.770, 5.780, 5.790, 6.90, 6.520, 6.540, 6.550, 6.560 Hamilton v Al Fayed [2001] 1 AC 395 ............................................................................................... 4.140 Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 .......................................................................... 11.20 Hamilton v Osbourne 958 F 2d 1084 (11th Cir 1992) ..................................................................... 11.310 Hamling v US 418 US 87 (1974) ....................................................................................................... 9.590 Hammond v Commonwealth (1982) 152 CLR 188 ............................................................................. 6.80 Hammond v Scheinberg (2001) 52 NSWLR 49 .......................................................... 5.660, 5.670, 5.675 Hamsher v Swift (1992) 33 FCR 545 ....................................................................................... 4.90, 4.140 Hancock v Lynch [1988] VR 173 ........................................................................................................ 7.530 Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290 .............. 7.530, 7.540, 7.580, 7.670, 7.680 Hancock Prospecting Pty Ltd v Hancock (No 2) [2014] WASC 85 .................................................. 7.540 Hanrahan v Ainsworth (1990) 22 NSWLR 73 .................................................................................... 3.790 Hansen v Border Morning Mail Pty Ltd (1987) 9 NSWLR 44 ........................................................ 3.1080 Hansen v Western Australia [2010] WASCA 180 .............................................................................. 6.790 Harbour Radio Pty Ltd v Australian Communications and Media Authority (2010) 184 FCR 537; [2010] FCA 478 ........................................................................................................ 14.1440 Harbour Radio Pty Ltd v Australian Communications and Media Authority (2012) 202 FCR 525 ............................................................................................ 14.930, 14.940, 14.960, 14.1160 Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31 .................................................... 3.170, 3.880, 3.920 Harding v Essey (2005) 30 WAR 1 .................................................................................................... 3.880 Harkianakis v Skalkos (1997) 42 NSWLR 22 ..... 6.70, 6.140, 6.230, 6.530, 6.540, 6.550, 6.680, 6.710, 6.750, 6.770 Harman v Secretary of State for the Home Department [1983] 1 AC 280 ...... 5.20, 5.730, 5.770, 5.780 Harms v Miami Daily News Inc 127 So 2d 715 (1961) .................................................................... 8.470 Harou-Sourdon v TCN Channel Nine Pty Ltd (1994) Eq Opp Cases 92-604 .......... 9.120, 9.130, 9.140, 9.160, 9.170 Harris v Harris [2001] EWHC 231 (Fam) 231 ........................................................................ 6.820, 6.840 Harry Seidler & Associates Pty Ltd v John Fairfax & Sons Ltd (1986) Aust Torts Reports 80-002 ............................................................................................................................... 3.200, 3.1160 Hart v Wrenn (1995) 5 NTLR 17; 124 FLR 135 .................................................................... 3.700, 3.990 Hartley v Nationwide News Pty Ltd (1995) 119 FLR 124 ................................................................. 3.990 Hartnett v Crick [1908] AC 470 .......................................................................................................... 4.230 Haruna v The Queen [2013] WASCA 170 ......................................................................................... 6.800 Harvey v County Court (Vic) [2006] VSC 293 ............................................................ 7.510, 7.540, 7.560 Hatfield v TCN Channel Nine Pty Ltd [2010] NSWCA 69 ............................................................... 3.1370 Hawkes and Son (London) Ltd v Paramount Film Service Pty Ltd [1934] Ch 593 ....................... 12.300 Hayward v Thompson [1982] QB 47 .................................................................................................. 3.350 He Kaw Teh v The Queen (1985) 157 CLR 523 .............................................................................. 6.140 Hearn v O’Rourke (2003) 129 FCR 64 .............................................................................................. 8.900 xxv

Australian Media Law Hearne v Street (2008) 235 CLR 125 ............................................................... 5.730, 5.760, 5.770, 6.20 Heartcheck Australia Pty Ltd v Channel 7 Sydney Pty Ltd [2007] NSWSC 555 ............................. 3.520 Hedley Byrne & Co v Heller & Partners [1964] AC 465 ................................................................. 11.330 Hegarty v Queensland Ambulance Service [2007] QCA 366 ............................................................ 11.20 Hellewell v Chief Constable of Derbyshire [1995] 4 All ER 473; 1 WLR 804 .......... 7.240, 8.520, 8.940 Hemmes v Seven Network Ltd [2000] NSWSC 246 ....................................................................... 3.1370 Henderson v Pioneer Homes Pty Ltd (1980) 29 ALR 597 ............................................................. 13.190 Henderson v Radio Corporation Pty Ltd (1960) 60 SR NSW 576 ................................................... 8.990 Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 79 ALR 83 ................................. 13.340 Henning v Australian Consolidated Press Ltd [1982] 2 NSWLR 374 ................................................. 4.80 Henry v TVW Enterprises Ltd (1990) 3 WAR 474 ................................................................. 3.140, 3.410 Henwood v Harrison (1872) LR 7 CP 606 ....................................................................................... 3.1160 Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 664 .......................................................... 3.200 Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 .......................................................... 3.180 Her Majesty’s Advocate v William Beggs Opinion No 2 of Lord Osborne [2002] SLT 139 ........... 6.160, 6.230 Herald & Weekly Times Ltd v A [2005] VSCA 189; (2005) 160 A Crim R 299 ....... 5.160, 5.170, 5.330, 5.370 Herald & Weekly Times Ltd v Attorney-General (Vic) [2001] VSCA 152 ......................................... 6.270 Herald & Weekly Times Ltd v Buckley (2009) 21 VR 661 .............................................................. 3.1190 Herald & Weekly Times Ltd v Commonwealth (1966) 115 CLR 418 ............................................... 14.20 Herald & Weekly Times Ltd v County Court of Victoria [2000] VSC 280 ........................................ 5.330 Herald & Weekly Times Ltd v Director of Public Prosecutions [2007] VSC 71 ............................... 5.380 Herald & Weekly Times Ltd v Gregory Williams (formerly identified as VAI) (2003) 130 FCR 435 ............................................................................................................................... 5.80, 5.120 Herald & Weekly Times Ltd v Magistrates’ Court of Victoria [1999] 2 VR 672 ......... 5.80, 5.120, 5.280, 5.380 Herald & Weekly Times Ltd v Magistrates’ Court of Victoria [1999] 3 VR 231 ............ 5.20, 5.50, 5.670 Herald & Weekly Times Ltd v Magistrates’ Court of Victoria (2000) 2 VR 346 ................... 5.660, 5.670 Herald & Weekly Times Ltd v Magistrates Court of Victoria [2004] VSC 194 ................................. 5.240 Herald & Weekly Times Ltd v Medical Practitioners Board of Victoria [1999] 1 VR 267 ..... 5.30, 5.160, 5.300, 5.310, 5.320 Herald & Weekly Times Ltd v Mokbel [2006] VSCA 93 .................................................................... 5.330 Herald & Weekly Times Ltd v PQR [2000] VSC 335 ........................................................................ 5.570 Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 ......... 3.670, 3.700, 3.990, 3.1000, 6.780, 6.810, 8.1050 Herald & Weekly Times Ltd v Psychologists’ Registration Board of Victoria [1998] VSC 141 .......................................................................................................................................................... Herald & Weekly Times Ltd v The Guide Dog Owners’ and Friends’ Association [1990] VR 451 ........................................................................................................................................... 7.600 Herald & Weekly Times Ltd v Victoria [2006] VSCA 146 ................................................................. 5.340 Herald & Weekly Times Ltd v Williams (2003) 201 ALR 489 ........................................................... 5.280 Herceg v Hustler 814 F 2d 1017 (5th Cir 1987) ............................................................................. 11.290 Hercules v Phease [1994] 2 VR 411 ........................................................................................ 3.740, 6.80 Hevican v Ruane [1991] 3 All ER 65 ............................................................................................... 11.240 Hewitt v Pacific Magazines Pty Ltd [2009] SASC 323 ...................................................................... 7.600 Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 ................................. 3.990, 3.1000 Hickey v Sunday Newspapers Ltd [2010] IEHC 349 ....................................................................... 8.1040 Highway v Tudor-Stack [2006] NTCA 04 ........................................................................................... 4.200 Hinch v Attorney-General (Vic) (1987) 164 CLR 15; [1987] VR 721 .............. 6.70, 6.100, 6.140, 6.220, 6.680, 6.710, 6.730, 6.740, 6.750, 6.760, 6.950 Hinch v Director of Public Prosecutions [1996] 1 VR 683 ................................................................ 5.570 Hitchcock v John Fairfax Publications Pty Ltd [2007] NSWSC 7 ..................................................... 3.700 Hitchcock v TCN Channel Nine Pty Ltd [2000] NSWSC 198; (2000) Aust Torts Reports 81-550 ............................................................................................................................................ 7.230 Hitchcock v TCN Channel Nine Pty Ltd (No 2) [2000] NSWCA 82 ................................................. 7.230 xxvi

Table of Cases Hoani Te Tukino v Aotea District Maori Land Board [1941] AC 308 .................................................. 4.80 Hodder v Queensland Newspapers Pty Ltd [1994] 1 Qd R 49 ........................................................ 7.580 Hodgson v Imperial Tobacco Ltd [1998] 2 All ER 673 ........................................................................ 5.80 Hogan v Australian Crime Commission (2010) 240 CLR 651 ..................................... 5.80, 5.240, 5.530 Hogan v Hinch (2011) 243 CLR 506 ....... 2.90, 5.10, 5.20, 5.40, 5.50, 5.60, 5.80, 5.100, 5.160, 5.380, 5.440 Hogan v Pacific Dunlop Ltd (1988) 83 ALR 403 ............................................................................... 8.990 Hogan, Re; Ex parte West Australian Newspapers Ltd (2009) 41 WAR 288; [2009] WASCA 221 ................................................................................................................ 5.20, 5.50, 5.670 Holding v Jennings [1979] VR 289 ......................................................................................... 3.730, 4.150 Holiday Concepts Management Pty Ltd v General Television Corp Pty Ltd (unreported, Vic Supreme Court, Beach J, 7 December 1995) ....................................................................... 8.760 Holmdahl v Australian Electoral Commission (No 2) [2012] SASCFC 110 ...................................... 4.620 Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576 ............................................................ 5.730, 5.780 Holt v TCN Channel Nine Pty Ltd [2014] NSWCA 90 ....................................................... 3.1320, 3.1360 Holt v Willing (1913) 9 Tas LR 70 ........................................................................................................ 5.40 Honey v Australian Airlines Ltd (1989) ATPR 40-961 ........................................................................ 8.990 Hope v I’Anson [1901] 18 TLR 201 ................................................................................................... 3.740 Hope v Sir WC Leng and Co (Sheffield Telegraph) Ltd (1907) 23 TLR 243 ....................... 3.820, 3.830 Hopkinson v Lord Burghley (1867) 2 Ch App 447 ............................................................................ 5.730 Hopman v Mirror Newspapers Ltd [1961] SR (NSW) 631 ................................................................ 3.280 Horne v Press Clough Joint Venture (1994) EOC 92-556 ................................................................ 9.360 Horner v Goulburn City Council (unreported, NSW Supreme Court, Levine J, 5 December 1998) ............................................................................................................................ 3.170 Horrocks v Lowe [1974] 1 All ER 662; [1975] AC 135 ........................................................ 3.960, 3.1460 Horwitz Grahame Books Pty Ltd v Performance Publications Pty Ltd [1987] ATPR 48,271 .......................................................................................................................................... 3.1430 Hoser & Kotabi Pty Ltd v The Queen [2003] VSCA 194 ........................................... 6.890, 6.930, 6.940 Hosking v Runting [2005] 1 NZLR 1 ................................................ 8.440, 8.600, 8.620, 8.1020, 8.1040 Hough v London Express Newspaper Ltd [1940] 2 KB 507 ............................................................. 3.130 Houghton v Arms (2006) 225 CLR 553 ............................................................................................. 8.890 Howard v Crowther (1841) 8 M & W 601 .......................................................................................... 3.500 Howe v Harvey [2007] VSC 130 ........................................................................................................ 5.570 Howe v Lees (1910) 11 CLR 361 .................................................................................................... 3.1340 Howland v Blake Manufacturing Co 156 Mass 543; 31 NE 656 (1892) .......................................... 3.470 Huata v Prebble [2004] 3 NZLR 359 ................................................................................................. 4.150 Hubbard v Pitt [1976] QB 142 ................................................................................................ 8.840, 8.870 Hubbard v Vosper [1972] 2 QB 84 .................................................................................................... 7.420 Hudson v Nicholson (1839) 5 M&W 437; 151 ER 185 ..................................................................... 8.700 Hughes v West Australian Newspapers Ltd (1940) 43 WALR 12 .................................................... 3.820 Hugo Rich v Attorney-General (Vic) (1999) 103 A Crim R261 ......................................................... 6.950 Hume v The Council of the King’s School [2010] NSWSC 186 ......................................................... 5.50 Humphries v TWT Ltd (1993) 120 ALR 693 ...................................................................... 3.1320, 3.1330 Hunt v Star Newspaper Co Ltd [1908] 2 KB 309 ................................................................ 3.680, 3.1170 Hunt v Times Newspapers Ltd [2012] EWHC 1220 ........................................................................ 3.1020 Hunter v Canary Wharf Ltd & London Docklands Development Corporation [1997] AC 655 ...................................................................................................................................... 8.660, 8.830 Hutcheson v News Group Newspapers Ltd [2011] EWCA Civ 808 .................................................. 8.570 Hutchins v Maughan [1947] VLR 131 ................................................................................................ 8.650 Hutchison v Robinson (1900) 21 LR (NSW) 130 ................................................................... 3.820, 3.830 Hyde v City of Columbia 637 SW 2d 251 (1982) ................................................... 11.40, 11.210, 11.220

I IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458 ................ 12.20, 12.100, 12.110, 12.180, 12.320 Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 769 ...................................... 5.660, 5.675 xxvii

Australian Media Law Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 776 .................................................. 5.660 Independent Commission Against Corruption v Cornwall (1995) 38 NSWLR 207 .... 7.510, 7.540, 7.570 Independent Management Resources Pty Ltd v Brown [1987] VR 605 ........................................... 7.300 Independent Publishing Co Ltd v Attorney-General of Trinidad and Tobago [2005] 1 AC 90 ................................................................................................................................................... 5.160 Industrial Registrar of New South Wales v The Uniting Church In Australia Property Trust (NSW) [2003] NSWIRComm 387 ...................................................... 5.750, 6.530, 6.550, 6.710 Initial Services Ltd v Putterill [1968] 1 QB 396 ...................................................................... 7.230, 7.330 Interbrew SA v Financial Times Ltd [2002] EWCA Civ 274 .............................................................. 7.660 Interfirm Comparison (Australia) Pty Ltd v Law Society of New South Wales [1975] 2 NSWLR 104 ................................................................................................................................... 7.240 Isaacs v Cook [1925] 2 KB 391 ......................................................................................................... 3.750 Isbey v New Zealand Broadcasting Corporation (No 2) [1975] 2 NZLR 237 .................................. 7.580 Islamic Council of Victoria Inc v Catch the Fire Ministries Inc [2004] VCAT 2510 .......................... 9.490 Ives v State of Western Australia (No 2) [2010] WASC 221 .............................................................. 5.10 Ives v State of Western Australia (No 8) [2013] WASC 277 ............................................................ 3.710

J J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10 ............................. 5.20, 5.80, 5.120, 5.270, 5.280 Jackson v Sterling Industries Ltd (1987) 162 CLR 612 .................................................................... 5.340 Jacobs v Fardig (1999) EOC 93-016 ................................................................................................. 9.360 Jaillet v Cashman 189 NYS 743 (NY SC 1921) .............................................................................. 11.350 Jakudo Pty Ltd v SA Telecasters Ltd (No 2) (1997) 69 SASR 440 .................................... 3.700, 3.1370 Jameel v Wall Street Journal Europe Sprl (No 3) [2007] 1 AC 359 ........ 3.1020, 3.1080, 8.590, 8.1050 James v John Fairfax & Sons Ltd (1986) 4 NSWLR 466 ................................................................ 3.830 James v Meow Media Inc 90 F Supp 2d 798 (WD Ky 2000) ........................................................ 11.300 James v Robinson (1963) 109 CLR 593 ......................................................... 6.100, 6.170, 6.180, 6.200 Jamieson v The Queen (1993) 177 CLR 574 ................................................................................... 3.740 Jarvie v Magistrates’ Court of Victoria [1995] 1 VR 84 ..................................................................... 5.120 Jenal v Milner (1994) 11 WAR 264 ........................................................................................ 8.780, 8.790 Jennings v Buchanan [2005] 2 All ER 273; 2 NZLR 577 ................................. 3.730, 4.30, 4.100, 4.120 Jenoure v Delmege [1891] AC 73 ...................................................................................................... 3.860 John v Associated Newspapers Ltd [2006] EWHC 1611 ................................................................ 8.1040 John Fairfax & Sons Ltd v Cojuangco (1987) 8 NSWLR 145 .......................................................... 7.610 John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346 ........... 3.1080, 7.510, 7.530, 7.580, 7.600, 7.610 John Fairfax & Sons Ltd v Hook (1983) 47 ALR 477 ....................................................................... 3.790 John Fairfax & Sons Ltd v McRae (1955) 93 CLR 351 ................................... 6.40, 6.140, 6.220, 6.770 John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 ....... 5.50, 5.60, 5.100, 5.150, 5.160, 5.170, 5.220, 5.260, 5.310, 5.320, 5.340, 5.350, 6.90 John Fairfax & Sons Ltd v Vilo (2001) 52 NSWLR 373 ................................................................. 3.1040 John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1992) 26 NSWLR 131 .............. 5.60, 5.80, 5.100, 5.110, 5.120, 5.160, 5.250, 5.260, 5.280, 5.320, 5.340 John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 158 FLR 81; [2000] NSWCA 198 ............................................................................... 2.90, 3.990, 5.40, 5.60, , 6.7506.780 John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344 ...... 5.50, 5.60, 5.100, 5.160, 5.170, 5.240, 5.370, 6.120, 6.790 John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81; 130 ALR 488 ...... 6.700, 6.730, 6.750, 6.780, 6.950, 8.120, 8.140 John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291 ............................... 3.140, 3.170, 3.340 John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484 ......................................... 3.1040 John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 ....................................................... 3.710 John Fairfax Publications Pty Ltd v Kazak [2002] NSWADTAP 35 .................................................... 9.90 John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164 ....................................... 6.780, 6.810 John Fairfax Publications Pty Ltd v Obeid (2005) 64 NSWLR 485 ................................................. 3.450 xxviii

Table of Cases John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 ....................................................... 3.450 John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 ............ 5.20, 5.40, 5.50, 5.170, 5.670 John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 ...................................................... 3.700 John Holland Group Pty Ltd v John Fairfax Publications Pty Ltd (2006) 204 FLR 290 ................. 3.700 Johns v Australian Securities Commission (1992) 35 FCR 16 ......................... 6.80, 6.220, 6.280, 6.370 Johns v Australian Securities Commission (1993) 178 CLR 408 .............................................. 7.50, 8.70 Johnson, Re (1887) 20 QBD 68 ............................................................................................. 6.820, 6.920 Johnston v Cameron (2002) 195 ALR 300 ............................................................................. 5.120, 5.280 Johnstone v Australian Broadcasting Commission (1993) 113 FLR 307 .......................................... 3.320 Jones v Commonwealth (1966) 112 CLR 206 ................................................................................... 14.20 Jones v JB Lippincott Co 694 F Supp 1216 (1988) ........................................................................ 11.280 Jones v Scully (2002) 120 FCR 243 ........................................................................................ 9.50, 9.360 Jones v Skelton [1963] SR (NSW) 644; [1963] 1 WLR 1362; [1963] 3 All ER 952 ............. 3.90, 3.100, 3.300, 3.1130 Jones v Sutton (2004) 61 NSWLR 614 ........................................................................................... 3.1280 Jones v TCN Channel Nine Pty Ltd [2014] NSWSC 1453 ............................................................... 3.710 Jones v The Bible Believers Church [2007] FCA 55 ........................................................................... 9.70 Jones v Toben [2002] FCA 1150 .................................................................... 9.40, 9.50, 9.60, 9.70, 9.80 Jones v Trad [2011] NSWADTAP 19 ................... 9.40, 9.150, 9.220, 9.270, 9.290, 9.300, 9.320, 9.340 Jones v Trad (2013) 86 NSWLR 241 ..................................................... 9.40, 9.140, 9.150, 9.270, 9.340 Jones, Ex parte (1806) 13 Ves 237; 33 ER 283 ............................................................................... 6.140 Jones, Alleged Contempt of Court, Re [2013] EWHC 2579 ............................................................... 6.20 Joyce v Sengupta [1993] 1 All ER 897 ............................................................................................ 3.1460 Justice, Minister for v West Australian Newspapers Ltd [1970] WAR 202 ....................................... 6.760

K Kalaba v Commonwealth [2004] FCA 763 ......................................................................................... 8.650 Kamm v Channel Seven Sydney [2005] NSWSC 699 ...................................................................... 6.950 Kane v Quigley 203 NE 2d 338 (Ohio 1964) .................................................................................... 8.470 Kaye v Robertson (1991) 19 IPR 147; [1991] FSR 62 ...... 3.1460, 8.510, 8.550, 8.920, 8.1030, 8.1040 Kazak v John Fairfax Publications Ltd [2000] NSWADT 77 ....... 9.30, 9.90, 9.100, 9.110, 9.120, 9.130, 9.140, 9.180, 9.270, 9.290, 9.300 Keen Mar Corp v Labrador Park Shopping Centre Pty Ltd (1989) ATPR 46-048 ........................... 13.80 Keft v Fraser (unreported, WA Supreme Court (Full Court), 21 April 1985) .................................... 9.800 Kelly v John Fairfax Publications Pty Ltd [2003] NSWSC 586 ......................................................... 3.170 Kelly-Country v Beers (2004) 181 FLR 352 ........................................... 9.80, 9.240, 9.290, 9.300, 9.320 Kemsley v Foot [1952] AC 345 ................................................................. 3.1130, 3.1150, 3.1160, 3.1170 Kennett v Farmer [1988] VR 991 ......................................................... 3.700, 3.880, 3.900, 3.910, 3.920 Kenrick & Co v Lawrence & Co (1890) 25 QBD 99 ......................................................................... 12.20 Kenyon v Eastwood (1888) 57 LJQB 455 ........................................................................................... 5.10 Kerr v O’Sullivan [1955] SASR 204 ................................................................................................... 6.260 Kerrisk v The North Queensland Newspaper Co Ltd [1992] 2 Qd R 398 ....................................... 7.580 Khan v Commissioner, Department of Corrective Services [2002] NSWADT 131 ............... 9.210, 9.220 Khashoggi v IPC Magazines Ltd [1986] 1 WLR 1412 ...................................................................... 3.690 Khashoggi v Smith (1980) 124 Sol J 149 .......................................................................................... 7.360 Khorasandjian v Bush [1993] 3 WLR 476 ................................................................... 8.660, 8.830, 8.870 Kidman v Page [1959] Qd R 53 ......................................................................................................... 8.810 Kielley v Carson (1842) 4 Moo PC 63; 13 ER 225 .......................................................................... 4.230 Kilbourn v Thompson 103 US 168 (1880) ......................................................................................... 4.230 King v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1244 ......................................... 3.710 King v R (1876) 2 VLR 17 .................................................................................................. 3.1470, 3.1480 King v Sunday Newspapers Ltd [2011] NICA 8 ................................................................... 8.560, 8.1040 King-Ansell v Police [1979] 2 NZLR 531 ........................................................................................... 9.210 King and Mergen Holdings v McKenzie (1991) 24 NSWLR 305 .................................................... 3.1280 Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd (No 2) [2014] WASC 408 ................... 3.300 xxix

Australian Media Law Kingswell v The Queen (1985) 159 CLR 264 ................................................................................... 6.100 Knupffer v London Express Newspaper Ltd [1944] AC 116 .................................................. 3.320, 3.410 Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 ..................................................................... 11.20 Kondis v State Transport Authority (1994) 154 CLR 672 .................................................................. 11.20 Konskier v Goodman [1928] 1 KB 421 .............................................................................................. 8.700 Korczynski v Weslofts (Aust) Pty Ltd (1986) ATPR 40-643 ............................................................ 13.210 Kracke v Mental Health Review Board [2009] VCAT 646 ................................................................... 2.90 Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536 ........................... 3.130, 3.180, 3.440, 3.490 Kunhi v University of New England [2008] NSWADT 333 ................................................................ 9.210 Kuringai Co-operative Building Society (No 12) Ltd, Re (1978) 36 FLR 134 .................................. 13.50 Kwok Fu Shing v Thang [1999] NSWSC 1034 ................................................................................. 7.130

L L v G [2002] DCR 234 ........................................................................................................................ 8.600 LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490 .................. 8.720 Lackey v Mae [2013] FMCAfam 284 ................................................................................................. 6.810 Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 All ER 465 .......................... 12.70, 12.100 Lade v Black [2006] QCA 294 .............................................................................................................. 6.20 Laen Pty Ltd v At the Heads Pty Ltd [2011] VSC 315 ..................................................................... 5.780 Lake v King (1667) 1 Wms 131; 85 ER 128 ..................................................................................... 4.150 Lamb v Cotogno (1987) 164 CLR 1 ................................................................................................ 3.1340 Lane v Registrar of the Supreme Court of New South Wales (1981) 148 CLR 245 ...................... 6.140 Lang v Australian Consolidated Press Ltd [1970] 2 NSWR 408 ........................................... 3.100, 3.670 Lange v Atkinson [2000] 3 NZLR 385 .................................................................................................. 2.90 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 ...... 1.10, 2.90, 2.100, 3.860, 3.970, 3.990, 3.1000, 3.1010, 3.1100, 4.170, 5.40, 5.790, 6.780, 7.630, 9.30 Lange v Willis (1934) 52 CLR 637 ..................................................................................................... 3.970 Langer v Commonwealth (1996) 186 CLR 302 ....................................................................... 2.90, 5.790 Laurance v Katter (1996) 141 ALR 447 ................................................... 3.730, 4.80, 4.90, 4.130, 4.170 Law Institute of Victoria v Nagle [2005] VSC 35 ................................................................................. 6.20 Lawrie v NT News Services Pty Ltd (1985) 82 FLR 70 ................................................................. 3.1360 Lear v Malter (unreported, NSW Supreme Court, Donovan AJ, 14 March 1997) ......................... 3.1080 Lee v NSW Crime Commission (2013) 302 ALR 363 ......................................................................... 6.80 Lee v News Group Newspapers Ltd [2010] NIQB 106 ................................................................... 8.1040 Lee v Wilson (1934) 51 CLR 276 .................................................................. 3.290, 3.380, 3.390, 3.1250 Legal Practitioners Conduct Board v Viscariello (No 2) [2013] SASCFC 47 ................................... 5.470 Lemmon v Webb [1895] AC 1 ............................................................................................................ 8.880 Lend Lease (Millers Point) Pty Limited v Barangaroo Delivery Authority [2013] NSWSC 1848 ............................................................................................................................................... 5.440 Lennon v Newsgroup Newspapers Ltd [1978] FSR 573 ................................................................... 7.100 Lennox v Krantz (1978) 19 SASR 273 ............................................................................................ 3.1370 Leslie v Mirror Newspapers Ltd (1971) 125 CLR 332 ........................................................... 3.820, 3.830 Lever v Murray (unreported, NSW Supreme Court, 5 December 1992) .......................................... 3.410 Levy v Victoria (1997) 189 CLR 579 ............................................................................. 2.90, 3.990, 5.790 Lew v Herald & Weekly Times Ltd [1999] 1 VR 313 ........................................................................ 7.580 Lew v Priester (No 2) [2012] VSC 153 .............................................................................................. 5.170 Lewin v McCreight 655 F Supp 282 (1987) ..................................................................................... 11.280 Lewincamp v ACP Magazines Ltd (No 3) [2008] ACTSC 81 ..................... 3.790, 3.960, 3.1000, 3.1170 Lewis v Daily Telegraph Ltd [1964] AC 234 ........................... 3.100, 3.120, 3.130, 3.280, 3.670, 3.1320 Lewis v Judge Ogden (1984) 153 CLR 682 ............................................................................ 6.20, 6.220 Li v Herald & Weekly Times Pty Ltd [2007] VSC 109 ...................................................................... 3.700 Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283 ................................... 5.730, 5.780 Lincoln v Daniels [1962] 1 QB 237 .................................................................................................... 3.740 Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457 .................. 8.680, 8.730, 8.750, 8.760 Linter Group Ltd (in liq) v Price Waterhouse [2000] VSC 90 ........................................................... 5.675 Lion Laboratories Ltd v Evans [1984] 2 All ER 417 ................................................... 7.330, 7.340, 7.360 xxx

Table of Cases Literature Board of Review v Invincible Press [1955] St R Qd 525 ................................................. 9.540 Literature Board of Review v Kenmure Press Pty Ltd [1972] Qd R 346 .................. 9.540, 9.570, 9.580 Liu v The Age Company Ltd [2010] NSWSC 1176 ........................................................................... 7.540 Liu v The Age Company Ltd [2011] NSWSC 53 .................................................................... 7.540, 7.600 Liu v The Age Company Ltd [2012] NSWSC 12 ..................... 6.780, 7.540, 7.570, 7.590, 7.600, 7.620 Liverpool City Council v Palerma Pty Ltd [2008] NSWLEC 311 ....................................................... 7.450 Livingstone-Thomas v Associated Newspapers Ltd (1969) 90 WN (NSW) 223 ............................ 3.1510 Llewellyn v Nine Network Australia Pty Ltd [2006] FCA 836 ............................................................ 5.675 Lloyd v David Syme & Co Ltd [1986] AC 350 .................................................................................. 3.420 Lockwood v Commonwealth (1954) 90 CLR 177 ................................................................................ 6.80 London Artists Ltd v Littler [1969] 2 QB 375 ......................................................... 3.1160, 3.1170, 3.1240 London Association for the Protection of Trade v Greenslands Ltd [1916] 2 AC 15 ...................... 3.860 Lonrho, In re [1990] 2 AC 154 ........................................................................................................... 6.510 Lord Ashburton v Pape [1913] 2 Ch 469 ........................................................................................... 7.410 Lorigan v The Queen [2012] NZCA 264 ............................................................................................ 8.620 Loti Tuqiri v Australian Rugby Union Ltd [2009] NSWSC 781 .............................................. 5.310, 5.675 Louis Vuitton Malletier SA v Design Elegance Pty Ltd (2006) 225 ALR 541 .................................... 6.20 Loutchansky v Times Newspapers Ltd (No 2) [2002] QB 783 ........................................................... 3.60 Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 ......................... 3.860, 3.880, 3.920, 3.1290, 4.40 Lowe v Associated Newspapers Ltd [2007] QB 580 ....................................................................... 3.1130 Lucas-Box v News Group Newspapers [1986] 1 WLR 147 .............................................................. 3.690 Lyon v Daily Telegraph [1943] KB 746 ................................................................................ 3.1110, 3.1160 Lysaght v Edwards (1876) 2 Ch D 499 ........................................................................................... 15.260

M MIM Ltd v Pusey (1971) 125 CLR 383 ............................................................................................ 11.240 MacDougall v Knight (1886) 17 QBD 636 ......................................................................................... 3.830 MacDougall v Knight (1890) 25 QBD 1 ............................................................................................. 3.830 Mackay v Gordon & Gotch (Australasia) Ltd [1959] VR 420 ................................................ 9.540, 9.590 Mackinlay v Wiley [1971] WAR 3 ..................................................................... 9.540, 9.570, 9.610, 9.620 Macks, Re; Ex parte Saint (2000) 204 CLR 158 .............................................................................. 5.340 Macquarie Bank Ltd v Berg [1999] NSWSC 526 ............................................................................ 3.1370 Macquarie Media Holdings Ltd v Australian Communications and Media Authority (2009) 173 FCR 582 ................................................................................................................................. 15.90 Madden v Seafolly Pty Ltd [2014] FCAFC 30 ........................................................... 3.700, 3.880, 3.1170 Mafart v Television New Zealand Ltd (2006) 3 NZLR 18 ................................................................. 5.670 Maisel v Financial Times Ltd [1915] 3 KB 336 ................................................................................. 3.680 Makita (Australia) Pty Ltd v Black & Decker (Australasia) Pty Ltd (1990) ATPR 41-030 ................ 13.40 Makudi v Baron Triesman Of Tottenham [2014] EWCA (Civ) 179 ............................... 4.40, 4.100, 4.120 Malone v Commissioner of Police of the Metropolis (No 2) [1979] 2 All ER 620 ................ 7.240, 7.360 Malone v Laskey [1907] 2 KB 141 ..................................................................................................... 8.810 Mandla v Dowell Lee [1983] 1 All ER 1062 ............................................................... 9.190, 9.200, 9.230 Mann v O’Neill (1997) 191 CLR 204 ................................................................................................. 3.740 Mann, Re; Re King (1911) VLR 171 .................................................................................................. 5.840 Maple v David Syme & Co Ltd [1975] 1 NSWLR 97 .......................................................................... 3.40 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 ................................................... 11.90, 11.130 Marsden v Amalgamated Television Services Pty Ltd [2000] NSWSC 465 ..................................... 8.250 Martin v The Queen [2010] VSCA 153 .............................................................................................. 6.790 Martin v Trustrum [2003] TASSC 50 ............................................................................. 5.80, 6.880, 6.920 Martin v Trustrum (No 3) [2003] TASSC 80 ...................................................................................... 6.950 Matthews v ASIC [2009] NSWCA 155 ................................................................................................. 6.20 Matthews v R (No 2) [2013] NSWCCA 194 ...................................................................................... 5.420 Matthews and Ford, Re [1973] VR 199 ............................................................................................. 5.820 Mawe v Pigott (1869) Ir 4 CL 54 ............................................................................................ 3.130, 3.180 Maxwell v Director of Public Prosecutions [1935] AC 309 ................................................................ 6.470 Maxwell v Pressdram Ltd [1987] 1 All ER 656 .................................................................................. 7.530 xxxi

Australian Media Law Maynes v Casey [2010] NSWDC 285 ................................................................................................ 8.650 Maynes v Casey [2011] NSWCA 156 ................................................................................................ 8.650 McCabe v British American Tobacco Australia Services Ltd [2002] VSC 150 .......... 5.660, 5.730, 5.770 McCauley v John Fairfax & Sons Ltd (1933) 34 SR (NSW) 339 ......................................... 3.450, 3.670 McClure v Mayor & Councillors of the City of Stirling [2008] WASC 286 ......................................... 2.90 McCollum v CBS Inc 249 Cal Rptr 187 (1988) ............................................................................... 11.310 McCormick v John Fairfax & Sons (1989) 16 NSWLR 485 ............................................................. 3.430 McCully v Whangamata Marina Society Inc [2007] 1 NZLR 185 ............................................ 4.40, 5.670 McDonald v North Queensland Newspaper Co Ltd [1997] 1 Qd R 62 ................................ 3.140, 8.990 McDonald’s System of Australia Pty Ltd v McWilliam’s Wines Pty Ltd (1979) 41 FLR 436 .................................................................................................................................. 13.170, 13.180 McGinty v Western Australia (1996) 134 ALR 289 .............................................................................. 2.90 McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633 .............................................................. 2.90 McGuinness v Attorney-General (Vic) (1940) 63 CLR 73 ............................................ 6.80, 7.510, 7.580 McGuirk v University of NSW [2009] NSWSC 1058 .............................................................. 6.820, 6.930 McKennitt v Ash [2005] EWHC 3003 .................................................................................. 8.1040, 8.1050 McKennitt v Ash [2008] QB 73 .................................................................................. 8.560, 8.570, 8.1040 McKenzie v Magistrates’ Court (Vic) [2013] VSC 2 .......................................................................... 7.540 McKenzie v Magistrates’ Court (Vic) [2013] VSCA 81 ........................................................... 7.510, 7.540 McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 ............................................... 7.40 McLean v David Syme & Co Ltd (1970) 92 WN (NSW) 611 ........................................................... 3.480 McLeod v St Aubyn [1899] AC 549 ................................................................. 6.140, 6.810, 6.820, 6.830 McLoughlin v O’Brian [1983] AC 410 ............................................................................................... 11.240 McManus and Harvey [2007] VCC 619 ............................................................................................. 7.560 McPherson v McPherson [1936] AC 177 .......................................................................... 5.10, 5.60, 5.80 Meckiff v Simpson [1968] VR 62 .......................................................................................................... 3.40 Medical Benefits Fund of Australia Ltd v Cassidy (2003) 135 FCR 1 .............................. 13.360, 13.370 Medical Board of South Australia v AYHT [2001] SADC 25 ............................................................. 5.470 Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151 .......................... 5.160 Mees v Roads Corporation (2003) 128 FCR 418 ................................................. 4.30, 4.80, 4.90, 4.100 Melbourne University Student Union Inc (In Liq) v Ray [2006] VSC 205 ...... 6.140, 6.220, 6.530, 6.550 Melvin v Reid 112 CA 285 (1931) ...................................................................................................... 8.480 Meriton Apartments Pty Ltd v SBS Corp [2002] NSWSC 915 ....................................................... 3.1370 Merivale v Carson (1887) 20 QBD 275 ............................................................................................ 3.1160 Mersey Care NHS Trust v Ackroyd (No 2) [2007] EWCA Civ 101 ................................................... 7.660 Meskanas v ACP Publishing Pty Ltd (2006) 70 IPR 172 ................................................................ 12.190 Metropolitan International Schools Ltd v Designtechnica Corp [2009] EWHC 1765 ....................... 6.160 Metropolitan International Schools Ltd v Designtechnica Corp [2011] 1 WLR 1743 ....................... 3.560 Metz Holdings Pty Ltd v Simmac Pty Ltd (No 1) [2011] FCA 263 ................................................... 8.400 Middle East Airlines Airliban SAL v Sungravure Pty Ltd [1974] 1 NSWLR 323 ................... 3.120, 3.400 Miller v California 413 US 15 (1973) ...................................................................................... 9.590, 11.40 Miller v Fiona’s Clothes Horse of Centrepoint (1989) ATPR 40-963 .............................................. 13.250 Miller v Mieson (1991) Eq Opp Cases 92-341 .................................................................................. 9.190 Miller v Miller (1978) 141 CLR 269 ...................................................................................................... 8.80 Miller v National Broadcasting Co 187 Cal App 3d 1463 (Cal Ct App 1986) .................................. 8.470 Miller v TCN Channel Nine (1986) 161 CLR 556 ............................................................................... 2.90 Miller v TCN Channel Nine (1988) 36 A Crim R 92 .... 8.190, 8.200, 8.210, 8.230, 8.240, 8.250, 8.260, 8.270, 8.310, 8.320, 8.330, 8.350 Miller v Warner Bros 492 SE 2d 353 (1997) ................................................................................... 11.300 Miller v Wertheim [2002] FCAFC 156 ................................................................................................ 9.210 Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357 ......................................................................................................................................... 13.40 Mills v Townsville City Council (No 2) [2003] QPEC 18 ............................................ 6.820, 6.830, 6.880 Minarowska v The Queen (1995) 83 A Crim R 78 ............................................................................ 5.820 Minter v Priest [1930] AC 558 ............................................................................................................ 3.740 Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 ............................................................ 3.1340 xxxii

Table of Cases Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 ........................................... 3.120, 3.280, 3.670 Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1 .......................................................................... 6.40 Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 ................................... 3.140, 3.170 Mistral Inc v CBS 402 NYS 2d 815 (1978) ....................................................................................... 8.470 Mizikovsky v Queensland Television Ltd [2014] 1 Qd R 197 ........................................................... 3.710 Moage Ltd v Jagelman [2002] NSWSC 953 ...................................................................................... 5.780 Modbury Triangle v ANZIL (2000) 205 CLR 254 ............................................................................. 11.320 Monis v The Queen (2013) 249 CLR 92 ............................................................................................. 2.90 Monson v Tussauds Ltd [1894] 1 QB 671 ........................................................................................... 3.70 Moore v News of the World Ltd [1972] 1 QB 441 .......................................................................... 3.1290 Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414 .... 7.50, 8.710, 8.990, 12.60 Moran v Schwartz Publishing Pty Ltd [2014] WASC 334 ............................................................... 3.1370 More v Weaver [1928] 2 KB 520 ....................................................................................................... 3.740 Morgan v John Fairfax & Sons Ltd (No. 2) (1991) 23 NSWLR 374 .............................................. 3.1060 Morgan v Lingen (1863) 8 LT 800 ..................................................................................................... 3.140 Morgan v Odhams Press Ltd [1971] 1 WLR 1239 ................................................................ 3.120, 3.320 Morgan v Television New Zealand Ltd (unreported, New Zealand High Court, Holland J, 1 March 1990) ............................................................................................................................... 8.600 Moriarty v Brooks (1834) 6 C & P 684 .............................................................................................. 8.770 Moriarty and Wortley v Advertiser Newspapers Ltd (1998) 198 LSJS 31 ........................................ 3.990 Moriarty and Wortley v Advertiser Newspapers Ltd [1998] SADC 3843 ........................................ 3.1000 Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418 .......................... 3.270, 3.280, 3.290 Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 ........................... 3.870, 3.1080, 3.1280, 3.1360 Mosley v News Group Newspapers Ltd [2008] EWHC 1117 .......... 8.560, 8.570, 8.590, 8.1040, 8.1050 Mosley v United Kingdom [2011] ECHR 774 ..................................................................................... 8.570 Moss v Christchurch Rural District Council [1925] 2 KB 750 ........................................................... 8.860 Moti v R (2011) 245 CLR 456 .............................................................................................................. 5.20 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 .............................................................. 11.20, 11.70 Mowlds v Fergusson (1939) 40 SR (NSW) 311 .............................................................................. 3.1010 Mowlds v Fergusson (1946) 64 CLR 206 .......................................................................................... 3.880 Muir v Commissioner for Inland Revenue [2004] NZCA 277 ............................................................ 5.160 Mulholland v Australian Electoral Commission (2003) 128 FCR 523 ................................................. 2.90 Muller v Hatton [1952] St R Qd 150 .................................................................................................. 3.960 Mundey v Askin [1982] 2 NSWLR 369 ......................................................................... 3.210, 3.730, 4.80 Munro v Southern Dairies Ltd [1955] VLR 332 ................................................................................. 8.810 Murray v Express Newspapers Plc [2009] Ch 481 .............................................................. 8.560, 8.1040 Musgrave v Commonwealth (1937) 57 CLR 514 .............................................................................. 8.270 Mutch v Sleeman (1928) 29 SR (NSW) 125 ........................................................................ 3.1160, 8.980 Myerson v Smith’s Weekly Publishing Co (1923) 24 SR (NSW) 20 .............................................. 3.1130

N NAB v Serco [2014] EWHC 1225 ...................................................................................................... 5.670 NR v MR [2014] NZHC 863 ............................................................................................................... 8.610 NRMA v John Fairfax Publications Pty Ltd [2002] NSWSC 563 ............................... 7.590, 7.630, 7.650 NRMA Insurance Ltd v B&B Shipping and Marine Salvage Co Ltd (1947) 47 SR (NSW) 273 ................................................................................................................................................. 8.660 NW Frozen Foods Pty Ltd v ACCC (1996) 71 FCR 285 ................................................................ 13.350 Nagle v Chulov [2001] NSWSC 9 ...................................................................................................... 7.590 Named Person v Vancouver Sun [2007] 3 SCR 253 .......................................................................... 5.20 Nanan v The State [1986] AC 860 ..................................................................................................... 5.820 National Australia Bank Ltd v Juric [2001] VSC 375 ........................................................................... 6.20 National Companies and Securities Commission v Brierley Investments Ltd (1988) 14 NSWLR 273 ................................................................................................................................. 15.220 National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd [1989] VR 747 .................................................................................................................................... 3.1370, 6.280 xxxiii

Australian Media Law National Rugby League Investments Pty Ltd v Singtel Optus Pty Ltd (2012) 201 FCR 147 ............................................................................................................................................... 12.430 National Union of General & Municipal Workers v Gillian [1946] KB 81 ......................................... 3.530 Nationwide News Pty Ltd v Australian Broadcasting Corporation [2005] NSWSC 945 ....... 7.230, 7.410 Nationwide News Pty Ltd v Copyright Agency Ltd (1996) 65 FCR 399 ........................................ 12.120 Nationwide News Pty Ltd v District Court (NSW) (1996) 40 NSWLR 486 ...... 5.80, 5.260, 5.310, 5.320 Nationwide News Pty Ltd v Farquharson (2010) 28 VR 473 ......................... 5.210, 5.240, 6.220, 6.790 Nationwide News Pty Ltd v International Financing & Investment Pty Ltd [1999] WASCA 95 ................................................................................................................................................... 3.990 Nationwide News Pty Ltd v Moodie (2003) 28 WAR 314 ................................................................. 3.700 Nationwide News Pty Ltd v Rogers [2002] NSWCA 71 .................................................................... 3.830 Nationwide News Pty Ltd v Wiese (1990) 4 WAR 263 ..................................................................... 3.790 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 .... 2.90, 3.970, 6.810, 6.820, 6.830, 6.880, 6.930, 6.940 Neal v Sunday News Auckland Newspaper Publications (1985) Eq Opp Cases 92-130 .... 9.140, 9.180 Netcomm (Australia) Pty Ltd v Dataplex Pty Ltd (1988) 81 ALR 101 ............................................ 13.230 Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273 ........................ 12.120, 12.330 Nevill v Fine Art & General Insurance Co Ltd [1897] AC 68 ............................................................ 3.170 Neville v Lewis [1965] NSWR 1571 ................................................................................................... 9.540 New Brunswick Broadcasting v Nova Scotia (1993) 1 SCR 319 ....................................................... 4.20 New South Wales Aboriginal Land Council v Jones (1998) 43 NSWLR 300 .................................. 3.540 New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 ................................. 6.50, 6.950 New York Times v Sullivan 376 US 254 (1964) ........................................................... 2.80, 3.990, 11.40 Newman v Phillips Fox (a firm) (1999) 21 WAR 309 ........................................................................ 7.250 News Corp Ltd, Re (1987) 15 FCR 227 ............................................................................ 15.220, 15.260 News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248 ....... 5.160, 5.190, 5.200, 5.210, 5.290, 5.540, 6.160, 6.230, 6.790, 6.950 News Media Ownership Ltd v Finlay [1970] NZLR 1089 .................................................................. 3.960 Nguyen v The Magistrates’ Court of Victoria [1994] 1 VR 88 .......................................................... 5.590 Nicholls v Director of Public Prosecutions (1993) 61 SASR 31 ..................... 6.950, 7.510, 7.530, 7.540 Nichols v Simmonds and Royal Aero Club [1975] WAR 1 ............................................................. 11.280 Nine Network Australia Pty Ltd v Australian Broadcasting Authority (1997) 143 ALR 8 ............. 14.1230 Nixon v Warner Communications Inc 435 US 589 .............................................................................. 5.50 Norris v Gittos [2011] WASC 295 ..................................................................................................... 11.330 North Australian Aboriginal Legal Aid Service Inc v Bradley (2001) 188 ALR 312 ............. 6.530, 6.540, 6.550, 6.670, 6.710, 6.750 North Queensland Newspaper Co Ltd v Kendell (unreported, Qld Court of Appeal, 12 May 1994) .................................................................................................................................... 3.1340 Northern Land Council v Olney (1992) 34 FCR 470 ......................................................................... 9.230 Norton v Hoare (No 1) (1913) 17 CLR 310 ....................................................................................... 3.880 Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133 .............................. 7.590 Novotny v Cropley [2005] NSWCA 26 .................................................................................... 6.530, 6.550 Ntuli v Donald [2011] 1 WLR 294 ............................................................................. 8.560, 8.570, 8.1040 Nulyarimma v Thompson (1999) 96 FCR 153; 165 ALR 621 ........................................................... 3.990

O O’Brien v Northern Territory [2002] NTSC 10 ...................................................................................... 5.60 O’Chee v Rowley (1997) 150 ALR 199 ......................................................................... 3.730, 4.90, 4.160 O’Connor v Waldron [1935] AC 76 ..................................................................................................... 3.740 O’Grady v Superior Court 139 Cal App 4th ....................................................................................... 7.520 O’Malley v Elder (1876) 2 VLR (L) 39 ............................................................................................... 3.130 O’Shane v Burwood Local Court [2007] NSWSC 1300 .................................................................... 5.120 O’Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166 ....................................... 3.1130, 3.1150 O’Sullivan v Truth and Sportman Ltd (1957) 96 CLR 220 ................................................................ 8.280 Obermann v ACP Publishing Pty Ltd [2001] NSWSC 1022 .................................................. 3.140, 8.990 xxxiv

Table of Cases Obsidian Finance Group, LCC v Cox (Nos. 12-35238 & 35319 (9th Cir. 17 January 2014) .............................................................................................................................................. 7.520 Office of Government Commerce v Information Commissioner [2008] EWHC 737 ........................... 4.80 Office of Government Commerce v Information Commissioner [2010] QB 98 .................................. 4.20 Ogle v Strickland (1987) 13 FCR 306 ............................................................................................... 9.440 Olivia N v NBC 126 Cal App 3d 488 (Cal CA 1981) ...................................................................... 11.300 Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) Inc (2002) 120 FCR 191 .................................................................................................... 3.1460 Orr v Isles [1965] NSWR 677 .......................................................................................................... 3.1310 Othman v English National Resistance [2013] EHWC 1421 ............................................................. 8.560 Owen v Menzies [2013] 2 Qd R 327 ........................................................................................ 9.30, 9.520 O’Chee v Rowley (1995) 150 ALR 199 ............................................................................................. 4.150 O’Shane v Harbour Radio Pty Ltd (2013) 85 NSWLR 698 .............................................................. 3.990

P P v Australian Crime Commission [2008] FCA 1336 ......................................................................... 5.120 P v D [2000] 2 NZLR 591 .................................................................................................................. 8.600 P v D1 (No 3) [2010] NSWSC 644 ...................................................................................................... 5.60 PPP v QQQ as Representative of the Estate of RRR [2011] VSC 186 ................................. 5.50, 5.120 Pacific Film Laboratories Pty Ltd v Federal Commissioner of Taxation (1970) 121 CLR 154 ............................................................................................................................................... 12.230 Packer v Australian Broadcasting Corporation (1993) 116 FLR 306 .............................................. 3.1340 Packer v Peacock (1912) 13 CLR 577 ....................................................................... 6.180, 6.230, 6.760 Packer v Police [2007] SASC 98 ....................................................................................................... 5.470 Palkowski v Ivancic (2009) ONCA 705 ................................................................................................ 5.10 Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 ................................................... 3.1460 Pamplin v Express Newspapers Ltd (No 2) [1988] 1 WLR 116 ..................................................... 3.1360 Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 .......................................................................... 6.20 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 ................... 13.60, 13.70 Parmiter v Coupland (1840) 6 M & W 105 ........................................................................................ 3.140 Peach v Toohey [2003] NTSA 57 ....................................................................................................... 8.800 Peck v United Kingdom (2003) 36 EHRR 41 .................................................................................. 8.1040 Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 ........... 3.580, 3.590, 3.600, 3.610, 3.620, 11.60 Peebles v Honourable Tony Burke [2010] FCA 838 .......................................................................... 4.620 Peek v Channel Seven Adelaide Pty Ltd (2006) 94 SASR 196; 228 ALR 553 ................. 3.990, 8.1050 Peek v New South Wales Egg Corporation (1986) 6 NSWLR 1 ...................................................... 10.20 Peerless Bakery v Watts [1955] NZLR 339 ....................................................................................... 3.750 Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 ..................... 5.250, 5.340, 6.20 Pell v Council of the Trustees of the National Gallery of Victoria [1998] 2 VR 391 ........... 9.370, 9.440, 9.450, 9.540, 9.590 Pennekamp v Florida 328 US 331 (1946) .............................................................................. 6.260, 6.940 Penton v Calwell (1945) 70 CLR 219 .................................................... 3.880, 3.890, 3.900, 3.960, 4.40 Pepper v Hart [1993] AC 593 ..................................................................................................... 4.30, 4.80 Perera v Peiris [1949] AC 1 ............................................................................................................... 3.860 Perez v Fernandez (2012) 260 FLR 1 ............................................................................................. 12.190 Perre v Apand Pty Ltd (1999) 198 CLR 180 ..................................................................................... 11.80 Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 ............... 3.1130, 3.1150, 3.1170, 3.1190 Peters v Cushing [1999] NZAR 241 ................................................................................................... 4.100 Peters v Television New Zealand (TVNZ) [2012] 2 NZLR 466 ......................................................... 3.820 Peterson v Advertiser Newspapers Ltd (1995) 64 SASR 152 .......................................................... 3.990 Philip Morris Ltd and British American Tobacco Australia Ltd and Department of Health and Aging [2011] AATA 215 ............................................................................................................ 4.80 Phillips v Police (1994) 75 A Crim R 480 .......................................................................................... 9.540 xxxv

Australian Media Law Phonographic Performance Co of Australia Ltd v Commercial Radio Australia Ltd (2013) 209 FCR 331; [2013] FCAFC 11 .................................................................................................. 14.50 Pickering v Liverpool Daily Post & Echo Newspapers Plc [1991] 2 AC 370 ................................... 6.560 Pickin v British Railways Board [1974] AC 765 ................................................................................... 4.20 Pico Holdings Inc v Voss [2002] VSC 319 .......................................................................................... 6.20 Pierce v United States 252 US 239 (1920) ......................................................................................... 2.80 Pinniger v John Fairfax & Sons Ltd (1979) 26 ALR 55 .................................................................. 3.1090 Plato Films Ltd v Speidel [1961] AC 1090 ........................................................................... 3.710, 3.1360 Platt v Nutt (1988) 12 NSWLR 231 ................................................................................................... 8.650 Plenty v Dillon (1991) 171 CLR 635 .................................................................................................. 8.730 Police v Campbell [2010] 1 NZLR 483 .............................................................................................. 7.670 Police (NSW), Commissioner of v Mooney (No 3) [2004] NSWADTAP 22 ..................................... 9.360 Police (NSW), Commissioner of v Nationwide News Pty Ltd (2008) 70 NSWLR 643 .......... 5.60, 5.160 Polly Peck (Holdings) Plc v Trelford [1986] QB 1000 ....................................................................... 3.690 Polyukhovich v Commonwealth (1991) 172 CLR 501 ....................................................................... 6.780 Popovic v Herald & Weekly Times Ltd [2002] VSC 174 ..................................................................... 2.90 Popow v Samuels (1973) 4 SASR 594 ........................................................... 9.540, 9.570, 9.600, 9.630 Portillo, Re [1997] 2 VR 723 .............................................................................................................. 5.830 Potts v Moran (1976) 16 SASR 284 .................................................................................................. 3.690 Power, Ex Parte; Re Devereaux (1957) SR (NSW) 253 ..................................................................... 6.40 Prebble v Television New Zealand Ltd [1995] 1 AC 321 ................. 3.730, 4.30, 4.40, 4.80, 4.90, 4.140 Prichard v Krantz (1984) 37 SASR 379 ................................................................................... 3.90, 3.120 Prime Finance Pty Ltd v Randall [2009] NSWSC 361 ...................................................................... 5.750 Prince Albert v Strange (1849) 1 Mac & G 25; 41 ER 1171 ................................................ 7.240, 7.330 Prince Jefri Bokiah KPMG (a firm) [1999] 2 AC 222 ........................................................................ 7.250 Prince of Wales v Associated Newspapers Ltd [2006] EWHC 522 ................................................ 8.1040 Prior v Lansdowne Press Pty Ltd [1977] VR 65 ............................................................................. 12.180 Proceeding No 1496 of 1956, In the Matter of [2010] VSC 192 ...................................................... 5.675 Proceeding No 291 of 1944, In the Matter of [2006] VSC 50 .......................................................... 5.675 Progressive Enterprises Ltd v North Shore City Council [2006] 2 NZLR 262 ................................. 6.550 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490 ........... 14.1040, 14.1100 Prothonotary v Collins (1985) 2 NSWLR 549 ......................................................................... 6.110, 6.140 Prothonotary of the Supreme Court of New South Wales v Katelaris [2008] NSWSC 389 ............. 6.90, 6.820, 6.920 Prothonotary of the Supreme Court of New South Wales v Rakete [2010] NSWSC 5 ....... 5.610, 5.620 Prudential Assurance Co Ltd v Fountain Page Ltd [1991] WLR 756; 3 All ER 878 ............ 5.730, 5.780 Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) [1982] Ch 204 ............................... 5.660 Pullman v Walter Hill and Co Ltd [1891] 1 QB 524 .......................................................................... 3.440 Puxu Pty Ltd v Parkdale Custom Built Furniture Pty Ltd (1980) 31 ALR 73 ................................... 13.70

Q Queensland Law Society Incorporated, Ex parte [1984] 1 Qd R 166 .................................... 5.60, 5.170 Quilty v Windsor (1999) SLT 346 ....................................................................................................... 3.170

R R R R R R R R

v A [2008] VSC 73 .......................................................................................................................... 5.190 v Almon (1765) Wilm 243; 97 ER 94 ................................................................................. 6.100, 6.810 v Armstrong [1922] 2 KB 555 ............................................................................................. 5.810, 5.820 v Arrowsmith [1950] VLR 78 ................................................................................................. 6.50, 6.560 v Australian Broadcasting Corporation [1983] Tas R 161 ...................................... 6.390, 6.610, 6.630 v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 ............................. 15.260 v Avent (unreported, Vic Court of Appeal of Supreme Court, Phillips CJ, Callaway JA and McDonald, JA, 22 December 1995) ...................................................................................... 5.620 R v Barrass (unreported, WA Court of Petty Sessions, No 27602 of 1989) ................................... 7.550 R v Barrass (unreported, WA District Court, Kennedy J, 7 August 1990) ....................................... 7.550 R v Benbrika [2009] VSC 142 ............................................................................................................ 6.790 xxxvi

Table of Cases R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R

v v v v v v v v

Bossone (unreported, Qld Supreme Court, 18 September 1930) ............................................. 10.60 Brett [1950] VLR 226 ................................................................................................................... 6.890 Brislan; Ex parte Williams (1935) 54 CLR 262 .......................................................................... 14.20 Budd (unreported, Qld Supreme Court, Dowsett J, 20 March 1993) ........................................ 7.540 Cameron [1966] 4 Can Crim Cas 273 ........................................................................................ 9.570 Castro, Onslow & Whalley’s Case (1873) LR 9 QB 219 ........................................................... 6.320 Chaytor [2011] 1 AC 684 ................................................................... 4.20, 4.30, 4.140, 4.150, 4.220 Chief Metropolitan Stipendiary Magistrate; Ex parte Choudhury [1991] 1 QB 429 ...... 9.370, 9.420, 9.430, 10.40, 10.50, 10.80 v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society [1984] QB 227 ............................................................................................................................... 5.70, 15.480 v Clarke; Ex parte Crippen (1910) 103 LT 636 ............................................................................. 6.180 v Clement (1821) 4 B & Ald 218; 106 ER 918 ............................................................................. 5.160 v Clerk of Petty Sessions, Court of Petty Sessions Hobart; Ex parte Davies Brothers Ltd (1998) 8 Tas R 283 ....................................................................................................... 5.50, 5.670 v Close [1948] VLR 445 ............................................................................... 9.540, 9.560, 9.570, 9.820 v Commissioner of Police of the Metropolis; Ex parte Blackburn (No 2) [1968] 2 QB 150 ...................................................................................................................................... 6.810, 6.830 v Condello (No 2) [2006] VSC 27 .................................................................................................. 5.170 v Coutts [2013] SADC 50 ............................................................................................................... 8.270 v Cowan [2014] QSC 41 ................................................................................................................ 5.620 v Creevey (1813) 1 M&S 273; 105 ER 102 .................................................................................. 4.100 v Crowther-Wilkinson [2004] NSWCCA 249 ................................................................................... 6.230 v Curll (1727) 2 St R 788; 93 ER 849 .......................................................................................... 9.530 v Curran & Torney [1983] 2 VR 133 .............................................................................................. 8.110 v David Syme & Co Ltd [1982] VR 173 ........................................................ 6.70, 6.220, 6.950, 6.960 v Davis (1995) 57 FCR 512 .................................................................................................... 5.20, 5.30 v Day & Thomson [1985] VR 261 ...................................................................................... 6.450, 6.760 v Denbigh Justices; Ex parte Williams [1974] 1 QB 759 ...................................................... 5.30, 5.60 v Duffy; Ex parte Nash [1960] 2 QB 188 ........................................................................... 6.260, 6.270 v Dunbabin; Ex parte Williams (1935) 53 CLR 434 .............. 6.90, 6.810, 6.820, 6.830, 6.850, 6.890, 6.920 v Dyson (1944) 29 Cr App R 104 .................................................................................................. 6.230 v Edelsten (1990) 21 NSWLR 542 ................................................................................................... 8.80 v Editor of New Statesman; Ex parte Director of Public Prosecutions (1928) 44 TLR 301 ................................................................................................................................................. 6.820 v Editor of the Daily Mail; Ex parte Factor (1928) 44 TLR 303 ................................................... 6.770 v Emmett; R v Masland (1988) 14 NSWLR 327 ........................................................................... 5.820 v Enson (1887) 3 TLR 366 ........................................................................................................... 3.1470 v Evans (1999) 152 FLR 352 ........................................................................................................... 8.80 v Evening News; Ex parte Hobbs [1925] 2 KB 158 ...................................................................... 6.760 v Evening Standard Co Ltd; Ex parte Attorney-General [1954] 1 QB 578 .................................... 6.70 v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556 .................................. 6.100 v Felixstowe Justices; Ex parte Leigh [1987] 1 QB 582 ....................................................... 5.10, 5.30 v Ferguson; Ex parte Attorney-General (Qld) (2008) 186 A Crim R 483; [2008] QCA 227 ................................................................................................................................................. 6.120 v Fletcher; Ex parte Kisch (1935) 52 CLR 248 ................................................................... 6.90, 6.930 v Forbes; Ex parte Bevan (1972) 127 CLR 1 ................................................................................. 6.40 v Fowler [1905] 1 Tas LR 53 .............................................................................................. 6.810, 6.920 v Freeman [2011] VSC 139 ............................................................................................................ 5.600 v General Television Corporation Pty Ltd [2009] VSC 84 ............................................................. 6.960 v Glennon (1992) 173 CLR 592 .............................................................................. 6.120, 6.220, 6.230 v Governor of Lewes Prison; Ex parte Doyle [1917] 2 KB 254 ..................................................... 5.60 v Gray (1865) 10 Cox CC 184 ....................................................................................................... 6.760 v Gray (1900) 82 LTR 534; [1900] 2 QB 36 ............................................... 6.810, 6.830, 6.850, 6.960 v Griffiths; Ex parte Attorney-General [1957] 2 QB 192 ...................................................... 6.70, 6.150 xxxvii

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v Hamilton (1930) 30 SR (NSW) 277 .............................................................................................. 5.80 v Hanson; R v Ettridge [2003] QCA 488 ....................................................................................... 6.270 v Hardy [1951] VLR 454 ............................................................................................................... 3.1470 v Harwood [2012] EW Misc 27 ...................................................................................................... 6.160 v Haydon (No 1) [2004] SASC 437 ............................................................................................... 6.280 v Hepburn (1889) 15 VLR 84 ....................................................................................................... 3.1470 v Herald & Weekly Times Ltd (unreported, Vic Supreme Court, Harper J, 15 April 1996) .............................................................................................................................................. 6.960 v Herald & Weekly Times Ltd [1999] VSC 432 ............................................................................. 6.270 v Herald & Weekly Times Ltd [2006] VSC 94 ................................................................... 6.260, 6.270 v Herald & Weekly Times Ltd (2007) 19 VR 248; [2007] VSC 482 ...................... 6.180, 6.690, 6.760 v Herald & Weekly Times Ltd [2008] VSC 251 ...................................................... 6.310, 6.950, 6.960 v Herald & Weekly Times Ltd [2009] VSC 85 ............................................................................... 6.960 v Herring [1998] NSWSC 551 ............................................................................................. 5.820, 5.830 v Hicklin (1868) LR 3 QB 360 ........................................................................................................ 9.530 v Hinch [2013] VSC 520 .............................................. 5.370, 6.90, 6.160, 6.650, 6.690, 6.750, 6.790 v Hinch (No 2) [2013] VSC 554 ..................................................................................................... 6.960 v His Honour Judge Noud; Ex parte MacNamara [1991] 2 Qd R 86 .......................................... 5.370 v Holbrook (1878) 4 QBD 42 ....................................................................................................... 3.1470 v Hoser & Kotabi Pty Ltd [2001] VSC 443 ........................... 6.810, 6.820, 6.830, 6.890, 6.930, 6.940 v Jackson (1987) 8 NSWLR 116 ...................................................................................................... 4.80 v Jamal (2008) 72 NSWLR 258 .......................................................................................... 5.290, 6.120 v K (2003) 59 NSWLR 431; [2003] NSWCCA 406 ................................................ 5.830, 6.230, 6.790 v Karakaya [2005] Cr App R 5 ........................................................................................... 5.210, 6.800 v Kelly [2006] VSCA 221 ................................................................................................................ 7.560 v Khazaal (2012) 246 CLR 601 ...................................................................................... 10.120, 10.130 v Kopyto (1987) 39 CCC (3d) 1 ......................................................................................... 6.830, 6.940 v Kopyto (1987) 47 DLR (4th) 213 ................................................................................................ 6.940 v Kray (1969) 53 Cr App R 412 ......................................................................................... 6.280, 6.760 v Kwok (2005) 64 NSWLR 335 ...................................................................................................... 5.120 v Laws (2000) 50 NSWLR 96; [2000] NSWSC 880 ..................................................................... 5.830 v Laws (2000) 116 A Crim R 70; [2000] NSWSC 885 .................................................................. 5.830 v Le (2004) 60 NSWLR 108 ............................................................................................... 8.250, 8.270 v Legal Aid Board; Ex parte Kaim Todner [1999] 3 WLR 925; QB 966 ................... 5.20, 5.80, 5.180 v Lemon [1979] AC 617 ............................................................................... 9.370, 9.380, 9.390, 9.440 v Lewis [2001] EWCA Crim 749 ..................................................................................................... 5.820 v Liddy [2010] SADC 80 ................................................................................................................. 6.120 v Lodhi (2006) 65 NSWLR 573 ............................................................................................ 5.80, 5.570 v Lodhi [2006] NSWSC 571 .................................................................................................. 5.40, 5.570 v Lodhi [2006] NSWSC 596 ............................................................................................................. 5.60 v Long (2003) 138 A Crim R 103 ................................................................................................... 6.230 v Lord Abingdon (1795) 1 Esp 226; 170 ER 337 ......................................................................... 4.100 v Lovitt [2003] QSC 279 ................................................................................................................. 6.150 v Mahanga [2001] 1 NZLR 641 ...................................................................................................... 5.670 v Mamabolo 2001 (3) SA 409 ........................................................................................................ 6.940 v McCann (1991) 92 Cr App R 239 ............................................................................................... 6.230 v McInroy (1915) 26 DLR 615 ........................................................................................................ 6.260 v McLachlan [2000] VSC 215 ......................................................................................................... 6.230 v McManus and Harvey [2007] VCC 619 ............................................................... 7.510, 7.540, 7.560 v Metal Trades Employers’ Association; Ex Parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 .......................................................................................... 6.40 v Miah [1997] 2 Cr App R 12 ......................................................................................................... 5.820 v Migliorini (1981) 53 FLR 221 ....................................................................................................... 8.100 v Mirza [2004] 1 AC 1118 ................................................................................................... 5.810, 5.820 v Mokbel (2009) 26 VR 618 ........................................................................................................... 6.120 v Munro [1912] QWN 21 ................................................................................................................ 10.60

xxxviii

Table of Cases R v Murphy (1986) 5 NSWLR 18 .................................................................................... 4.80, 4.90, 4.240 R v Nationwide News Pty Ltd (1997) 94 A Crim R 57 ..................................................................... 6.730 R v Nationwide News Pty Ltd (unreported, Vic Supreme Court, Gillard J, 18 February 1998) .............................................................................................................................................. 6.960 R v Nationwide News Pty Ltd and Queensland Newspapers Pty Ltd (2008) 22 VR 116; [2008] VSC 526 .................................................................................................................. 5.380, 5.500 R v Nicholls (1911) 12 CLR 280 ........................................................................................................ 6.930 R v Odhams Press Ltd [1957] 1 QB 73 ................................................................................... 6.70, 6.140 R v Olden [2001] VSC 80 ....................................................................................................... 6.230, 6.280 R v Oliver (1984) 57 ALR 543 ............................................................................................................ 8.110 R v O’Brien [2014] UKSC 23 ............................................................................................................... 6.20 R v Pacini [1956] VLR 544 .......................................................................................... 6.610, 6.230, 6.700 R v Pan [2001] SCR 344 ................................................................................................................... 5.820 R v Papadopoulos [1979] 1 NZLR 621 .............................................................................................. 5.810 R v Parke [1903] 2 KB 432 ..................................................................................................... 6.110, 6.200 R v Paterson (unreported, Qld Supreme Court, 15 April 1930) ....................................................... 10.60 R v Pearce (1992) 7 WAR 395 ................................................. 6.110, 6.140, 6.230, 6.320, 6.330, 6.760 R v Perish [2011] NSWSC 1102 ................................................................................. 5.250, 5.290, 6.230 R v Pitt and R v Mead (1762) 3 Burr 1335; 97 ER 861 .................................................................. 4.220 R v Pomeroy; The Herald & Weekly Times Ltd [2002] VSC 178 ............................. 5.170, 5.380, 5.530 R v Portillo [1997] 2 VR 723 .............................................................................................................. 5.820 R v Qureshi [2002] 1 WLR 518 ......................................................................................................... 5.820 R v Ramsay and Foote (1883) 15 Cox CC 23 ................................................................................. 9.370 R v Regal Press Pty Ltd [1972] VR 67 ............................................................................................. 6.260 R v Rich (Ruling No 7) [2008] VSC 437 ........................................................................................... 5.290 R v Richards; Ex parte Fitzpatrick & Browne (1955) 92 CLR 157 ......... 4.20, 4.80, 4.210, 4.240, 4.410 R v Richards; Ex parte Fitzpatrick & Browne (1955) 92 CLR 171 ................................................... 4.410 R v Rinaldi (1993) 30 NSWLR 605 ........................................................................................ 5.820, 5.830 R v Rintoull [2010] VSC 30 ................................................................................................................ 5.530 R v Rule (1937) 2 KB 375 ................................................................................................................. 4.150 R v Saxon, Hadfield & Western Mail Ltd [1984] WAR 283 .............................. 6.70, 6.230, 6.360, 6.700 R v Scaf [2004] 60 NSWLR 86 .......................................................................................................... 5.820 R v Scott & Downland Publications Ltd [1972] VR 663 ........................................................ 6.220, 6.760 R v Secretary of State for Trade; Ex parte Anderson Strathclyde plc [1983] 2 All ER 233 ............. 4.80 R v Sharkey (1949) 79 CLR 121 ....................................................................................................... 10.60 R v Sharp (1964) 82 WN (Pt 1) (NSW) 129 .......................................................................... 9.570, 9.610 R v Skaf (2004) 60 NSWLR 86 ......................................................................................................... 5.810 R v Smith [2005] 2 All ER 29 ............................................................................................................. 5.820 R v Socialist Worker Printers and Publishers Ltd; Ex parte Attorney-General [1975] 1 QB 637 ............................................................................................................................ 5.90, 5.120, 5.350 R v Spectator Staff Pty Ltd [1999] VSC 107 ................................................................ 6.70, 6.950, 6.960 R v Stanley [1965] 2 QB 327 ............................................................................................................. 9.540 R v Sullivan (1868) 11 Cox CC 44 .................................................................................................... 10.40 R v Sun Newspapers Pty Ltd (1992) 58 A Crim R 281 ................................. 6.100, 6.240, 6.730, 6.760 R v Tait (1979) 46 FLR 386 ..................................................................................... 5.10, 5.20, 5.80, 5.90 R v Tayyab Sheikh [2004] NSWCCA 38 ................................................................................ 6.230, 6.760 R v The Age Company Ltd [2000] TASSC 62 ................................................................................... 5.570 R v The Age Company Ltd [2006] VSC 479 ......................................................................... 6.470, 6.680 R v The Age Company Ltd [2008] VSC 305 ......................................................................... 6.140, 6.310 R v Theophanous [2003] VSCA 78 ................................................................................. 4.30, 4.90, 4.130 R v Thomson Newspapers Ltd; Ex parte Attorney-General [1968] 1 All ER 268 .................. 6.70, 6.370 R v Tibbits [1902] 1 KB 77 ................................................................................................................. 6.100 R v Trustrum [2005] TASSC 88 .......................................................................................................... 6.920 R v Truth Newspaper (unreported, Vic Supreme Court, Phillips J, 16 December 1993) ..... 6.440, 6.960 R v Vollmer [1996] 1 VR 95 ............................................................................................................... 6.120 R v Von Einem (1991) 55 SASR 199 .................................................................................................. 6.90 xxxix

Australian Media Law R v Wampfler (1987) 11 NSWLR 541 .................................................................................... 9.800, 9.810 R v Wells Street Stipendiary Magistrate; Ex parte Deakin [1980] AC 477 .................................... 3.1470 R v West Australian Newspaper Holdings Ltd; Ex parte Director of Public Prosecutions (WA) (1996) 16 WAR 518 ...................................................................................... 6.140, 6.220, 6.730 R v White (2007) 17 VR 308 ............................................................................................................. 5.280 R v Wicks [1936] 1 All ER 384 ........................................................................................................ 3.1470 R v Williams [2007] VSC 139 ................................................................................................. 5.610, 5.620 R v Williams; In the matter of an application by “The Age” [2004] VSC 413 .................................. 5.160 R v Workman (2004) 60 NSWLR 471 ...................................................................................... 8.80, 8.110 R v Young [1995] QB 324 .................................................................................................................. 5.820 R v Zorad (1990) 19 NSWLR 91 ....................................................................................................... 6.180 R, Guardian News & Media Ltd v City of Westminster Magistrates Court [2012] EWCA (Civ) 420 ..................................................................................... 5.20, 5.40, 5.50, 5.660, 5.670, 5.675 R (Cth) v Elomar (No 3) [2008] NSWSC 1443 ...................................................................... 5.670, 5.675 R (on application of Green) v The City of Westminster Magistrates’ Court [2007] EWHC 2785 .................................................................................................................................... 9.390, 9.400 R (on application of London Christian Radio Ltd) v Radio Advertising Clearance Centre; Secretary of State for Culture, Media and Sport [2013] EWCA Civ 1495; [2014] 1 WLR 307 ........................................................................................................................................ 4.600 R (on application of Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] 3 WLR 554 ...................................................................................................... 5.10, 5.20 R Lucas & Son (Nelson Mail) Ltd v O’Brien [1978] 2 NZLR 289 ........................................... 5.50, 5.670 RAV v St Paul 120 L Ed 2d 305 (1992) .............................................................................................. 2.80 RG Capital Radio Ltd v Australian Broadcasting Authority (2001) 113 FCR 18 ............................ 14.200 RJ v JC [2008] NSWDC 217 .............................................................................................................. 3.210 RJR-McDonald Inc v Attorney-General of Canada (unreported, Supreme Court of Canada, 21 September 1995) ..................................................................................................... 13.480 RJW and SJW v Guardian News and Media Ltd Claim No HQ09X04132 ........................................ 4.50 Ra v Nationwide News Pty Ltd (2009) 182 FCR 148 ....................................................................... 3.300 Raciti v Hughes (1995) 7 BPR 14,837 ................................................................................... 8.840, 8.870 Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 ......... 3.130, 3.140, 3.170, 3.340, 8.980 Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 ............................................... 3.220, 3.920 Rana v Google Australia Pty Ltd [2013] FCA 60 ............................................................................... 6.160 Random House Australia Pty Ltd v Abbott (1999) 167 ALR 224 ...................................................... 3.110 Rann v Olsen (2000) 76 SASR 450 ...................... 3.730, 4.80, 4.90, 4.100, 4.130, 4.140, 4.170, 4.240 Ratcliffe v Evans [1892] 2 QB 524 ................................................................................................... 3.1460 Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 ............... 5.10, 5.60, 5.80, 5.160, 5.170, 5.180, 5.380, 5.440 Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 ...................................................... 3.180 Redrock Holdings Pty Ltd v Hinkley (2001) 50 IPR 565 ................................................................ 12.220 Regina v Malik [1968] 1 WLR 353 ..................................................................................................... 9.230 Registrar v Nationwide News Ltd [2004] SASC 223 ......................................................................... 5.380 Registrar, The v Unnamed Respondent (1994) 234 FLR 248 .......................................................... 5.610 Registrar, Court of Appeal v Collins [1982] 1 NSWLR 682 ................................................... 6.140, 6.750 Registrar, Court of Appeal v John Fairfax Group Pty Ltd (unreported, NSW Court of Appeal, 21 April 1993) ..................................................................................................................... 6.70 Registrar, Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 .............................................. 6.960 Registrar, Court of Appeal v Willesee (1985) 3 NSWLR 650 .... 6.90, 6.140, 6.230, 6.710, 6.950, 6.960 Registrar, Supreme Court of South Australia v Channel 9 SA Pty Ltd [2001] SASC 3 .................. 6.960 Registrar, Supreme Court v Herald & Weekly Times Ltd [2004] SASC 129 ................................... 5.380 Registrar, Supreme Court v McPherson [1980] 1 NSWLR 688 ........................................................ 6.140 Registrar, Western Australian Industrial Relations Commission v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Workers Union of Australia, Engineering and Electrical Division WA Branch [1999] WASCA 170 ..................... 3.990 Reid v Howard (1993) 31 NSWLR 298 ............................................................................................. 7.450 Reid v Howard (1995) 184 CLR 1 ..................................................................................................... 5.160 xl

Table of Cases Renouf v Federal Capital Press of Australia Pty Ltd (1977) 17 ACTR 35 ........................ 3.1160, 3.1170 Resolute Ltd v Warnes [2000] WASCA 359 ........................................................................... 6.530, 6.550 Rex v Tutchin (1704) 14 Howell’s State Trials 1095 ........................................................................... 2.20 Reynolds v Godlee (1858) 4 K & J 88 .............................................................................................. 5.730 Reynolds v Times Newspapers Ltd [1999] 3 WLR 1010 .................................................................... 2.90 Reynolds v Times Newspapers Ltd [2001] 2 AC 127 ............................... 3.1020, 3.1080, 8.590, 8.1050 Rice v Paladin Enterprises 940 F Supp 836 (D Md 1996) ............................................................. 11.280 Richardson v Hastings (1844) 7 Beav 301 ........................................................................................ 5.730 Richmond Newspapers Inc v Virginia 448 US 555 ............................................................................. 5.20 Riddick v Thames Board Mills Ltd [1977] QB 881 ............................................................................ 5.730 Ridge v Baldwin [1964] AC 40 ............................................................................................................. 8.10 Rigby v Associated Newspapers Ltd [1969] 1 NSWR 729 ............................................................. 3.1360 Riley v Triplex Communications Inc 874 SW 2d 333 (Tex 1994) ................................................... 11.110 Rindos v Hardwick (unreported, WA Supreme Court, Ipp J, 31 March 1994) ................................. 3.440 Rinehart v Welker [2011] NSWCA 345 ................................................................................... 5.420, 5.430 Rinehart v Welker [2011] NSWCA 403 ...... 5.60, 5.80, 5.160, 5.240, 5.250, 5.420, 5.430, 5.440, 5.660, 5.670 Rinehart v Welker [2012] HCATrans 57 ............................................................................................. 5.430 Rinehart v Welker (No 2) [2011] NSWSC 1238 ................................................................................ 5.430 Rinsale Pty Ltd v Australian Broadcasting Corporation (1993) Aust Torts Reports 81-231 ............ 8.680, 8.760 Risenhoover v England 936 F Supp 392 (USDC 1996) ................................................................. 11.160 Rivkin v Amalgamated Television Services Pty Ltd [2001] NSWSC 432 ......................................... 3.170 Roads & Traffic Authority (NSW) v Australian National Car Parks Pty Ltd [2007] NSWCA 114 .................................................................................................................................................. 7.600 Roadshow Films Pty Ltd v iiNet Ltd (2012) 248 CLR 42 ............................................................... 12.390 Roadshow Films Pty Ltd v iiNet Ltd (No 3) [2010] FCA 24 ............................................................. 5.640 Roberts v Bass (2002) 212 CLR 1 .................................................................. 2.90, 3.960, 3.1460, 4.630 Roberts v Nine Network Australia Pty Ltd (Unreported ......................................................... 5.610, 5.620 Robertson v Dogz Online Pty Ltd [2010] QCA 295 ........................................................................... 3.560 Robertson v Samuels (1973) 4 SASR 465 ................................................................. 9.540, 9.560, 9.570 Robertson v Swincer (1989) 52 SASR 356 ...................................................................................... 11.110 Robinson v Laws [2003] 1 Qd R 81 .................................................................................................. 3.700 Rochfort v John Fairfax & Sons [1972] 1 NSWLR 16 ...................................................................... 3.280 Rockett v Smith; Ex parte Smith [1992] 1 Qd R 660 .......................... 5.100, 5.110, 5.120, 5.150, 5.160 RocknRoll v News Group Newspapers Ltd [2013] EWHC 24 ................................. 8.560, 8.570, 8.1040 Rodrigues v Ufton (1894) 20 VLR 539 .............................................................................................. 8.660 Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 ................................................. 3.1320, 3.1330 Rogers v Television New Zealand Ltd [2008] 2 NZLR 277 ................................................. 8.610, 8.1040 Roman Corp Ltd v Hudson’s Bay Oil & Gas Co Ltd (1972) 23 DLR (3d) 292 ............................... 4.150 Roman Corp Ltd v Hudson’s Bay Oil & Gas Co Ltd (1973) 36 DLR (3d) 413 ............................... 4.150 Romeyko v Samuels (1972) 2 SASR 529; 19 FLR 322 ................................. 9.540, 9.570, 9.590, 9.600 Ronald v Harper [1913] VLR 311 ....................................................................................................... 3.740 Ross McConnel Kitchen & Co Pty Ltd v John Fairfax & Sons Ltd [1990] 2 NSWLR 845 ............. 3.280 Rothmans of Pall Mall (Aust) Ltd v Australian Broadcasting Tribunal (1985) 5 FCR 330 ........... 13.460, 13.480 Rowan v Cornwall (No 5) (2002) 82 SASR 152 ...................................................................... 4.80, 4.140 Rowe v Silverstein [2009] VSC 157 ................................................................................................... 5.750 Royal Aquarium & Summer & Winter Garden Society v Parkinson [1892] 1 QB 431 .................... 3.740 Rugby Football Union v Consolidated Information Services Ltd [2012] 1 WLR 3333 ..................... 7.590 Russell v Russell (1976) 134 CLR 495 ................................................................... 5.10, 5.20, 5.40, 5.50 Russo v Russo [2010] VSC 98 .......................................................................................................... 5.670

S S v State of New South Wales [2009] NSWCA 164 ......................................................................... 11.20 S (A Child) (Identification: Restrictions on Publication), In Re [2005] 1 AC 593 .................... 5.20, 8.570 xli

Australian Media Law SAT FM Pty Ltd v Australian Broadcasting Authority [1997] FCA 647 ........................................... 14.200 SG v DPP [2003] NSWSC 413 .......................................................................................................... 5.160 Saad v Chubb Security Pty Ltd (No 2) [2012] NSWSC 1183 .......................................................... 8.960 St James’s Evening Post Case: Roach v Garvan (1742) 2 Atk 469; 26 ER 683 ................ 6.140, 6.810 Sakon v Pepsico Inc 553 So 2d 163 (Fla 1989) ............................................................................. 11.290 Saltalamacchia v Parsons [1999] VSC 430 ....................................................................................... 6.820 Saltalamacchia v Parsons [2000] VSCA 83 ................................................................ 6.650, 6.810, 6.880 Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203 ............. 7.80, 7.220, 7.230 Sancoff v Holford [1973] Qd R 25 .......................................................................................... 9.540, 9.820 Sanders v Acclaim Entertainment, Inc 188 F Supp 2d 1264 (D Colo 2002) ................................. 11.300 Sands v Channel Seven Adelaide Pty Ltd [2010] SASC 202 ........................ 3.220, 3.300, 3.450, 3.670 Sands v South Australia [2013] SASR 44 ........................................................................................... 7.60 Sands & McDougall Pty Ltd v Robinson (1917) 23 CLR 49 ............................................. 12.100, 12.180 Sankey v Whitlam (1978) 142 CLR 1 ......................................................................................... 4.40, 4.80 Sapphire (SA) Pty Ltd (trading as River City Grain) v Barry Smith Grains Pty Ltd (in liq) [2011] NSWSC 1451 ..................................................................................................................... 5.730 Sartor v John Fairfax Group Pty Ltd (unreported, NSW Supreme Court, Levine J, 1 April 1993) .............................................................................................................................................. 3.280 Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32 ....................................... 11.60, 11.240, 11.330 Saunders v Punch Ltd [1998] 1 WLR 986 ......................................................................................... 7.660 Savige v News Ltd (1932) SASR 240 .................................................................................... 3.280, 3.670 Schaefer v United States 251 US 466 (1920) ..................................................................................... 2.80 Schenck v United States 249 US 47 (1919) ............................................................................ 2.80, 10.40 Schering Chemicals Ltd v Falkman Ltd [1981] 2 All ER 321; [1982] QB 1 .............. 6.560, 7.220, 7.240 Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275 ..................................................... 3.1460 Science Research Council v Nasse [1980] AC 1028 ........................................................................ 7.360 Scott v Reid [1979] Qd R 37 .............................................................................................................. 9.550 Scott v Sampson (1882) 8 QBD 491 .................................................................................... 3.280, 3.1360 Scott v Scott [1913] AC 417 ............................................................ 5.40, 5.60, 5.80, 5.130, 5.150, 5.420 Seafolly Pty Ltd v Fewstone Pty Ltd (2014) 313 ALR 41 ................................................. 12.200, 12.260 Seager v Copydex Ltd [1967] 2 All ER 415 ...................................................................................... 7.420 Seaman v Netherclift [1876] 2 CPD 53 ............................................................................................. 3.740 Secretary of State for Defence v Guardian Newspapers Ltd [1985] AC 339 .................................. 7.660 Secretary of State for Justice v The Oriental Press Group Ltd [1998] 2 HKLRD 123 .................... 6.940 Sent v John Fairfax Publication Pty Ltd [2002] VSC 429 ................................................................. 7.320 Sepulveda v The Queen [2006] NSWCCA 379 ................................................................................. 8.270 Sergi v ABC [1983] 2 NSWLR 669 .................................................................................................... 3.670 Setka v Abbott [2014] VSCA 287 ............................................................................................ 3.700, 3.710 Seven Network (Operations) Ltd v Warburton (No 1) [2011] NSWSC 385 ........................................ 5.60 Seven Network Ltd v News Ltd (2005) FCA 1394 ............................................................................ 5.675 Seymour v Butterworth (1862) 3 F&F 372 ......................................................................................... 8.980 Seymour v Migration Agents Registration Authority [2006] FCA 965 ................................................. 6.20 Shaddock v Parramatta City Council (1981) 150 CLR 225 ............................................................ 11.330 Shapiro v La Morta [1923] All ER Rep 378 ..................................................................................... 3.1460 Shapowloff v Fitzgerald [1966] 2 NSWR 244 .................................................................................. 3.1550 Shelley Films Ltd v R Features Ltd [1994] EMLR 134 .......... 7.120, 7.240, 7.360, 8.520, 8.940, 8.1040 Shelley Films Ltd v Rex Features Ltd (unreported, English Chancery Division, Mann QC, 10 December 1993) ....................................................................................................................... 7.420 Shiel v Transmedia Productions Pty Ltd [1987] 1 Qd R 199 ......................................................... 3.1370 Shulman v Group W Productions, Inc 955 P 2d 469 (Cal 1998) ..................................................... 8.470 Sid Ross Agency Pty Ltd v Actors and Announcers Equity Assn of Australia [1971] 1 NSWLR 760 ................................................................................................................................... 8.840 Siddons Pty Ltd v Stanley Works Pty Ltd (1991) 99 ALR 497; 29 FCR 14 .................... 13.120, 13.230 Siemer v Solicitor-General [2009] 2 NZLR 556 ................................................................................... 6.20 Siemer v Solicitor-General (NZ) [2013] NZSC 68 .................................................................. 5.100, 5.160 xlii

Table of Cases Sigalla v TZ Ltd [2011] NSWCA 334 .................................................................................................... 6.20 Silberberg v Builders Collective of Australia Inc (2007) 164 FCR 475 .............. 3.560, 9.40, 9.80, 9.260 Sim v Stretch (1936) 52 TLR 669 ...................................................................................................... 3.140 Siminton v Australian Prudential Regulation Authority (2006) 152 FCR 129 ................................... 5.340 Sims v Wran [1984] 1 NSWLR 317 .......................................................................... 3.460, 3.470, 3.1130 Singtel Optus Pty Ltd v ACCC (2012) 287 ALR 249 ........................................................... 13.80, 13.350 Sir Charles Sedley’s case (1663) 1 Sid 168; 82 ER 1036 ............................................................... 9.530 Sitwell v Sitwell [2014] FamCAFC 5 .................................................................................................. 5.570 Skalkos v Assaf (2002) Aust Torts Reports 81-644 ......................................................................... 3.1280 Skipworth’s case (1873) LR 9 QB 230 .............................................................................................. 6.700 Skyways Pty Ltd v Commonwealth (1984) 57 ALR 657 ................................................................. 11.280 Slater v Blomfield [2014] NZHC 2221 .................................................................................... 7.660, 7.670 Slim v Daily Telegraph Ltd [1968] 2 QB 157 ................................................................................... 3.1160 Slipper v Magistrates Court of the ACT [2014] ACTSC 85 ..................................................... 4.80, 4.150 Smith v Harris [1996] 2 VR 335 .................................................................................... 5.50, 5.670, 5.675 Smith v John Fairfax & Sons Ltd (1987) 81 ACTR 1 ..................................................................... 3.1060 Smith v Lakeman (1856) 26 LJ (NS) Ch 305 ........................................................................ 6.140, 6.530 Smith v McQuiggan (1863) 2 SCR (NSW) 268 ................................................................................. 3.510 Smith v Oldham (1912) 15 CLR 355 ................................................................................................. 4.610 Smith v Western Australia [2014] HCA 3 ........................................................................................... 5.820 Smith Kline & French Laboratories (Australia) Ltd v Secretary, Department of Community Services and Health (1990) 95 ALR 87 .............................. 7.240, 7.250, 7.260, 7.280, 7.300, 7.360 SmithKline Beecham Biologicals SA v Connaught Laboratories Inc [1999] 4 All ER 498 .............. 5.660 Snedden v Nationwide News Pty Ltd [2011] NSWCA 262 ............................................................... 3.700 Sofilas v Cable Sands (WA) Pty Ltd (1993) 9 WAR 196 ................................................................. 5.730 Solicitor-General (NZ) v Broadcasting Corporation of New Zealand [1987] 2 NZLR 100 ............... 6.240 Solicitor-General (NZ) v Fairfax New Zealand Ltd (HC Wellington CIV-2008-485-705 .................... 6.230 Solicitor-General (NZ) v Krieger [2014] NZHC 172 ............................................................................. 6.20 Solicitor-General (NZ) v Radio Avon Ltd [1978] 1 NZLR 225 ............................................... 6.100, 6.820 Solicitor-General (NZ) v Radio New Zealand Ltd [1994] 1 NZLR 48 ................................... 5.810, 5.820 Solicitor-General (NZ) v Smith [2004] 2 NZLR 540 ..... 5.380, 6.140, 6.260, 6.270, 6.540, 6.660, 6.710, 6.750, 6.810, 6.830, 6.940 Solicitor-General (NZ) v TV3 Network Services & Television NZ Ltd (High Court ........................... 6.420 Solicitor-General (NZ) v W & H Specialist Publications Ltd [2003] 3 NZLR 12 .............................. 6.690 Souder v Pendleton Detectives Inc 88 So 2d 716 (1956) ................................................................ 8.470 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 ...................................................... 5.10 Soultanov v The Age Co Ltd (2009) 23 VR 182 ............................................................................... 3.710 South Australian Telecasters Ltd, Re (1998) 23 Fam LR 692 ................................... 5.570, 6.270, 6.830 South Hetton Coal Co Ltd v North Eastern News Association Ltd [1894] 1 QB 133 .................... 3.1160 South Suburban Co-operative Society v Orum [1937] 2 KB 690 ..................................................... 7.580 Spadtan Pty Ltd v Australian Broadcasting Corporation (unreported, NSW Supreme Court, Brownie J, 9 November 1993) ........................................................................................... 8.760 Spautz v Williams [1983] 2 NSWLR 506 ............................................................................ 3.1470, 3.1550 Speaker of the Legislative Assembly of Victoria v Glass (1871) LR 3 PC 560 ............................... 4.210 Speidel v Plato Films Ltd [1961] AC 1090 ......................................................................................... 3.690 Speight v Gosnay (1891) 60 LJQB 231 ............................................................................................. 3.450 Spill v Maule (1869) LR 4 Ex 232 ..................................................................................................... 3.860 Spiller v Joseph [2010] 3 WLR 1791 ............................................................................................... 3.1240 Sporting Shooters’ Association (Vic) v Gun Control Australia (1995) A Def R 52,030 .................... 3.990 Sports and General Press Agency v “Our Dogs” Publishing Co Ltd [1916] 2 KB 880 ................... 8.710 Spring v Guardian Assurance Plc [1995] 2 AC 296 ........................................................................ 11.330 Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 ................. 5.730, 5.780 State of New South Wales v Plaintiff A [2012] NSWCA 248 ............................................................ 5.440 Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 .................................................................... 3.320 Stefanovski v Murphy [1996] 2 VR 442 ............................................................................................. 5.590 Stephens v Avery [1988] 1 Ch 449 ...................................................................................................... 7.60 xliii

Australian Media Law Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 ....................................... 2.90, 3.970 Stephenson Jordan & Harrison Ltd v MacDonald & Evans (1952) 69 RPC 10 ............................ 12.220 Stern v Piper [1997] QB 123 .............................................................................................................. 3.450 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 ..................................................... 12.220 Stewart v Cook 45 SE 369 ................................................................................................................. 7.330 Stirling v Associated Newspapers Ltd [1960] Sc LT 5 ...................................................................... 6.180 Stoakes v Brydges [1958] QWN 5 .......................................................................................... 8.830, 8.870 Stockdale v Hansard (1839) 9 Ad & E 1; 112 ER 1112 ....................................... 2.20, 4.20, 4.70, 4.220 Stocker v McElhinney (No 2) (1961) 79 WN (NSW) 541 ............................................................... 3.1370 Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449 ............................................. 11.20 Stonham v Speaker of the Legislative Assembly of New South Wales (No 1) (1999) 90 IR 325 ............................................................................................................................................ 5.780 Stopforth v Goyer (1978) 87 DLR (3d) 373 ........................................................................... 4.100, 4.150 Stormer v Ingram [1978] 21 SASR 93 ............................................................................................... 8.810 Stratton Oakmont Inc v Prodigy Services Inc 1995 NY Misc LEXIS 229 ........................................ 3.560 Strauss v Police (2013) 115 SASR 90 ............................................................................................... 6.610 Street v Luna Park Sydney Pty Ltd [2006] NSWSC 624 .................................................................. 5.770 Stubbs Ltd v Russell [1913] AC 386 .................................................................................................. 3.280 Sullivan v Moody (2001) 207 CLR 562 ........................................................................ 11.40, 11.60, 11.80 Sullivan v Sclanders (2000) 77 SASR 419 ........................................................................................ 7.360 Sun Case 1951, The VP 1951-53/ 171 .............................................................................................. 4.380 Sun Earth Homes Pty Ltd v Australian Broadcasting Corporation (1993) 45 FCR 265 ............... 3.1430, 3.1440, 11.340, 13.410 Sun Newspapers v Brisbane TV Ltd (1989) 92 ALR 535 ................................................................. 7.490 Sunday Times, The v United Kingdom [1979] 2 EHRR 245 ................................................. 6.510, 6.540 Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1 ................................... 3.140 Sunol v Collier [2006] NSWADTAP 51 ............................................................................................... 9.360 Sunol v Collier (No 2) (2012) 289 ALR 128 ............................................ 9.30, 9.90, 9.130, 9.140, 9.320 Superior Court for the City and County of San Francisco v Vargas 137 Cal App 3d 1002 (1982) ........................................................................................................................................... 11.110 Surveillance Devices Act 1998, Re; Ex parte TCN Channel Nine Pty Ltd [1999] WASC 246 ...................................................................................................................................... 8.370, 8.430 Sutherland v Stopes [1925] AC 47 ............................................................................ 3.670, 3.680, 3.1240 Sybron Corporation v Barclay’s Bank plc [1985] Ch 299 .................................................................. 5.770 Sydney Daily Telegraph Case 1971, The House of Representatives Committee of Privileges ........................................................................................................................................ 4.460 Szanto v Melville [2011] VSC 574 .................................................................................................... 3.1280 Szuty v Smyth [2004] ACTSC 77 ............................................................................................... 4.30, 4.80

T T v Attorney-General (1988) 5 NZFLR 357 ....................................................................................... 8.600 T v Medical Board of South Australia (1992) 164 LSJS 430 ....................................... 8.80, 8.110, 8.250 TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 ............................................... 8.680, 8.730 TCN Channel Nine Pty Ltd v Antoniadis (unreported, 1 October 1998) .......................................... 3.120 TCN Channel Nine Pty Ltd v Australian Broadcasting Authority [2002] FCA 896 ........... 13.470, 13.480, 14.740 TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd (2008) 71 NSWLR 323 ....... 3.1410, 3.1420, 8.740, 8.900, 8.910 TCN Channel Nine Pty Ltd v Mahoney (1993) 32 NSWLR 397 ...................................................... 3.220 TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (2002) 118 FCR 417 ........................ 12.330, 12.410 TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (No 2) (2005) 145 FCR 35 ........................... 12.330 TK v Australian Red Cross Society (1989) 1 WAR 335 ................................................................... 5.120 TTT & JJJ v Victoria [2013] VSC 162 ............................................................................................... 5.120 TV3 Network Services Ltd v Broadcasting Standards Authority [1995] 2 NZLR 720 ...................... 8.680 TWT Ltd v Moore (1991) A Def Rep 51,030 ..................................................................................... 3.700 Taco Co of Aust Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 ............................................... 13.60, 13.70 xliv

Table of Cases Talbot v General Television Corporation Pty Ltd [1980] VR 224 ........... 7.60, 7.110, 7.240, 7.430, 8.960 Tame v New South Wales (2002) 211 CLR 317 .............................. 8.1020, 11.60, 11.70, 11.80, 11.230 Tamiz v Google Inc [2013] EWCA Civ 68 .......................................................................................... 3.560 Tate v Duncan-Strelec [2014] NSWSC 1125 ........................................ 5.750, 6.160, 6.530, 6.810, 6.820 Taxation, Deputy Commissioner of v Rettke (1995) 31 IPR 457 ...................................................... 7.330 Taylor v Attorney-General (NZ) [1975] 2 NZLR 675 .............................................................. 5.120, 5.160 Taylor v Canadian Human Rights Commission (1990) 75 DLR (4th) 577 ....................................... 9.120 Taylor v Serious Fraud Office [1999] 2 AC 177 ................................................................................ 5.730 Taylor v Taylor (1979) 143 CLR 1 ...................................................................................................... 5.100 Telegraph Plc, Ex parte [1993] 2 All ER 971 ..................................................................................... 6.280 Television New Zealand Ltd v The Queen [2000] NZCA 354 ................................................. 5.50, 5.670 Telnikoff v Matusevitch [1992] 2 AC 343 ............................................................................. 3.1150, 3.1170 Telstra Corp Ltd v Optus Communications Pty Ltd (1997) ATPR ¶41-451 ...................................... 13.70 Telstra Corporation Ltd v Phone Directories Co Pty Ltd (2010) 194 FCR 142 ..... 12.20, 12.100, 12.110 Telstra Corporation Ltd v Royal & Sun Alliance Insurance Australia Ltd (2003) 57 IPR 453 ................................................................................................................................................. 12.20 Ten Group Pty Ltd v Cornes [2011] SASC 104; (2012) 114 SASR 46 ......... 3.200, 3.220, 3.230, 3.280 10th Cantanae Pty Ltd v Shoshana Pty Ltd (1987) 79 ALR 299 ....................................... 8.990, 13.170 Terrill, Ex parte; Re Consolidated Press Ltd [1937] SR (NSW) 255 ................................................ 6.760 Terry v Persons Unknown [2010] EWHC 119 ............................................................. 5.10, 8.570, 8.1040 Tesco Supermarkets Ltd v Nattrass [1972] AC 153 .......................................................................... 8.190 The Board of Inquiry into Disability Services, In the Matter of [2002] ACTSC 28 .......................... 4.160 The Queensland Law Society Incorporated, Ex parte [1984] 1 Qd R 166 ...................................... 5.160 The Royal Commission into the Use of Executive Power, Re; The Queen v Parry (1992) 92 A Crim R 295 ........................................................................................................................... 4.150 The Royal Commission into the Use of Executive Power, Re; The Queen v Parry (unreported, WA Full Court of Supreme Court, 1 May 1997 (determination of contempt)); (1997) 92 A Crim R 295 ................................................................................ 7.510, 7.540 Theakston v MGN Ltd [2002] EMLR 398 ........................................................................................ 8.1040 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 ..... 2.90, 3.970, 3.990, 4.500, 6.780, 8.1050 Thiess v TCN Channel Nine Pty Ltd (No 1) [1991] 2 Qd R 715 ..................................................... 7.580 Thiess v TCN Channel Nine Pty Ltd [1994] 1 Qd R 156 ...................................................... 3.470, 3.560 Thom v Associated Newspapers Ltd (1964) 64 SR (NSW) 376 ...................................................... 3.830 Thomas v Bradbury Agnew & Co Ltd [1906] 2 KB 627 .................................................................. 3.1160 Thomas v Nash [2010] SASC 153 ......................................................................................... 8.180, 8.270 Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 ............................ 3.470, 3.1260 Thompson v Riley McKay Pty Ltd (1980) 29 ALR 267 ................................................................... 13.110 Thorp v CA Imports Pty Ltd (1990) ATPR 40-996 ............................................................. 13.210, 13.220 3AW Southern Cross Radio Pty Ltd v Inner North East Community Radio Incorporated (1994) 16 ATPR 41-313 ................................................................................................................ 14.90 Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2009] NSWSC 533 .................................................. 5.750 Timania Pty Ltd v Inghams Enterprises Pty Ltd [2004] FCA 732 ......................................... 6.530, 6.550 Time Inc v Hill 385 US 374 (1967) .................................................................................................... 8.490 Times Mirror Co v Superior Court of San Diego County 198 Cal App 3d 1420 (1988) ............... 11.210 Titelius v Public Service Appeal Board (1999) 21 WAR 201 ............................................................ 5.670 Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations (1992) 38 FCR 1 ........................................................................................................................... 13.70 Toben v Jones (2003) 129 FCR 515 ...................................................... 9.70, 9.240, 9.260, 9.290, 9.320 Today FM (Sydney) Pty Ltd v Australian Communications and Media Authority [2013] FCA 1157 ............................................................................................................................ 6.80, 14.740 Today FM (Sydney) Pty Ltd v Australian Communications and Media Authority [2014] FCAFC 22 .......................................................................................................................... 6.80, 14.740 Toll Pty Ltd v Abdulrahman [2007] NSWADTAP 70 .......................................................................... 9.210 Tolley v JS Fry & Sons Ltd [1931] AC 333 ....................................................................................... 8.990 xlv

Australian Media Law Tonnex International Pty Ltd v Dynamic Supplies Pty Ltd (2012) 99 IPR 31; [2012] FCAFC 162 .................................................................................................................................. 12.100 Toogood v Spyring (1834) 1 CM & R 181 ............................................................................. 3.860, 3.970 Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 36 ALR 64 .............................. 9.280 Toussaint v Attorney-General of St Vincent and the Grenadines [2007] 1 WLR 2825 ............ 4.30, 4.80 Trad v Harbour Radio Pty Ltd [2011] NSWCA 61 .................................................... 3.680, 3.880, 3.1240 Trad v Jones (No 3) [2009] NSWADT 318 .......... 9.90, 9.150, 9.210, 9.220, 9.290, 9.300, 9.330, 9.360 Trade Practices Commission v QSVD Holdings Pty Ltd (1995) 131 ALR 493 ................ 13.210, 13.230 Trapp v Mackie [1979] 1 WLR 377 .................................................................................................... 3.740 Trevorrow v South Australia (2006) 94 SASR 64 .............................................................................. 7.240 Triggell v Pheeney (1951) 82 CLR 497 ........................................................................................... 3.1340 Trimingham v Associated Newspapers Ltd [2012] EWHC 1296 ....................................................... 8.570 Trkulja v Google Inc LLC (No 5) [2012] VSC 533 ................................................... 3.560, 3.1270, 6.160 Truth (NZ) Ltd v Holloway [1960] 1 WLR 997 ....................................................................... 3.450, 3.670 Truth and Sportsman Ltd, Ex parte [1961] SR (NSW) 484 .............................................................. 6.270 Tubman, Ex parte; Re Lucas (1970) 72 SR (NSW) 552; 92 WN (NSW) 520 ................ 5.10, 5.60, 6.90 Tucker v News Media Ownership Ltd [1986] 2 NZLR 716 ............................................................... 8.600 Tucker v News Media Ownership Ltd (unreported, New Zealand High Court, Jeffries J, 20 October 1986) .......................................................................................................................... 8.600 Tuqiri v Australian Rugby Union Ltd [2009] NSWSC 781 ................................................................... 5.20 Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449 ......................... 3.880, 3.1130, 3.1160

U Ultramares Corporation v Touche 174 NE 441 .................................................................................. 11.80 Ultrasonic Slimming Pty Ltd v Fairfax Media Publication Pty Ltd [2013] NSWSC 547 ................... 7.670 Uniflex (Australia) Pty Ltd v Hanneybel [2001] WASC 138 .............................................................. 5.750 Unions NSW v New South Wales (2013) 304 ALR 266 ................................................................... 2.100 Parliamentary Privilege United Kingdom, .................................................................................... 4.20, 4.30 United Scientific Holdings Ltd v Burnley Borough Council [1978] AC 904 ...................................... 8.960 United States Department of Justice v Reporters Committee for Freedom of the Press 489 US 749 (1989) ........................................................................................................................ 5.710 United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 ..................... 5.160, 5.340, 6.90, 6.950 Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) 222 FCR 465 ......... 12.360, 12.370 Universal Music (Australia) Pty Ltd v Sharman Licence Holdings Ltd; Ex parte Merlin BV [2008] FCA 783 .................................................................................................................. 5.670, 5.675 Universal Telecasters (Qld) Ltd v Guthrie (1978) 32 FLR 360 ............................................ 13.50, 13.400 University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601 .............. 12.30, 12.100 University of New South Wales v Moorhouse (1975) 133 CLR 1 .................................................. 12.360 Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 81-127 ................. 3.560, 6.160 Uren v John Fairfax & Sons Ltd [1979] 2 NSWLR 287 ...................................................................... 4.80 Uren v John Fairfax & Sons Pty Ltd (1965) 117 CLR 118 ............................................................. 3.1320

V Vadja v Nine Network Australia Ltd [2000] NSWSC 873 .................................................................. 6.530 Vaise v Delaval (1785) 1 TR 11; 99 ER 944 ..................................................................................... 5.820 Vajda v Nine Network Australia Ltd [2001] NSWSC 840 .................................................................. 6.530 Van Stokkum v The Finance Brokers Supervisory Board [2002] WASC 192 ........... 5.670, 5.760, 5.770 Various Claimants v News Group Newspapers (No 2) [2013] EWHC 2119 .................................... 7.590 Venables v News Group Newspapers Ltd [2001] 1 All ER 908 .......... 7.60, 8.520, 8.530, 8.600, 8.940, 8.1040 Versace v Monte [2001] FCA 1565 ...................................................................................................... 5.60 Victoria v Australian Building Construction Employees and Builders’ Labourers Federation (1982) 152 CLR 25 .......... 6.80, 6.140, 6.220, 6.260, 6.270, 6.520, 6.560, 6.680, 6.720, 6.730, 6.760 Victoria v Commonwealth (1975) 134 CLR 81 .................................................................................... 4.80 xlvi

Table of Cases Victoria v Nine Network (2007) 19 VR 476 ............................................................................ 7.280, 7.290 Victoria Legislative Assembly Speaker v Glass (1871) LR 3 .............................................................. 4.80 Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 .......... 8.440, 8.710, 8.840, 8.990, 12.100 Violi v Berridale Orchards Ltd (2000) 99 FCR 580; [2000] FCA 797 ............................................... 8.250 Virginia v Black 155 L Ed 2d 535 (2003) ............................................................................................ 2.80 Vokalek v Commonwealth (2008) 101 SASR 588 ................................................................. 9.570, 9.600 Von Hannover v Germany (2005) 40 EHRR 1 ..................................................................... 8.570, 8.1040

W W v Edgell [1990] 2 WLR 471 ........................................................................................................... 7.360 W v M [2009] NSWSC 1084 ................................................................................................... 5.150, 5.380 WB v H Bauer Publishing Ltd [2002] EMLR 145 ............................................................................ 8.1040 WK v The Queen (2011) 33 VR 516 ............................................................... 8.110, 8.370, 8.380, 8.400 WP Keighery Pty Ltd v Federal Commissioner of Taxation (1957) 100 CLR 66 ........................... 15.220 Wade v Gilroy (1986) 10 Fam LR 793 ....................................................................... 6.820, 6.900, 6.960 Wagdy Hanna and Associates Pty Ltd v National Library of Australia (2004) 155 ACTR 39 ................................................................................................................................................... 7.250 Wagga Wagga Aboriginal Action Group v Eldridge (1995) Eq Opp Cases 92-701 ................ 9.90, 9.290 Wainer v Rippon [1980] VR 129 .......................................................................................................... 3.70 Wainohu v New South Wales (2011) 243 CLR 181 ............................................................................ 5.10 Wainwright v Home Office [2004] 2 AC 406 ......................................................................... 8.510, 11.250 Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43 .................................. 3.280, 3.450, 3.670, 3.840 Wallace v Wallace [2001] WASC 134 ................................................................................................ 3.700 Wallace v Walplan Pty Ltd (1985) 58 ALR 737 ............................................................................... 13.300 Walsh v Ervin [1952] VLR 361 ........................................................................................................... 8.840 Walsh v Jewell [1998] WASC 304 .................................................................................................... 3.1550 Walt Disney Productions Inc v Shannon 276 SE 2d 580 (Ga 1981) ............................................. 11.280 Walter v Bauer 439 NYS 2d 821 ...................................................................................................... 11.280 Walter v Lane [1900] AC 539 ............................................................................................................. 12.20 Wandin Springs v Wagner [1991] 2 VR 496 ....................................................................................... 5.10 Ward, Lock & Co Ltd v Operative Printers’ Assistance Society (1906) 2 TLR 327 ........................ 8.840 Ware v Associated Newspapers Ltd (1969) 90 WN (NSW) 180 ...................................................... 3.350 Wason v Walter (1868) LR 4 QB 73 ................................................................... 3.800, 3.810, 4.40, 4.70 Wason, Ex parte (1869) LR 4 QB 573 ................................................................................................ 4.40 Waterhouse v Australian Broadcasting Corporation (1986) 6 NSWLR 716; (1986) 6 NSWLR 733 ............................................................................................................ 6.260, 6.680, 6.950 Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 ............................. 3.830, 3.1340 Waterhouse v Gilmore (1988) 12 NSWLR 270 .................................................... 3.1470, 3.1480, 3.1550 Waters v Public Transport Corporation (1991) 173 CLR 349 ........................................................... 9.270 Watkin v Hall (1868) LR 3 QB 396 ........................................................................................ 3.450, 3.670 Watson v M’Ewan [1905] AC 480 ...................................................................................................... 3.740 Watters v TSR Inc 904 F 2d 378 (1990) ......................................................................................... 11.300 Watts v Hawke & David Syme & Co Ltd [1976] VR 707 ................................................................... 6.80 Wavish v Associated Newspapers Ltd [1959] VR 57 ........................................................................ 9.540 Way v Boy Scouts of America 856 SW 2d 230 (Tex App 1993) .................................................... 11.290 Webb v Bloch (1928) 41 CLR 331 ......................................................................................... 3.560, 3.960 Webb v Times Publishing Co Ltd [1960] 2 QB 535 .......................................................................... 3.810 Webster v Deahm (1993) 116 ALR 222 ............................................................................................. 4.620 Weirum v RKO General Inc 539 P 2d 36 (Cal 1975) .......................................................... 11.40, 11.120 Welker v Rinehart [2011] NSWSC 1094 ................................................................................. 5.420, 5.430 Welker v Rinehart [2011] NSWSC 1636 ............................................................................................ 5.430 Welker v Rinehart (No 5) [2012] NSWSC 45 .................................................................................... 5.440 Welker v Rinehart (No 6) [2012] NSWSC 160 .................................................................................. 5.440 Welker v Rinehart (No 7) [2012] NSWSC 222 .................................................................................. 5.440 Weller v Associated Newspapers Ltd [2014] EWHC 1163 .................................................. 8.560, 8.1040 xlvii

Australian Media Law Wennhak v Morgan [1898] 20 QBD 635 ........................................................................................... 3.760 West Australian Newspapers Ltd v Bond (2009) 40 WAR 16 .......................................................... 7.580 West Australian Newspapers Ltd v Elliott (2008) 37 WAR 387 ........................................................ 3.700 West Australian Newspapers Ltd v Western Australia [2010] WASCA 10 ................................ 5.20, 5.50 Western Aboriginal Legal Services Ltd v Jones [2000] NSWADT 102 ................................. 9.280, 9.320 Western Australia v Armstrong [2007] WASCA 204 ............................................................... 6.230, 6.410 Western Australia v BLM (2009) 40 WAR 414; [2009] WASCA 88 .................................................. 6.420 Western Australia v West Australian Newspapers Ltd (2005) 30 WAR 434 .................................... 5.570 Westpac Banking Corporation v John Fairfax Group Pty Ltd (1991) 19 IPR 513 ....... 7.60, 7.80, 7.130, 7.160, 7.220, 7.230, 7.240, 7.410 Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89 ................................................. 3.700 Whiskisoda Pty Ltd v HSV Channel Seven Pty Ltd (unreported, Vic Supreme Court, McDonald J, 5 November 1993) ................................................................................................... 8.680 Whitney v California 274 US 357 (1927) ............................................................................................. 2.80 Whitney v Moignard (1890) 24 QBD 630 .......................................................................................... 3.450 Wilkins v Condell [1940] SASR 139 ................................................................................................... 8.780 Wilkinson v Downton [1897] 2 QB 57 ....................................................................... 8.650, 8.920, 11.250 William Heinemann Ltd v Kyte Powell (1959) 103 CLR 351 ............................................................ 9.530 Williams v Spautz (1992) 174 CLR 509 ............................................................................. 3.1470, 3.1550 Willis v Brooks [1947] 1 All ER 191 ................................................................................................... 3.530 Willis v Perry (1912) 13 CLR 592 ........................................................................................... 4.230, 4.250 Willis v Wilkinson (unreported, ACT Magistrates’ Court, 3 March 1994) .............................. 8.680, 8.780 Willshire-Smith v Votino Bros Pty Ltd (1993) 41 FCR 496 ..................................................... 6.90, 6.530 Wilson v First County Trust (No 2) (2004) 1 AC 816 ......................................................................... 4.80 Wilson v Mitchell [2014] VSC 280 ...................................................................................................... 5.675 Wilson, Re; ex parte Vine (1878) 8 Ch D 364 .................................................................................. 3.500 Winter v GP Putnam’s Sons 938 F 2d 1033 (9th Cir 1991) ........................................................... 11.280 Witham v Holloway (1995) 183 CLR 525 ............................................................................................ 6.20 Witness v Marsden (2000) 49 NSWLR 429 .................................................................. 5.20, 5.120, 5.530 Wong Yueng Ng v Secretary for Justice [1999] 3 HKC 143 ............................................................ 6.940 Wood v Branson (1952) 3 SALR 369 ................................................................................................ 3.210 Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1 .................................... 3.700 Woodward v Hutchins [1977] 1 WLR 760 ................................................................... 7.230, 7.360, 7.410 Wookey v Quigley [2009] WASC 284 ................................................................................................ 3.710 Woolworths Ltd v Olson (2004) 63 IPR 258 ...................................................................................... 12.70 World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181 .............................................................. 13.70 Wotton v Queensland (2012) 246 CLR 1 ............................................................................................ 2.90 Wran v Australian Broadcasting Commission [1984] 3 NSWLR 241 ................................................ 7.580 Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 .............................. 3.1070, 3.1080 Wright & Advertiser Newspapers Ltd v Lewis (1990) 53 SASR 416 .................................... 3.730, 4.140 Wynne v Green (1901) 1 SR (NSW) 40 ............................................................................................ 8.660 Wyong-Gosford Progressive Community Radio Inc v Australian Communications and Media Authority and Gosford Christian Broadcasters Ltd [2006] FCA 1691 ............................ 14.630 Wyong Shire Council v Shirt (1980) 146 CLR 40 ............................................................................. 11.20

X X v Amalgamated Television Services Pty Ltd (No 2) (1987) 9 NSWLR 575 ........................ 6.50, 6.260 X v General Television Corporation Pty Ltd [2008] VSC 344 ........................................................... 5.200 X v South Australia [2002] SASC 53 ...................................................................................... 5.470, 5.570 X v Sydney Children’s Hospitals Specialty Network & Anor [2011] NSWSC 1272 ......................... 5.440 X v Y [1988] 2 All ER 648 ...................................................................................................... 7.360, 7.420 X Ltd v Morgan Grampian (Publishers) Ltd [1991] 1 AC 1 .............................................................. 7.590 X7 v Australian Crime Commission (2013) 248 CLR 92 ..................................................................... 6.80 XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd (1985) 155 CLR 448 ............................. 8.730 XYZ v Victoria Police [2010] VCAT 255 ............................................................................................... 2.90 Xuarez & Vitela [2012] FamCA 574 ................................................................................................... 6.810 xlviii

Table of Cases

Y Y v University of Western Australia [2006] FCA 466 .......................................................................... 5.80 Y & Z v W (2007) 70 NSWLR 377 ......................................................................................... 6.530, 6.550 Yakubowicz v Paramount Pictures Corp 536 NE 2d 1067 (Mass 1989) ........................................ 11.300 Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd [2003] NSWSC 714 ............................ 6.90 Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd [2003] NSWSC 775 ............... 6.550, 6.830 Yorke v Lucas (1985) 158 CLR 661 ............................................................ 13.60, 13.80, 13.360, 13.410 Young v Munro (unreported, NSW Supreme Court, Levine J, 12 May 1995) ............................... 3.1430 Young v Wheeler (1987) Aust Torts Reports 80-1267 ....................................................................... 8.880 Youssoupoff v MGM (1934) 50 TLR 581 ........................................................................................... 3.170

Z ZAM v CFW, TFW [2013] EWHC 662 ............................................................................................... 5.120 Zamora v Columbia Broadcasting System 480 F Supp 199 (SD Fla 1979) .................................. 11.300 Zeran v American Online Inc 129 F 3d 327 (4th Cir 1997) .............................................................. 3.560 Zugic v Croatia (no 3699/08 ............................................................................................................... 6.940

xlix

Table of Statutes COMMONWEALTH Australian Association of National Advertisers (AANA) Code of Ethics: 13.560 s 1: 13.520, 13.530, 13.540 s 1.1: 13.520 s 1.2: 13.520 s 1.3: 13.520 s 1.4: 13.520 s 1.5: 13.520 s 2: 13.520, 13.530 s 2.1: 13.520 s 2.2: 13.520 s 2.3: 13.520 s 2.4: 13.520 s 2.5: 13.520 s 2.6: 13.520 s 2.7: 13.570 Aboriginal Land Rights (Northern Territory) Act 1976 s 70G: 5.450 Access to Justice (Federal Jurisdiction) Amendment Act 2012: 5.390, 5.400 Acts Interpretation Act 1901 s 15AB: 4.80 Administrative Appeals Tribunal Act 1975 s 35: 5.570 s 35AA: 5.570 s 39A: 5.570 s 63: 6.50 Administrative Decisions (Judicial Review) Act 1977: 14.200, 14.1420 Anti-Terrorism Act (No 2) 2005 Sch 7: 10.70 Auditor of Parliamentary Allowances and Entitlements Bill 2000 [No 2]: 4.620 Australia-United States Free Trade Agreement Art 21: 14.1150 Australian Bicentennial Authority Act 1980: 13.430 s 22: 13.430 Australian Broadcasting Corporation Act 1983: 14.20, 14.130 s 6: 14.70 s 6(2)(a): 14.70 s 6(2)(a)(ii): 14.940

s 6A: 14.70, 14.300 s 8(1)(e): 14.70, 14.1310 s 21AA: 14.130 s 26: 14.70 s 27: 14.70 s 31: 14.70 ss 31B to 31C: 14.70 s 78: 14.740 s 79: 14.70 s 79A(1): 4.590 s 79A(2): 4.640 s 79A(3): 4.640 s 79A(5): 4.640 s 79B: 4.640 Australian Capital Territory (Self-Government) Act 1988 s 24: 4.90, 4.160, 4.230, 4.300 s 24(3): 3.730, 4.300 s 24(4): 4.300 Australian Communications and Media Authority Act 2005: 14.20, 14.1360 s 6: 14.1360 s 9: 14.160 s 10: 14.740, 14.1370 s 12: 14.740 s 14: 14.1370 s 16: 14.1370 ss 19 to 35: 14.1360 s 36(2): 14.1370 s 54: 14.1360 s 58: 14.1390 s 84(1): 14.1370 Pt 2, Div 2: 14.1370 Pt 7A: 14.1390 Australian Security Intelligence Organisation Act 1979: 10.180 s 34F: 10.180 s 34G: 10.180 s 34G(5): 10.180 s 34G(6): 10.180 s 34K(10): 10.180 s 34L(2): 10.180 s 34L(3): 10.180 s 34L(4): 10.180 s 34L(6): 10.180 s 34L(7): 10.180 s 34L(8): 10.180 s 34L(10): 10.180 ss 34R(1) to (4): 10.180 li

Australian Media Law Australian Security Intelligence Organisation Act 1979 — cont s 34S: 10.180 s 34ZO: 10.180 s 34ZO(2): 10.180 s 34ZP: 10.180 s 35P: 10.220 s 91: 10.20, 10.220 Bankruptcy Act 1966 s 60(4): 3.500 Broadcasting Act 1942: 14.20, 14.30, 14.1110, 15.40, 15.120 s 4(1): 14.30 s 100(5A): 13.470 s 100(10): 13.470 Broadcasting Amendment (Digital Dividend) Act 2013 (Cth): 14.1270 Broadcasting Legislation Amendment Bill 2007 items 136 to 138: 14.460 item 143: 14.460 item 155: 14.460 Broadcasting Legislation Amendment Bill (No 2) 2001: 14.1230 Broadcasting Legislation Amendment Bill (No 2) 2002: 14.780 Broadcasting Legislation Amendment (Convergence Review and Other Measures) Act 2013: 14.10, 14.70, 14.1020 Broadcasting Legislation Amendment (Convergence Review and Other Measures) Bill 2013: 14.10, 15.530 Item 3: 14.530 Item 5: 14.1020 Broadcasting Legislation Amendment (Digital Dividend and Other Measures) Act 2011: 14.200, 14.280 item 6, para [10]: 14.200 item 6, para [11]: 14.200 Broadcasting Legislation Amendment (Digital Radio) Act 2007: 14.400 Broadcasting Legislation Amendment (Digital Radio) Act 2008: 14.470 Broadcasting Legislation Amendment (Digital Radio) Bill 2007: 14.160, 14.410, 14.420, 14.430, 14.440 item 2: 14.450 item 15: 14.410, 14.450 item 16: 14.500 item 17: 14.450 lii

item 19: 14.450 item 21: 14.450 item 26: 14.440 item 36: 14.200 item 38: 14.590 item 40: 14.490 Item 41: 15.130 item 66: 14.480 item 98: 14.90 item 146: 14.470 item 172: 14.480 item 161: 14.470 Broadcasting Legislation Amendment (Digital Television) Act 2006: 14.250, 14.1340 Broadcasting Legislation Amendment (Digital Television) Bill 2006: 14.250, 14.310, 14.330 Item 13: 14.540 item 35: 14.1230 item 74: 14.1230 Broadcasting Legislation Amendment (Digital Television) Bill 2010: 14.560, 14.570 Broadcasting Legislation Amendment (Digital Television Switch-Over) Act 2008: 14.260 Broadcasting Legislation Amendment (News Media Diversity) Bill 2013: 14.10, 15.530 Broadcasting Legislation Amendment (Regional Commercial Radio) Act 2012: 14.1200 Broadcasting Legislation Amendment (Regional Commercial Radio Local Content) Act 2012: 14.1190 Broadcasting Services Act 1992: 3.1420, 4.580, 4.590, 4.600, 4.640, 9.510, 10.300, 13.410, 14.10, 14.20, 14.30, 14.40, 14.50, 14.60, 14.70, 14.90, 14.120, 14.130, 14.140, 14.160, 14.170, 14.230, 14.410, 14.450, 14.470, 14.490, 14.520, 14.550, 14.560, 14.570, 14.610, 14.630, 14.670, 14.680, 14.690, 14.710, 14.720, 14.820, 14.840, 14.860, 14.930, 14.940, 14.960, 14.970, 14.1000, 14.1010, 14.1110, 14.1160, 14.1170, 14.1180, 14.1230, 14.1240, 14.1250, 14.1260, 14.1270, 14.1280, 14.1340, 14.1350, 14.1370, 14.1380, 14.1390, 14.1400, 14.1420, 14.1440, 14.1460, 15.30, 15.40, 15.50, 15.100, 15.110, 15.120, 15.140, 15.150, 15.200, 15.220, 15.230, 15.270, 15.290, 15.320, 15.330, 15.370, 15.380, 15.460, 15.500, 15.510 s 3: 14.40 s 3(1)(g): 14.1170 s 3(1)(ea): 14.1170 s 3(b): 15.30 s 3(c): 15.30

Table of Statutes Broadcasting Services Act 1992 — cont s 3(e): 14.1150 s 4: 14.40 s 4(2): 4.640 s 4(3A): 14.40 s 5: 14.740 s 5(1)(a): 14.1350 s 5(1)(b): 14.1350 s 5(2): 14.1350 s 6: 14.50, 14.90, 14.100, 14.930, 14.940, 14.1190, 14.1260, 14.1280 s 6(1): 15.180, 15.210, 15.230, 15.260 s 6(1)(a): 14.160 s 6(1)(b): 14.160 s 6(2): 14.50 s 6(3): 15.230 s 8(1): 15.260 s 8(2): 15.260 s 8(3): 15.260 s 8(4): 15.260 s 8(5): 15.260 s 8A: 14.50 s 8AA: 14.440 s 8AB: 14.410 s 8AC: 14.440, 14.510 s 8AC(3)(b): 14.510 s 8AD(1): 14.440 s 8AD(2): 14.440 s 8AD(3): 14.440 s 8AF: 14.1190 s 11: 14.60 s 11A: 14.60 s 13(1): 14.70 ss 13(2) to (4): 14.70 s 13(5): 14.70 s 14: 14.80 s 14(1): 14.80 s 14(2): 14.80 s 15: 14.90 s 16: 14.100 s 17: 14.110 s 18: 14.120 ss 18(1A) to (5): 14.120 s 18(3): 14.510 s 18(4): 14.510 s 18(5): 14.510 s 18A: 14.130 s 19: 14.140 s 19(3): 14.1370 s 20: 14.140 s 21: 14.150 s 21(5): 14.150 s 22: 14.140 s 23: 14.170 s 24: 14.180 s 25: 14.190

s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s

26: 14.200 26(1A): 14.200 26(1B): 14.200 26C: 14.200 26D: 14.200 27(1A): 14.200 27(1B): 14.200 29: 14.200 30: 14.200 31: 14.220 32: 14.220 33: 14.210 34: 14.90, 14.230, 14.650 34(3): 14.230 34(4): 14.230 35C: 14.500 35D(4): 14.500 36: 14.530, 14.590 36(2): 14.530, 14.590 36(3): 14.530, 14.590 36A: 14.590 37(1)(a): 14.690 37(1)(b): 14.700 37(2): 14.700 37A: 14.530 38: 14.530 38A: 14.550 38A(1)(aa): 14.550 38A(2): 14.550 38A(11): 14.700 38B: 14.330, 14.550 38B(24): 14.700 38C: 14.200, 14.550, 14.560, 14.570, 14.740, 17.750, 14.820, 14.1180, 14.1230 s 38C(1): 14.570 s 38C(5): 14.700 s 38C(10): 14.700 s 38C(15): 14.570, 14.900 ss 38C(17) to (20): 14.570 s 38C(24): 14.700 s 39: 14.610 s 39(11): 14.700 s 40: 14.440, 14.540, 14.600, 17.750, 14.1200, 14.1230 s 40(1): 14.940, 14.1020, 14.1030, 14.1180, 14.1190, 14.1200 s 41(1): 14.700 s 41(2): 14.700 s 41(3): 14.700 s 41C: 14.530 s 41D: 14.590 s 41CA: 14.570 s 43: 14.1160 s 43(1): 14.810 s 43(2): 14.810 liii

Australian Media Law Broadcasting Services Act 1992 — cont s 43(3): 14.810 s 43(4): 14.810 s 43(5): 14.810 s 43A: 14.1180 s 43B: 14.1210 s 43B(8): 14.1210 s 43B(9): 14.1210 s 43B(10): 14.1210 s 43C: 14.1200, 14.1220 s 43C(2A)(c): 14.1190 s 43C(2): 14.1200 s 43D: 14.490 s 43D(1)(2): 14.450 s 43AA: 14.570, 14.1180 s 43AA(3B): 14.1180 s 43AA(3): 14.1180 s 43AA(6): 14.1180 s 43AB: 14.570 s 43AC: 14.570 s 43AD: 14.570 s 44: 8.1180 s 44(1): 14.810 s 44(2): 14.810 s 44(2)(a): 14.980 s 45: 14.820 s 46: 14.820 s 47: 14.820 s 47(3): 14.820 s 48: 14.830 s 49: 14.830 s 50A: 14.1190, 15.50, 15.160 s 51: 15.60, 15.160 s 51A: 14.1270, 15.100 s 52A: 14.1460 s 53(1): 15.80 s 53(2): 15.90 s 54: 15.120 s 54A: 14.1270, 15.100 s 54B: 15.130 s 55: 15.110 s 56: 15.140 s 56A: 15.110 s 59(2): 15.180 s 59(3): 15.180 s 59(4): 15.180 s 59(4A): 15.180 s 59(4B): 15.180 s 59(4C): 15.180 s 59(4D): 15.180 s 59(5): 15.180 s 59(6): 15.180 s 61Ay: 15.160 s 61AA: 15.160 s 61AB(1): 15.160 s 61AB(2): 15.160 liv

s 61AC: 15.160 s 61AD: 15.160 s 61AE: 15.160 s 61AF: 15.160 s 61AG: 15.300 s 61AH: 15.300 ss 61AJ to 61AM: 15.290 s 61AL: 15.290 s 61AM: 15.290 s 61AN: 15.310 ss 61AN(4) to (4C): 15.310 s 61AN(9): 15.310 s 61AP: 15.310 s 61AQ: 15.310 s 61AR: 15.310 s 61AS: 15.290 s 61AT: 15.290 s 61AU: 15.160, 15.350 s 61AV: 15.160 s 61AZ: 15.160 s 61BB: 15.190 s 61BC: 15.190 s 61BD: 15.190 s 61BE: 15.190 s 61BF: 15.190 s 61BF(8): 15.190 s 61BG: 15.190 s 61BH: 15.190 s 61CB: 14.1210 s 61CC: 14.1220 s 61CD: 14.1200, 14.1220 s 61CE(1): 14.1220 s 61CR(1): 14.1220 s 61CT: 14.1190 s 61AEA: 15.170 s 61AMA: 15.300 s 61AMB: 15.300 ss 61AMC to 61AMF: 15.290 s 61AME: 15.290 s 61ANA: 15.310 s 61AZA: 15.160 s 61AZB: 15.160 s 61AZC: 15.160 s 61AZD: 15.160 s 61AZE: 15.160 s 61AZF: 15.160 ss 63 to 65B: 15.330 s 65: 15.160 s 65A: 15.330 s 65B: 15.330 s 66: 15.300 s 67: 15.290 s 68: 15.290 s 69: 15.290 s 70: 15.310 s 71: 15.310

Table of Statutes Broadcasting Services Act 1992 — cont s 72: 15.310 s 73: 15.90 s 73A: 15.90 s 74: 15.270 s 75: 15.340 s 77: 15.380 s 78: 15.110 s 79: 14.630, 14.690 s 80: 14.630 s 80(1): 14.690 s 81(1)(a): 14.690 s 81(1)(b): 14.700 s 81(2): 14.700 s 82: 14.640 s 83: 14.690 s 83(1): 14.700 s 83(2): 14.700 s 83(3): 14.700 s 84(1): 14.630 s 84(2): 14.630, 14.650, 14.820 s 84(2)(e): 15.360 s 84(2)(f): 15.360 s 84A: 14.630 s 85: 14.630, 14.640 s 85A: 14.630 s 85A(1): 14.630 s 85A(2): 14.630 s 85A(3): 14.630 s 87(1): 14.810 s 87(2): 14.810 s 87(3): 14.810 s 87(4): 14.810 s 87(5): 14.810 s 87A: 14.780, 14.810 s 87A(7): 14.780 s 87B: 14.450, 14.630 s 88: 8.1180 s 88(1): 14.810 s 88(2): 14.810 s 88(2)(a): 14.980 s 89: 14.820 s 90: 14.820 ss 90(1C) to (1F): 14.820 s 91: 14.820 s 91(3): 14.820 s 91A: 14.830 s 91A(5): 14.830 s 91A(8): 14.830 s 92: 14.830 s 92B: 14.650 s 92C(1): 14.690 s 92C(2): 14.700 s 92D(1): 14.700 s 92D(2): 14.700 s 92D(3): 14.700

s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s

92E: 14.650 92E(1)(a): 15.360 92E(1)(b): 15.360 92F: 14.650 92G: 14.780 92G(1)(a): 14.200 92G(1)(c): 14.820 92G(2): 14.820 92H(b): 14.780 92J(1): 14.810 92J(2): 14.810 92J(2)(a): 14.980 92J(3): 14.810 92J(4): 14.810 92J(5): 14.810 92J(6): 14.810 92J(7): 14.810 92K: 14.820 92L: 14.830 95(1)(a): 14.690 95(1)(b): 14.700 95(2): 14.700 96: 15.370 96(1): 14.30, 14.660 96(2): 14.660 96(5): 15.370 97: 15.370 98(1): 14.700 98(2): 14.700 98(3): 14.700 98D(2): 14.570 99: 14.650 99(2): 14.810 99(4): 14.810 99(5): 14.810 99(6): 14.810 99(7): 14.810 100(1): 14.810 100(2): 14.810 100(2)(a): 14.980 100(3)(a): 14.790 100(3)(b): 14.790 100(4): 14.790 100(4A): 14.790 100(5): 14.790 100(6): 14.790 102: 14.1150 103B: 14.1150 103H: 14.1150 103JA: 14.1150 108A: 14.650 113: 14.830 114: 14.830 115(1): 14.1230 115(1A): 14.1230 115(1B): 14.1230 lv

Australian Media Law Broadcasting Services Act 1992 — cont s 115(1AA): 14.1230 s 115(1AB): 14.1230 s 115(2): 14.1230 s 115(3): 14.1230 s 115A: 14.1250 s 117: 14.670 s 118(1): 14.810 s 118(2): 14.810 s 119(1): 14.810 s 119(2): 14.810 s 119(2)(a): 14.980 s 120: 14.810 s 120(1): 14.810 s 120(2): 14.810 s 121: 14.670, 14.810 s 121B: 14.790 s 121E(2): 14.790, 14.800 s 121G: 14.1020 s 121G(1): 14.1030 s 121G(2): 14.1020, 14.1030 s 121G(2)(c): 14.1020 s 121G(6) to (12): 14.1020 s 121G(13): 14.1020 s 121G(14) to (15): 14.1020 s 121FP: 14.130 s 121FR: 14.1430 s 122(1): 14.940 s 122(2): 14.940 s 122(4): 14.940 s 122(6): 14.1110 s 122(7): 14.940 s 122(8): 14.940 s 122(9): 14.1030 s 122(10): 14.1030 s 122(11): 14.940 s 123: 8.1180, 9.30 s 123(1): 14.950 s 123(2): 14.950 s 123(3): 14.950 s 123(3A) (e): 14.950 s 123(3A)(a): 14.950 s 123(3A)(b): 14.950, 14.990 s 123(3A)(c): 14.950 s 123(3A)(d): 14.950 s 123(3C)(a): 14.950 s 123(3C)(b): 14.950, 14.990 s 123(3C)(c): 14.950 s 123(3C)(d): 14.950 s 123(3C)(e): 14.950 s 123(3E): 14.950 s 123(4): 14.950 s 123(5): 14.370 ss 123(5) to (7): 14.950 s 123(6): 14.490 s 123(7): 14.490 lvi

s 123B: 14.950 s 124(1): 14.950 s 124(2): 14.950 s 124(3): 14.950 s 125: 14.940, 14.1160 s 125(1): 14.940, 14.980, 14.1160 s 125(2): 14.940 s 126: 14.940 s 127: 14.940 s 128: 14.930, 14.960 s 129: 14.940 s 130: 14.970 s 130A: 14.740 s 130A(7): 14.740 s 130K: 14.740 s 130V(1): 14.740 s 130AA: 14.740 s 130AA(3): 14.740 s 130AC: 14.560, 14.740 s 130ZB: 14.560 s 130ZH: 14.560 s 130ZBB: 14.560 s 130ZZA(1): 14.950 ss 131 to 135: 14.850 s 136: 14.850 ss 136A to 136E: 14.860 s 137: 14.870 s 138: 14.870 s 138A: 14.870 s 139: 4.590, 14.730 s 139(1A): 14.890 s 139(1B): 14.890 s 139(1C): 14.890 ss 139(1) to (5): 14.890 s 139(2)(c): 14.890 s 139(3A): 14.890 s 139(3B): 14.890 s 139(3C): 14.890 s 139(6): 14.910 s 140A: 4.590, 14.730, 14.890 s 140A(6): 14.910 s 140A(7): 14.910 s 141: 4.590, 8.1180 s 141(1): 14.890 s 141(2): 14.890 s 141(3): 14.890 s 141(4): 14.910 s 141(5): 14.910 s 141(6): 14.980 s 141(7): 14.980 s 142: 14.890 s 142(4): 14.910, 14.980 s 142A: 14.890, 14.910, 14.980 s 143(1): 14.900 s 143(1A): 14.900 s 143(1B): 14.900

Table of Statutes Broadcasting Services Act 1992 — cont s 143(2): 14.900 s 144: 14.920 s 146C: 14.1240 s 146D: 14.1240 s 147: 14.1440 s 148: 14.1440 s 149: 8.1180, 14.1440 s 150: 14.1450 s 150(2): 14.1450 ss 150 to 153: 14.1440 s 151: 14.1450 s 152(1): 14.1450 s 152(2): 14.1450 s 153: 14.1450 s 160(d): 14.1100 s 168(1): 14.1390 s 168(2): 14.1390 s 169: 14.1400 s 170: 14.740 ss 170 to 180: 14.1400 s 171: 14.1370 s 178: 14.740 ss 182 to 199: 14.1400 s 200: 14.1410 s 201: 6.50, 14.1410 ss 202(1) to (2B): 14.1410 s 202(3): 14.1410 s 202(4): 14.1410 s 203: 14.1410 s 204: 14.1420 s 205: 14.1420 s 205B: 17.750 s 205F: 14.840, 14.860 s 205F(8): 14.860 s 205J: 14.860 s 205L: 14.860 s 205M: 14.860 s 205N: 14.860 s 205Q: 15.300 s 205W: 8.1180 ss 205W(1)(d) to (f): 14.980 s 205X: 8.1180, 14.1380 s 205ZA: 15.330 s 209(1): 14.850 s 209(2): 14.850 s 210: 14.150, 15.270 s 213: 14.850 s 215: 14.860 cl 7(1)(aa): 14.1020 cl 91: 5.220 Ch 14: 14.730, 14.760 Ch 15: 14.730, 14.760, 14.770 Pt 2: 15.230 Pt 3: 14.170 Pt 5: 15.50

Pt 5, Div 5A: 15.150 Pt 5, Div 5B: 15.190 Pt 5, Div 5C: 14.1220 Pt 5, Div 5C, subdiv C: 14.1220 Pt 5A: 15.530 Pt 6A: 14.90 Pt 7, Div 2A: 14.1150 Pt 8B: 14.130 Pt 9: 14.970 Pt 9B: 14.740 Pt 9C: 14.560 Pt 9D: 14.1450 Pt 10: 14.840 Pt 10A: 14.1240 Pt 14A: 14.20 Pt 14C: 14.880 Pt 14E: 15.330 Div 2A: 14.1150 Sch 1: 15.210 Sch 1, cl 2(2): 15.230 Sch 1, cl 2(2A): 15.230 Sch 1, cl 2(2B): 15.230 Sch 1, Pt 1: 15.220 Sch 1, Pt 1, cl 1(1): 15.220 Sch 1, Pt 2: 15.220, 15.230 Sch 1, Pt 2, cl 2(3): 15.230 Sch 1, Pt 2, cl 2(4): 15.220 Sch 1, Pt 2, cl 2(5)(a): 15.230 Sch 1, Pt 2, cl 2(5)(b): 15.230 Sch 1, Pt 2, cl 2(5)(c): 15.230 Sch 1, Pt 2, cl 3(1): 15.230 Sch 1, Pt 2, cl 3(2): 15.230 Sch 1, Pt 2, cl 3(3): 15.230 Sch 1, Pt 2, cl 4: 15.230 Sch 1, Pt 3: 15.240, 15.250 Sch 1, Pt 4: 15.250 Sch 2: 14.710, 14.730, 14.780, 14.810, 14.890, 14.910, 14.1300 Sch 2, cl 1: 4.590, 4.600, 4.640 Sch 2, cl 3(2): 4.590 Sch 2, cl 3(3): 4.590 Sch 2, cl 3A: 4.600 Sch 2, cl 3A(2): 4.600 Sch 2, cl 3A(3): 4.600 Sch 2, cl 3A(4): 4.600 Sch 2, cl 4(3): 4.640 Sch 2, cl 5: 4.640 Sch 2, cl 5(8): 4.640 Sch 2, cl 6: 13.490 Sch 2, cl 7: 9.700 Sch 2, cl 7(1): 14.890 Sch 2, cl 7(1)(c): 15.280 Sch 2, cl 7(1)(g): 14.990 Sch 2, cl 7(1)(q): 15.190 Sch 2, cl 7(1)(ga): 14.990 Sch 2, cl 7(1)(ob): 14.360 lvii

Australian Media Law Broadcasting Services Act 1992 — cont Sch 2, cl 7(2)(b): 14.700 Sch 2, cl 7A: 14.560 Sch 2, cl 7A(1)(a): 14.560 Sch 2, cl 7B: 14.570 Sch 2, cl 7B(5): 14.570 Sch 2, cl 7B(6): 14.570 Sch 2, cl 7C: 14.570 Sch 2, cl 7D: 14.570, 14.1180 Sch 2, cl 7E: 14.570 Sch 2, cl 7F: 14.570 Sch 2, cl 7J: 14.570 Sch 2, cl 8: 15.250 Sch 2, cl 8(1): 14.890 Sch 2, cl 8(1)(c): 15.280 Sch 2, cl 8(1)(j): 15.190 Sch 2, cl 8(2)(b): 14.700 Sch 2, cl 9: 9.700 Sch 2, cl 9(1): 14.890 Sch 2, cl 9(1)(g): 14.990 Sch 2, cl 9(1)(ga): 14.990 Sch 2, cl 9(2)(a): 14.700 Sch 2, cl 9(2)(b): 15.360 Sch 2, cl 9(2B): 14.830 Sch 2, cl 9(3): 14.90 Sch 2, cl 9(4): 14.90 Sch 2, cl 9(5): 14.90 Sch 2, cl 10: 9.700 Sch 2, cl 10(1): 14.890 Sch 2, cl 10(1)(f): 14.990 Sch 2, cl 10(1)(g): 14.990 Sch 2, cl 10(1)(j): 14.660 Sch 2, cl 10(2)(a): 14.700 Sch 2, cl 11(1): 14.910 Sch 2, cl 11(3)(a): 14.990 Sch 2, cl 11(3)(b): 14.990 Sch 2, cl 11(4): 14.990 Sch 2, Pt 2: 14.720 Sch 2, Pt 2, cl 6: 14.720 Sch 2, Pt 3, Div 2: 14.570 Sch 2, Pt 5, cl 9(1)(i): 14.720 Sch 2, Pt 5, cl 9(2)(c): 14.90 Sch 2, Pt 5, cl 9(2AA): 14.90 Sch 2, Pt 6, cl 10(1)(e): 14.1230 Sch 2, cll 7 to 10: 9.440 Sch 4: 14.250, 14.260, 14.270, 14.290, 14.310, 14.330, 14.380 Sch 4, cl 5B: 14.310 Sch 4, cl 5C: 14.320 Sch 4, cl 5D: 14.310 Sch 4, cl 6(3)(k): 14.300 Sch 4, cl 19(3)(k): 14.300 Sch 4, cl 36: 14.300 Sch 4, cl 41: 15.100 Sch 4, cl 62: 14.1420 Sch 4, cl 63: 14.1420 lviii

Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch

4, 4, 4, 4, 5:

Pt 2: 14.260 Pt 3: 14.260 Pt 4A: 14.360 Pt 6: 14.300 9.710, 9.720, 9.770, 9.790, 14.10, 14.50 5, cl 3: 9.720 5, cl 40(1)(b): 9.750 5, cl 40(1)(c): 9.750 5, cl 40(4): 9.750 5, cl 41: 9.750 5, cl 42: 9.750 5, cl 59: 9.770 5, cl 60(1): 9.770 5, cl 60(2): 9.770 5, cl 62: 9.770 5, cl 66: 9.770 5, cl 67: 9.770 5, cll 68 to 72: 9.770 5, cl 73: 9.770 5, cl 88: 9.760 5, cl 91: 3.560, 6.160, 9.760 5, cl 92: 14.1420 5, cl 93: 14.1420 5, cl 94: 14.1370 6: 14.10, 14.1260, 14.1270, 14.1320, 14.1440 6, s 49: 14.1320 6, s 51: 14.1320 6, s 51A: 14.1320 6, cl 2: 14.1270 6, cl 2A: 14.1270 6, cl 3: 14.1280, 14.1290 6, cl 4: 14.1280, 14.1290 6, cl 4(1)(a): 14.1290 6, cl 4(8): 14.1290 6, cl 5: 14.1280 6, cl 6: 14.1260 6, cl 6(4): 14.1280 6, cl 8(1): 14.1270 6, cl 8(2): 14.1270 6, cl 12: 14.1270 6, cl 12A: 14.1270 6, cl 13(4): 14.1280 6, cl 13(5): 14.1280 6, cl 15(4): 14.1280 6, cl 15(5): 14.1280 6, cl 21(4): 14.1280 6, cl 21(5): 14.1280 6, cl 24(1)(a): 14.1300 6, cl 24(4): 14.1300 6, cl 24(5): 14.1300 6, cl 24A: 14.1300 6, cl 24A(b): 14.1280 6, cl 25: 14.1300 6, cl 26: 14.1300

Table of Statutes Broadcasting Services Act 1992 — cont Sch 6, cl 27A: 14.1290 Sch 6, cl 28(1): 14.1310 Sch 6, cl 28(2): 14.1310 Sch 6, cl 35: 14.1310 Sch 6, cl 35A: 14.1310 Sch 6, cl 36: 14.1440 Sch 6, cl 37: 14.1440 Sch 6, cl 37(2): 14.1440 Sch 6, cl 38: 14.1440 Sch 6, cl 41: 14.1270 Sch 6, cl 41(3): 14.1270 Sch 6, cl 52: 14.1320 Sch 6, cl 58: 14.1420 Sch 6, cl 59: 14.1420 Sch 6, Pt 7: 14.1270 Sch 6, Pt 8: 14.1320 Sch 6, cll 7 to 12A: 14.1270 Sch 6, cll 13 to 16: 14.1280 Sch 6, cll 17 to 20AA: 14.1290 Sch 6, cll 21 to 23A: 14.1280 Sch 6, cll 22 to 23A: 14.1290 Sch 6, cll 24(1)(b) to (h): 14.1300 Sch 6, cll 31 to 34: 14.1310 Sch 7: 9.710, 9.770, 9.790, 14.10, 14.50 Sch 7, cl 2: 9.710 Sch 7, cl 3: 9.710 Sch 7, cl 4: 9.710 Sch 7, cl 8: 9.710 Sch 7, cl 14: 9.720 Sch 7, cl 20: 9.720 Sch 7, cl 21: 9.720 Sch 7, cl 37: 9.730 Sch 7, cl 41: 9.730 Sch 7, cl 44: 9.730 Sch 7, cl 47: 9.740 Sch 7, cl 52: 9.740 Sch 7, cl 56: 9.740 Sch 7, cl 59A: 9.740 Sch 7, cl 62: 9.740 Sch 7, cl 67: 9.740 Sch 7, cl 80: 9.770 Sch 7, cl 81: 9.770 Sch 7, cl 85: 9.770 Sch 7, cl 89: 9.770 Sch 7, cl 90: 9.770 Sch 7, cl 96: 9.770 Sch 7, cl 111: 9.760 Sch 7, cl 113: 14.1420 Sch 7, cl 114: 14.1370 Sch 7, cll 91 to 94: 9.770 Pf 9D: 14.740 61AMF 61AMF: 15.290 Broadcasting Services Amendment Act 1998: 14.1240

Broadcasting Services Amendment Act (No 3) 1999: 14.1150 Broadcasting Services Amendment Act 2000: 14.130 Broadcasting Services Amendment Bill 1998: 14.1240 Broadcasting Services Amendment Bill (No 1) 1999: 14.1240 Broadcasting Services Amendment Bill 2000: 14.130 Broadcasting Services Amendment (Digital Television and Datacasting) Act 2000: 14.250, 14.1260 Broadcasting Services Amendment (Media Ownership) Act 2006: 15.30, 15.50, 15.150, 15.160, 15.500 Sch 2: 14.1180, 14.1190, 15.150 Broadcasting Services Amendment (Media Ownership) Bill 2006: 15.160, 15.490, 15.510 Broadcasting Services Amendment (Regional Commercial Radio) Act 2012 Sch 2: 14.1210 Broadcasting Services Amendment (Regional Commercial Radio) Bill 2011: 14.1190 Broadcasting Services Amendment (Subscription Television Drama and Community Broadcasting Licences) Bill 2006: 14.830 Broadcasting Services (Australian Content) Standard 2005: 14.1000, 14.1020, 14.1030 cl 4: 14.1010 cl 6: 14.1040, 14.1060, 14.1070 cl 6(5): 14.1040 cl 6C: 14.1060 cl 7: 14.1200 cl 7(1): 14.1040 cl 7(4): 14.1040 cl 8: 14.1050 cl 10: 14.1060 cl 10(1A): 14.1060 cl 10(2A): 14.1060 cl 10(3): 14.1060 cl 10(4): 14.1060 cl 10(5): 14.1060 cl 10(6): 14.1060 cl 10(7): 14.1060 cl 11: 14.1060 cl 12: 14.1080 cl 12(3): 14.1080 cl 12A: 14.1080 cl 13: 14.1080 lix

Australian Media Law Broadcasting Services (Australian Content) Standard 2005 — cont cl 14: 14.1090 cl 15: 14.1090 cl 16: 14.1070 cl 17: 14.1060 cl 18: 14.1100 cl 19: 14.1100 cl 20: 14.1100 cl 21: 14.1030 Sch 2, Pt 6, cl 10(1B): 14.1230 Broadcasting Services Bill 1992 cl 3: 14.40 cl 6: 14.50 cl 14: 14.80 cl 15: 14.90 cl 17: 14.120 cl 23: 14.170 cl 26: 14.200 cl 54: 15.120 cl 75: 15.340 Pt 5: 15.220 Pt 5, Div 8: 15.310 Pt 10, Div 1: 14.850 Broadcasting Services (Commercial Radio Advertising) Standard 2000: 14.1160 Broadcasting Services (Commercial Radio Advertising) Standard 2012: 14.1160 Broadcasting Services (Commercial Radio Compliance Program) Standard 2000: 14.1160 Broadcasting Services (Commercial Radio Current Affairs Disclosure) Standard 2000: 14.850, 14.1160 Broadcasting Services (Deemed Digital Radio Licence Areas) Determination 2007: 14.440 Broadcasting Services (Hours of Local Content) Regulations 2007: 14.1200, 14.1220 Broadcasting Services Legislation Amendment Bill 1997 Item 2: 15.180 Broadcasting Services (Meaning of Local) Instrument 2007: 14.1220 Broadcasting Services (Media Ownership) Amendment Bill 2006: 15.490 Broadcasting Services (Regional Commercial Radio) Regulation 2013: 14.1210 Broadcasting and Other Legislation Amendment (Deregulation) Bill 2014 lx

item 2: 14.190 Charter of Political Honesty Bill 2000: 4.620 Civil Aviation (Damage by Aircraft) Act 1958: 8.720 Classification (Publications, Films and Computer Games) Act 1995: 9.640, 9.650, 9.690, 10.290, 14.10, 14.810, 14.950 s 9A: 9.690, 10.290 s 9A(2): 9.690, 10.290 s 9A(3): 9.690, 10.290 s 11: 9.660 s 39: 9.680 s 42: 9.680 Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Act 2007: 9.690, 10.290 Commonwealth Electoral Act 1918: 4.580, 4.620 s 4(1): 4.610 s 4(9): 4.610 s 161: 4.620 s 328(1): 4.610 s 328(1)(b): 4.610 s 328(1A): 4.610 s 328(3): 4.610 s 328(5): 4.610 s 328A: 4.610 s 328A(2): 4.610 s 328A(3): 4.610 s 329: 4.620 s 329(2): 4.620 s 331: 4.610 s 350: 4.630 Commonwealth Electoral Legislation Amendment Act 1983: 4.620 Commonwealth of Australia Constitution Act 1901: 2.80, 2.90, 2.100, 3.730, 3.970, 3.990, 3.1100, 4.170, 4.240, 6.780 s 1: 2.90 s 6: 2.90 s 7: 2.90, 3.970 s 8: 2.90 s 13: 2.90 s 24: 2.90, 3.970 s 25: 2.90 s 28: 2.90 s 30: 2.90 s 49: 2.90, 4.170, 4.240 s 51(xxxvi): 4.170 s 51(xxxix): 4.170 s 51(xxix): 14.20 s 51(i): 14.20 s 51(v): 13.440, 14.20, 14.1400

Table of Statutes Commonwealth of Australia Constitution Act 1901 — cont s 51(xx): 14.20 s 57: 4.80 s 62: 2.90 s 64: 2.90 s 71: 5.40 s 83: 2.90 s 92: 13.480 s 122: 14.20 s 128: 2.90, 3.970 Ch III: 2.90, 4.170, 5.40 Communications Legislation Amendment Bill (No 1) 1997: 14.90 Communications Legislation Amendment (Content Services) Act 2007: 9.710 Communications Legislation Amendment (Enforcement Powers) Act 2006: 14.840 Communications Legislation Amendment (Enforcement Powers) Bill 2006: 14.840, 15.330 Competition and Consumer Act 2010: 14.970, 14.1460, 15.30, 15.40, 15.50, 15.160, 15.360, 15.370, 15.380, 15.390, 15.400, 15.410, 15.460, 15.490 s 6: 3.1410, 13.20 s 50: 15.150, 15.370, 15.400, 15.410, 15.420, 15.430, 15.440, 15.450, 15.490 s 50(3): 15.400, 15.460, 15.490 s 50(6): 15.400 s 51(1)(a): 14.970 s 87B: 15.420, 15.430 s 95AZ: 15.440 s 95AZH(1): 15.440 s 95AZH(2): 15.440 s 106: 5.570 s 131: 13.20 Pt IV: 14.970 Pt VII, Div 3, subdiv B: 15.430 Pt VII, Div 3, subdiv C: 15.440 Schedule 2 Australian Consumer Law: 3.1410, 8.890, 13.20, 13.40, 13.100, 13.150, 13.160, 13.170, 13.220, 13.230, 13.250, 13.260, 13.270, 13.280, 13.290, 13.300, 13.310, 13.410, 13.430 s 2: 3.1420, 13.20, 13.40, 13.230, 13.360 s 9: 3.1410 s 18: 3.1370, 3.1400, 3.1410, 3.1420, 3.1430, 3.1450, 8.890, 8.990, 13.20, 13.30, 13.40, 13.60, 13.190, 13.230, 13.350, 13.360, 13.410 s 19: 3.1420, 3.1430, 8.910, 13.410, 13.420

s 19(2): 3.1430 s 19(4): 3.1450, 13.410 s 19(5): 3.1420 s 19(6): 3.1420 s 29: 3.1420, 8.990, 13.120, 13.410 s 29(1)(a): 13.120, 13.230 s 29(1)(b): 13.130 s 29(1)(c): 13.140 s 29(1)(d): 13.150 s 29(1)(e): 13.160 s 29(1)(f): 13.160 s 29(1)(g): 13.170, 13.430 s 29(1)(h): 13.180, 13.430 s 29(1)(i): 13.190, 13.400 s 29(1)(j): 13.200 s 29(1)(k): 13.210 s 29(1)(l): 13.240 s 29(1)(m): 13.250 s 29(2): 13.160 s 29(3): 13.160 s 30: 13.270 s 31: 13.280 s 32(1): 13.300 s 32(2): 13.300 s 33: 13.300 s 34: 13.300 s 35: 13.300 s 36: 13.300 s 37: 13.290 s 38: 3.1420, 13.410 s 38(3): 3.1450, 13.410 ss 39 to 43: 13.300 ss 44 to 46: 13.300 s 49: 13.300 s 54: 13.250 s 151(1)(a): 13.230 s 151(1)(k): 13.230 ss 151(1)(g) to (h): 13.430 ss 151 to 167: 13.350 s 160: 13.410 s 160(4): 3.1450, 13.410 ss 161 to 163: 13.300 ss 207 to 208: 13.390 s 209: 13.390, 13.400 s 224(2): 13.350 s 227: 13.350 s 232: 13.320, 13.370 s 236: 13.330 s 237: 13.340 s 243: 13.340 s 247: 13.370 s 255: 13.230 s 255(3): 13.230 s 256: 13.230 Copyright Act 1968: 12.60, 12.160, 12.230 lxi

Australian Media Law Copyright Act 1968 — cont s 10(1): 12.70, 12.90, 12.120, 12.160, 12.180, 12.200, 12.230 ss 10(2) to (2C): 12.410 s 14(1): 12.300 s 22(3)(b): 12.210 s 22(4)(b): 12.210 s 22(5): 12.210 s 29: 12.50 s 31: 12.200 s 31(1)(a)(iv): 12.200 s 32: 12.100 s 32(4): 12.50 s 33(2): 12.130 s 33(3): 12.130 s 33(5): 12.130 s 35(2): 12.210 s 35(3): 12.210 s 35(4): 12.220 s 35(5): 12.210 s 35(6): 12.220 s 35(7): 12.200, 12.210 s 36(1): 12.360 s 36(1A): 12.360 s 39A(b): 12.360 s 40: 12.410 s 41: 12.410 s 41A: 12.410 s 42: 12.410 s 43: 12.410 s 43C: 12.420 ss 44A to 44F: 12.420 s 84: 12.50 s 85: 12.120, 12.200 s 86: 12.120, 12.200 s 87: 12.120, 12.200 s 88: 12.120, 12.200 s 89: 12.50, 12.120 s 90: 12.50, 12.120 s 91: 12.50, 12.120 s 92: 12.120 s 93: 12.140 s 94: 12.140 s 95: 12.140 s 96: 12.140 s 97(3): 12.210 ss 97 to 99: 12.210 s 98(3): 12.210 s 98(4): 12.210 s 98(5): 12.210 s 100: 12.210 s 101(1): 12.360 s 101(1A): 12.360 s 103A: 12.410 s 103B: 12.410 s 103C: 12.410 lxii

s 103AA: 12.410 s 104: 12.410 s 104B(b): 12.360 s 109A: 12.420 s 110AA: 12.420 s 111: 12.420, 12.430 s 112D: 12.420 s 112DA: 12.420 s 189: 12.190 s 190: 12.190 s 195AA: 12.190 s 195AB: 12.190 ss 195AJ to 195AL: 12.190 s 195AN: 12.190 s 195AO: 12.190 s 195AP: 12.190 s 195AQ: 12.190 s 195AR: 12.190 s 195AS: 12.190 s 195AW: 12.190 s 195AWA: 12.190 s 196(1): 12.230 s 196(2): 12.230 Pt VIII: 12.50 Pt V, Div 2: 12.340 Pt V, Div 5: 12.340 Pt V, Div 7: 12.340 Pt IV: 12.120 Pt IX, Div 2: 12.190 Pt IX, Div 3: 12.190 Pt IX, Div 4: 12.190 Pt VA: 12.230 Pt VB: 12.230 Pt III: 12.70 Pt XIA: 12.10 Div 4A: 12.420 Copyright (International Protection) Regulations 1969: 12.50 Copyright Regulations 1969 reg 4B: 12.360 reg 17A: 12.360 Sch 3: 12.360 Corporations Act 2001: 3.820, 14.690 Pt 2A.2: 14.130, 14.690, 14.1270 Pt 8B, Div 4A: 14.130 Court Information Act 2010: 5.680 Court Security Act 2013 s 17: 5.640 s 18: 5.640 Crimes Act 1914: 7.550, 10.20, 10.60, 10.70, 10.220 s 3ZQN: 10.150 s 3ZQP: 10.150

Table of Statutes Crimes Act 1914 — cont ss 3ZQP(a) to (c): 10.150 s 3ZQP(d): 10.150 s 3ZQP(e): 10.150 ss 3ZQP(f) to (g): 10.150 ss 3ZQP(h) to (i): 10.150 ss 3ZQP(j) to (k): 10.150 s 3ZQR: 10.150 s 3ZQS: 10.150 s 3ZQT: 10.150 s 7A: 10.60 s 15HK: 10.220 s 15HL: 10.220 s 15YP: 5.570 s 15YR: 5.570 s 20C(1): 5.570 s 24: 10.60 ss 24A to 24F: 10.60 s 24AA: 10.60 s 24AB: 10.60 s 25: 10.60 s 70(1): 7.560 s 79: 10.20 s 85B: 5.570 Criminal Code s 7.3: 9.690, 10.290 ss 80.2 to 80.3: 2.110 s 141.1: 4.400 s 142.1: 4.400 Criminal Code 1995: 10.20 s 13.3(6): 10.120 s 80.1: 10.70 s 80.2: 10.70, 10.80 s 80.2(1): 10.80 s 80.2(2): 10.80 s 80.2(3): 10.80 s 80.2(4): 10.80 s 80.2(5): 9.450 s 80.2A: 10.80 s 80.2A(1): 10.80 s 80.2A(2): 10.80 ss 80.2A to 80.2B: 9.30, 9.500 s 80.2B: 10.80 s 80.2B(1): 10.80 s 80.2B(2): 10.80 s 80.3: 10.90 s 80.3(a): 10.90 s 80.3(b): 10.90 s 80.3(c): 10.90 s 80.3(d): 10.90 s 80.3(e): 10.90 s 80.3(f): 10.90 s 91.1: 10.20 s 93.2: 5.570 s 101.1: 9.690, 10.250, 10.260

s 101.5: 10.120, 10.130 s 101.5(5): 10.120, 10.130 s 102.1: 10.210 s 102.1(1): 10.110 s 102.1(1A): 9.690, 10.290 ss 102.1(1A) to (2A): 10.110 s 102.4: 10.210 s 102.6: 10.200 s 102.7: 10.110 s 102.8: 10.110 s 102.8(5): 10.110 s 103: 10.200 s 105.4: 10.170 s 105.7: 10.170 s 105.41: 10.170 s 105.41(6): 10.170 s 119.2: 10.230 s 119.2(3): 10.230 s 119.7: 10.210 s 119.7(2): 10.210 s 119.7(3): 10.210 Pt 5.1: 10.80 Div 105: 10.170 Criminal Procedure Further Amendment (Evidence) Bill 2005: 5.570 Customs (Prohibited Imports) Regulations: 9.440 Datacasting Charge (Imposition) Act 1998: 14.300, 14.1260 Electoral Amendment (Political Honesty) Bill 2000: 4.620 Electoral and Referendum Amendment Act 1984: 4.620 Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Bill 2006 cl 72: 4.610 cl 75: 4.610 cl 76: 4.610 Electoral and Referendum Legislation Amendment Act 2007: 4.630 Evidence Act 1995: 7.680 s 4: 7.680 s 126G: 7.660 s 126G(1): 7.670 s 126H: 7.660, 7.680 s 126H(1): 7.670 s 126H(2): 7.670 s 129: 5.820 s 131A: 7.660, 7.680 s 131B: 7.660 Evidence Amendment (Journalists’ Privilege) Act 2007: 7.650 lxiii

Australian Media Law Evidence Amendment (Journalists’ Privilege) Act 2011: 7.650

Foreign Acquisitions and Takeovers (Notices) Regulations 1975: 15.510

Evidence Amendment (Journalists’ Privilege) Bill 2011: 7.660, 7.670

Foreign Acquisitions and Takeovers Regulations 1989: 15.510 s 12: 15.510

Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Radio) Bill 2007 Item 18: 14.500 Fair Work Act 2009 s 577: 5.570 s 593: 5.570 s 594: 5.570 s 601: 5.570 Family Court of Australia 1975 s o7(1A): 5.400 s 97(1): 5.400 s 97(2): 5.400 Pt XIA: 5.400 Family Law Act 1975: 5.40 s 21(2): 6.40 s 97: 5.570 s 121: 5.570 Pt XIA: 5.570 Family Law Rules 2004 r 24.13: 5.675 Federal Circuit Court of Australia Act 1999 s 13(1): 5.400 s 13(2): 5.400 s 13(7): 5.400 Pt 6A: 5.400 Federal Court Rules 2011 r 2.32: 5.675 r 2.32(2): 5.675 r 2.32(3): 5.675 r 2.32(4): 5.675 r 6.11: 5.640 r 7.22: 7.590 r 20.03: 5.770 Federal Court of Australia Act 1976 s 5(2): 6.40 s 17(1): 5.400 s 17(4): 5.400 Pt VAA: 5.400 Foreign Acquisitions and Takeovers Act 1975: 14.1460, 15.40, 15.120, 15.510 s 5: 15.510 s 9: 15.510 s 17H: 15.510 s 18: 15.510 lxiv

Freedom of Information Act 1982: 7.20 s 7: 7.40 s 11: 7.20 s 15(5): 7.30 s 34: 7.40 Sch 2, Pt I: 7.40 High Court Rules 2004 r 4.07.4: 5.675 r 41.05: 5.660 r 41.06: 5.660 r 41.07: 5.660 High Court of Australia Act 1979 s 5: 6.40 Human Cloning and Other Prohibited Practices Amendment Bill 2007: 4.440 Human Rights and Equal Opportunity Commission Act 1986 s 46P: 9.360 s 46PH: 9.360 s 46PO(4): 9.360 Industrial Relations Act 1988: 6.940 Intelligence Security (Consequential Amendments) Act 1986 ss 1 to 14: 10.60 Intelligence Services Act 2001 s 41: 10.20 Judiciary Act 1903 s 15: 5.400 s 16: 5.400 s 78B: 6.940 Pt XAA: 5.400 Jury Exemption Act 1965: 4.240 Legislative Assembly Privileges Bill (1998): 4.300 Listening Devices Act: 8.110 Migration Act 1958 s 365: 5.570 s 378: 5.570 National Classification Code 2005: 9.660 National Security Information (Criminal and Civil Proceedings) Act 2004 Pt 3: 5.570 Pt 3A: 5.570

Table of Statutes National Security Legislation Amendment Act 2010: 10.80

Political Broadcasts and Political Disclosures Act 1991: 2.100, 4.600

News Media (Self-regulation) Bill 2013: 14.10

Privacy Act 1988: 8.20, 8.30, 14.1520 s 6: 8.40 s 6(1): 8.20, 8.30 s 6D: 8.30 s 7B(4): 8.40, 14.1520 s 41(2)(a): 8.50 s 52: 8.50 Sch 1: 8.30

News Media (Self-regulation) (Consequential Amendments) Bill 2013: 14.10 Northern Territory (Self-Government) Act 1978 s 12: 4.230 Olympic Insignia Protection Act 1987: 13.430 Parliamentary Papers Act 1908: 4.240 s 4: 4.70 Parliamentary Precincts Act 1988 s 6: 4.560 Parliamentary Privileges Act 1987: 4.90, 4.240, 4.300, 4.310, 4.490 s 3: 4.30, 4.90 s 4: 4.200 s 5: 4.240 s 6(2): 4.390 s 7(1): 4.240 s 7(2): 4.240 s 7(5): 4.240 s 9: 4.210, 4.240 s 10: 4.40 s 12(1): 4.490 s 12(2): 4.490 s 12(3): 4.490 s 13: 4.480 s 16: 4.30, 4.70, 4.90, 4.140, 4.160, 4.170 s 16(1): 3.730, 4.90 s 16(2): 4.160 s 16(2)(c): 4.160 s 16(3): 3.730, 4.90, 4.130, 4.140, 4.170, 4.500 s 16(3)(a): 4.90 s 16(3)(b): 4.90 s 16(3)(c): 4.90 s 16(4): 4.90 s 16(5): 4.80 s 16(6): 4.80 Parliamentary Privileges Bill 1987: 4.90 cl 6: 4.390 Parliamentary Proceedings Broadcasting Act 1946: 4.240, 4.530, 4.540, 14.70 s 4(1): 4.530 s 4(2): 4.540 s 4(3): 4.540 s 12: 4.530 s 14: 4.530 s 15: 4.40, 4.530 s 16: 4.590, 4.640

Privacy Amendment Act 2000: 8.20 Privacy Amendment (Enhancing Privacy Protection) Bill 2012: 8.30 Provisions of the Government Advertising (Objectivity, Fairness and Accountability) Bill 2000: 4.620 Public Governance, Performance and Accountability Act 2013: 14.70 Public Interest Disclosure Act 2013 s 10: 7.500 Public Interest Media Advocate Bill 2013: 14.10 Public Service Act 1999: 14.1360 Racial Discrimination Act 1975: 9.30, 9.180, 9.250 s 18C: 2.110, 9.30, 9.70, 9.80, 9.190, 9.290, 9.300, 9.310, 9.360 s 18C(2): 9.40 s 18D: 9.30, 9.290, 9.300, 9.310, 9.350, 9.360 s 18F: 9.20 Radio Licence Fees Act 1964: 14.20 Radiocommunications Act 1992: 14.10, 14.20, 14.160, 14.200, 14.230, 14.450, 14.470, 14.480, 14.530, 14.650, 14.1260, 14.1270, 14.1340, 17.750 s 5: 14.470, 14.1340 s 9C: 14.470 s 31(1): 14.160 s 31(1A): 14.160, 14.660, 14.740 s 31(1C): 14.160 s 44A: 14.450 s 98A: 14.1340 s 98B: 14.1340 s 98C: 14.460, 14.470 s 98D: 14.460, 14.470 s 98E: 14.460 s 100: 14.230 s 100A: 14.1260, 14.1270 s 101A: 14.650 s 102: 14.530, 14.630, 14.760 lxv

Australian Media Law Radiocommunications Act 1992 — cont s 102(3): 14.1260 s 102(3): 14.1270 s 102(5): 14.1260 s 102(5): 14.1270 s 102C: 14.470 s 102C(3): 14.470 s 102C(4): 14.470 s 102D: 14.470 s 102E: 14.470 s 102F: 14.460 s 103(6): 14.450 s 106: 14.470, 14.660, 14.670 s 108A(1)(d): 14.210 s 109: 14.530 s 109(1)(d): 14.200 s 109(1)(e): 14.210 s 109A: 14.1300, 14.1340 s 109A(1)(h): 14.1340 s 109A(1)(ia): 14.1340 ss 109A(1)(ib) to (ie): 14.1340 s 109A(ia): 14.1340 s 109B: 14.450 s 118P: 14.480 s 118ND: 14.480 s 118NF: 14.480 s 118NJ: 14.480 s 118NK: 14.480 s 118NL: 14.480 s 118NM: 14.480 s 118NN: 14.480 s 118NQ: 14.480 s 118NR: 14.480 s 118NS: 14.480 s 118NT: 14.480 s 118NU: 14.480 s 118NV: 14.480 s 118NZ: 14.480 Referendum (Machinery Provisions) Act 1984: 4.580 s 121(1): 4.610 s 121(1A): 4.610 s 121(3): 4.610 s 121A: 4.610 s 121A(2): 4.610 s 121A(3): 4.610 s 122: 4.620 s 124: 4.610 Royal Commissions Act 1902 s 6O(1): 6.50 s 7: 3.740 Special Broadcasting Service Act 1991: 14.20 s 6: 14.70 s 6A: 14.70, 14.300 s 10(1)(j): 14.70, 14.1310 lxvi

s s s s s s s s s s

12: 14.740 45: 14.70 48: 14.70 70: 14.70 70A(1): 4.590 70A(2): 4.640 70A(3): 4.640 70A(5): 4.640 70B: 4.640 70C: 4.600

Statute Law (Miscellaneous Provisions) Bill (No 2) 1984: 3.1420 Statutory Rules 1935: 15.20 Supreme Court (General Civil Procedure) Rules 2005 s 80: 6.100 Sydney 2000 Games (Indicia and Images) Protection Act 1996: 13.430 s 8: 13.430 s 9: 13.430 s 24: 13.430 Telecommunications Act 1997: 14.10, 14.20 Telecommunications (Interception and Access) Act 1979: 8.80, 8.100, 8.110 s 5: 8.90 s 6(1): 8.90 s 7(1): 8.90 ss 7(2) to (5): 8.130 s 63: 8.120 s 105: 8.140 s 107A: 8.140 Television Broadcasting Services (Digital Conversion) Act 1998: 14.250 Television Broadcasting Services (Digital Conversion) Bill 1998: 14.240 Television Licence Fees Act 1964: 14.20 Television Licence Fees Amendment Act 2013: 14.10 Television Licence Fees Amendment Bill 2013: 14.10, 15.530 Therapeutic Goods Act 1989: 13.490, 14.720 Tobacco Advertising Prohibition Act 1992: 13.440, 14.740 s 6: 13.460 ss 6(2) to (3): 13.460 s 8: 13.440 s 9(1): 13.440 s 13: 13.440 s 14: 13.460

Table of Statutes Tobacco Advertising Prohibition Act 1992 — cont s 15: 13.440 s 16: 13.460 s 17: 13.460 s 18: 13.460 s 19: 13.460 s 20: 13.460 s 21: 13.460 s 22: 13.460 Trade Practices Act 1974: 13.20, 13.190, 15.30, 15.380 s 29(1)(k): 13.220 s 52: 3.1440 s 65A: 3.1440 Trade Practices (Origin Labelling) Bill 1994: 13.210 US Free Trade Agreement Implementation Act 2004: 14.1120 Sch 9, Pt 6: 12.150 Wireless Telegraphy Act 1905: 15.20 Witness Protection Act 1994 s 28: 5.570

AUSTRALIAN CAPITAL TERRITORY Adoption Act 1993 s 60: 5.570 s 96: 5.570 s 97: 5.570 s 112: 5.570 s 113: 5.570 s 114: 5.570, 5.675 Children and Young People Act 2008 s 77: 5.570 s 710: 5.570 Civil Laws (Wrongs) Act 2002 s 34: 11.70, 11.170 s 35(1): 11.70 ss 42 to 43: 11.80 s 45: 11.90 s 118: 3.30 s 119: 3.70 s 121: 3.520, 3.1410 s 122(b): 3.550 s 123(2): 3.480 s 123(3): 3.40 s 126(2): 3.580 s 127: 3.580 s 128: 3.580 s 129: 3.580 s 130: 3.580, 3.600, 3.620

s 132: 3.630 s 134: 3.30 s 134(1): 3.640 s 134(2): 3.1090 s 135: 3.650 ss 135 to 139D: 3.640 s 136: 3.710 s 137: 3.720, 4.40 s 137(2)(a): 3.730, 4.70 s 137(2)(b): 3.740 s 138: 3.790, 4.70 s 138(4): 3.790 s 139: 3.820, 3.830, 4.40 s 139(3): 3.850 s 139A: 3.1050 s 139A(4): 3.1090 s 139B: 3.1180 s 139B(2): 3.1180 s 139B(3): 3.1180 s 139B(4): 3.1220 s 139C: 3.1250 s 139D: 3.1280 s 139E: 3.1330 s 139F: 3.1330 s 139F(2): 3.1340 s 139G: 3.1330 s 139H: 3.1350 s 139I: 3.1360 s 139K: 3.1380 s 139M: 3.670 Ch 9: 3.30 Civil and Administrative Tribunal Act 2008 s 71: 9.360 Classification (Publications, Films and Computer Games) (Enforcement Act) 1995: 9.640 s 9: 9.670 s 16: 9.670 s 22: 9.670 s 26: 9.670 s 27: 9.670 Coroners Act 1997 s 4(3): 6.40 s 40: 5.570 s 99A: 6.50 s 99A(2): 6.50 Court Procedures Act 2004 s 41: 5.410 s 50: 5.410 s 72: 5.570 Court Procedures Rules 2006 r 29.03(2): 5.675 r 40.53(2): 5.675 r 650: 7.590 lxvii

Australian Media Law Crimes Act 1900 s 439: 3.1470 s 439(1): 3.1480, 3.1510, 3.1530, 3.1540 s 439(2): 3.1520 s 439(4): 3.1550 s 439(8): 3.1490, 3.1500 Criminal Code 2002 s 712A: 5.570 Discrimination Act 1991 s 4: 9.190 s 66: 9.30 s 67: 9.30 Domestic Violence and Protection Orders Act 2008 s 111: 5.570 s 112: 5.570 Electoral Act 1992: 4.580 ss 291 to 295: 4.610 s 292: 4.610 s 296: 4.610 s 297: 4.620 s 298: 4.620 s 300: 4.630

s 35: 7.40 Human Rights Act 2004: 5.20 s 16: 6.940 s 21: 4.180 Information Privacy Act 2014: 8.60 Juries Act 1967 s 42C: 5.830, 5.840 s 42C(2): 5.830, 5.840 s 42C(3): 5.830, 5.840 s 42C(4): 5.830, 5.840 ss 42C(5)(a) to (c): 5.830 s 42C(5)(d): 5.830 s 42C(5)(e): 5.830 ss 42C(6)(a) to (c): 5.830 s 42C(6)(d): 5.830 s 42C(7)(a): 5.830 s 42C(7)(b): 5.830 s 42C(8)(a): 5.840 s 42C(8)(b): 5.840 s 42C(10): 5.830 s 42C(11): 5.830 Law Reform (Repeal and Consolidation) 1996 s 4: 9.440

Electoral Legislation Amendment Bill 2007 cl 100: 4.610

Legislative Assembly (Broadcasting) Act 2001: 4.570

Evidence Act 2011 s 4: 7.680 ss 126A to 126F: 7.650 s 126J: 7.670 ss 126J to 126L: 7.660 s 126K(1): 7.670 s 126K(2): 7.670 s 131A: 7.660, 7.680

Listening Devices Act 1992: 8.80, 8.150 s 2: 8.170 s 4: 8.280 s 4(1): 8.210 s 4(2): 8.320 s 4(3)(b): 8.250 s 5(2): 8.270 s 6(1): 8.260, 8.330 s 6(2): 8.360 s 6(2)(a)(iv): 8.360 s 6(2)(b): 8.360

Evidence Amendment Act 2011: 7.650 Evidence (Miscellaneous Provisions) Act 1991 s 37: 5.570 s 38: 5.570 s 39: 5.570 s 40: 5.570 s 40R: 5.570 s 81D: 5.410 s 110: 5.410, 5.570 s 111: 5.410, 5.570 s 111(4): 5.410 s 112: 5.410, 5.570

Magistrates Court Act 1930 s 310(1): 5.410 s 310(2)(a): 5.410 s 310(2)(b): 5.410 s 310(2)(c): 5.410 s 310(4): 5.410 Public Interest Disclosures Act 2012 s 15: 7.500 s 35: 3.770, 7.500

Fair Trading Act 1992 s 7: 3.1410, 8.890, 13.20

Royal Commissions Act 1991 s 19: 3.740

Freedom of Information Act 1989: 7.20 s 10: 7.20 s 18: 7.30

Supreme Court Act 1933 s 3(2): 6.40 s 22: 3.300

lxviii

Table of Statutes Tobacco Act 1927 s 10: 13.460 Witness Protection Act 1996 s 16: 5.570 Wrongs Act 2002 s 59: 8.980

NEW SOUTH WALES

Civil Liability Act 2002 s 5B: 11.80 s 5D: 11.90 s 31: 11.70 s 32: 11.70, 11.170 s 74: 8.1000, 8.1060 s 74(4): 8.1100 s 75: 8.1110 s 75(1)(d): 8.1100 s 76: 8.1120

Adoption Act 2000 s 119: 5.570 s 143: 5.570, 5.675 s 176: 5.570 ss 178 to 180A: 5.570 s 186: 5.570 s 194: 5.570, 5.675 s 205: 5.570

Civil Procedure Act 2005: 5.420, 5.680 s 71: 5.420

Anti-Discrimination Act 1977: 3.720, 9.220 s 4: 9.190 s 20B: 9.40 s 20C: 9.30, 9.170 s 20C(2): 9.290 s 20D: 9.30 ss 38S to 38T: 9.520 ss 49ZT to 49ZTA: 9.520 ss 49ZXB to 49ZXC: 9.520 s 52: 9.280 s 53: 9.280 s 113: 9.360

Coroners Act 2009 s 47: 5.570 ss 73 to 77: 5.570 s 103: 6.50

Anti-Discrimination (Amendment) Act 1994: 9.220 Anti-Discrimination (Homosexual Vilification) Amendment Act 1993: 9.220 Bail Act 2013: 5.630 Child Protection (Offenders Prohibition Orders) Act 2004 s 14: 5.570 s 16H: 5.570 s 18: 5.570 Children (Criminal Proceedings) Act 1987: 5.570, 5.630 s 4: 5.570 s 10: 5.570 ss 15A to 15G: 5.570 Children and Young Persons (Care and Protection) Act 1998: 5.630 s 92: 5.570 s 104: 5.570 s 104A: 5.570 s 104B: 5.570 s 104C: 5.570 s 105: 5.570

Classification (Publications, Films and Computer Games) Enforcement Act 1995: 9.640 s 6: 9.670 s 17: 9.670 s 18: 9.670

Court Information Act 2010: 5.680, 5.700 s 3(d): 5.700 s 4: 5.700 s 5(1): 5.700 s 5(2): 5.700 s 6(1): 5.700 s 6(2): 5.700 s 8(1): 5.700 s 9(1): 5.700 s 9(2): 5.700 s 10: 5.700 s 10(5): 5.700 s 18(1): 5.700 s 18(2): 5.700 Court Security Act 2005: 5.420 s 6: 5.420 s 7: 5.420 s 9: 5.590 s 9A: 5.640 Court Security Regulation 2011 reg 6: 5.590 reg 6B: 5.640 Court Suppression and Non-publication Orders Act 2010: 5.160, 5.200, 5.220, 5.390, 5.420, 5.430 s 3: 5.420, 5.440 s 4: 5.420, 5.440 s 5: 5.420 s 6: 5.420 s 7: 5.200, 5.220, 5.420 s 7(a): 5.420 lxix

Australian Media Law Court Suppression and Non-publication Orders Act 2010 — cont s 8: 5.420, 5.440 s 8(1)(a): 5.420, 5.430, 5.440 s 8(1)(c): 5.440 s 8(1)(d): 5.440 s 8(1)(e): 5.400, 5.440 s 9(1): 5.440 s 9(2): 5.440 s 9(3): 5.440 s 9(4): 5.440 s 9(5): 5.440 s 10: 5.440 s 11: 5.440 s 12: 5.440 s 13: 5.440 s 13(2): 5.440 s 14: 5.440 s 15(b): 5.420 s 16(1): 5.440 s 16(2) to (4): 5.440 Court Suppression and Non-publication Orders Bill 2010: 5.420 Courts Legislation Amendment (Broadcasting Judgments) Act 2014: 5.630 Crimes Act 1900 s 21J: 8.1170 s 529: 3.1470 s 529(3): 3.1480, 3.1510, 3.1530, 3.1540 s 529(4): 3.1520 s 529(7): 3.1550 s 529(11): 3.1490, 3.1500 s 574: 9.440 s 578A: 5.570 s 578C: 9.530 Pt 4A: 4.400 Crimes (Forensic Procedures) Act 2000: 5.630 Crimes (High Risk Offenders) Act 2006: 5.630 Crimes (Personal and Domestic Violence) Act 2007 s 45: 5.570 s 58: 5.570 Criminal Procedure Act 1986: 5.680 s 56: 5.420 s 56(3): 5.420 s 191: 5.420 s 291: 5.570 s 291A: 5.570 s 291B: 5.570 s 291C: 5.570 s 314: 5.675 Criminal Records Act 1991: 5.675 lxx

Damage by Aircraft Act 1952: 8.720 Defamation Act 1974 s 3: 3.30 s 9: 3.700 s 15: 8.980 s 16(2): 3.710 s 22: 3.1000, 3.1010, 3.1050, 3.1080, 3.1100 s 22(2A): 3.1100 s 49(1): 9.440 Defamation Act 2005: 3.30, 4.40 s 6: 3.30 s 7: 3.70 s 9: 3.520, 3.1410, 3.1460 s 9(2): 3.520 s 9(2)(a): 3.520 s 10: 3.490 s 10(b): 3.550 s 11(2): 3.480 s 11(3): 3.40, 3.1280 s 14(2): 3.580 s 15: 3.580 s 16: 3.580 s 17: 3.580 s 18: 3.580, 3.600, 3.620 s 20: 3.630 s 21(1): 3.300 s 21(3): 3.300 s 22(2): 3.300, 3.320 s 22(3): 3.300, 3.1330 s 22(5)(b): 3.300 s 24: 3.30 s 24(1): 3.640 s 24(2): 3.1090 s 25: 3.650, 3.710 ss 25 to 33: 3.640 s 26: 3.710 s 27: 3.720, 4.40 s 27(2)(a): 3.730, 4.70 s 27(2)(b): 3.740 s 28: 3.790, 3.1210, 4.70 s 28(4): 3.790 s 29: 3.820, 3.830, 3.1210, 4.40 s 29(3): 3.850 s 30: 3.1010, 3.1050, 3.1060, 3.1080, 3.1100, 8.980 s 30(3): 3.1080, 9.300 s 30(4): 3.1090 s 31: 3.1190, 3.1200, 3.1230 s 31(1): 3.1180 s 31(2): 3.1180 s 31(3): 3.1180 s 31(4): 3.1220 s 31(6): 3.1210 s 32: 3.1250 s 33: 3.1280

Table of Statutes Defamation Act 2005 — cont s 34: 3.1330 s 35: 3.1330 s 35(2): 3.1340 s 36: 3.1330 s 37: 3.1350 s 38: 3.1360 s 40: 3.1380 s 42: 3.670 Sch 1: 3.720 Sch 2: 3.790 Sch 3: 3.820 District Court Act 1973 s 177: 5.630 s 178: 5.630 s 179: 5.630 Electronic Transactions Act 2000: 5.420 Evidence Act 1995: 7.650 s 4: 7.680 ss 126A to 126F: 7.650 s 126J: 7.670, 7.700 ss 126J to 126L: 7.660 s 126K(1): 7.670 s 131A: 7.660, 7.680 Evidence Amendment (Confidential Communications) Act 1997: 7.650 Fair Trading Act 1987 s 28: 3.1410, 8.890, 13.20 Freedom of Information Act 1982 s 5: 7.20 Government Information (Public Access) Act 2009: 7.20, 7.30 s 6: 7.30 s 7: 7.30 s 8: 7.30 s 9: 7.30 s 57: 7.30 Sch 1: 7.40 Imperial Act Application Act 1969 s 6: 3.730 Inclosed Lands Protection Act 1901 s 4: 8.780 s 4A: 8.780 Indecent Articles and Classified Publications Act 1975: 9.810 Independent Commission Against Corruption Act 1988 s 31: 5.570 s 31A: 5.570 s 112: 5.570

s 113: 5.570 Industrial Relations Act 1996 s 164: 6.50 s 180: 6.50 Jury Act 1977 s 55D: 6.120 s 68: 5.840 s 68A: 5.830 s 68A(1): 5.830 s 68A(3): 5.830 s 68A(4): 5.830 s 68B: 5.830 s 68B(1): 5.830 s 68B(2): 5.830 s 68C: 6.800 Law Enforcement (Controlled Operations) Act 1997 s 28: 5.570 Law Enforcement and National Security (Assumed Identities) Act 2010 s 34: 5.570 Legal Profession Act 2004: 3.720 Listening Devices Act 1984: 8.200, 8.290 Parliamentary Electorates and Elections Act 1912: 4.580 s 151A(1)(a): 4.620 s 151A(1)(b): 4.620 s 151E: 4.610 s 151EA: 4.610 Parliamentary Evidence Act 1901: 4.250 s 4: 4.250, 4.350 s 7: 4.250 s 8: 4.250 s 9: 4.250 s 11: 4.250, 4.350 s 12: 4.40 s 13: 4.350 s 14: 4.250 Parliamentary Papers (Supplementary Provisions) Act 1975 s 6: 4.70 s 7: 4.70 Parliamentary Privileges Bill 2010: 4.250 cl 7: 4.90 Police Regulation (Allegations of Misconduct) Act 1978: 5.260 Printing and Newspapers Act 1973: 14.1470 s 2: 14.1480 s 3(1)(a): 14.1480 lxxi

Australian Media Law Printing and Newspapers Act 1973 — cont s 3(1)(b): 14.1480 s 3(1)(d): 14.1480 s 3(2): 14.1480 s 3(3)(b): 14.1480 s 3(4): 14.1480 s 4(1): 14.1490 s 4(2): 14.1490 s 4(3)(b): 14.1490 Privacy and Personal Information Protection Act 1998: 8.60 Proposed Civil Liability Act 2002 : 8.1100 Protected Disclosures Act 1994 s 21: 3.770 Public Interest Disclosures Act 1994: 3.720 s 19: 7.500 s 21: 7.500 Royal Commissions Act 1923 s 6: 3.740 s 7(3): 3.740 Supreme Court Act 1970 s 22: 6.40 s 101(5): 6.20 s 101(6): 6.20 s 126: 5.630 s 127: 5.630 s 128: 5.630 Surveillance Devices Act 2007: 8.80, 8.150, 8.370 s 4: 8.370 s 5(2): 8.320 s 7(3): 8.380 ss 7 to 8: 8.370 s 11: 8.390 s 11(2): 8.400 Terrorism (Police Powers) Act 2002: 10.170 s 26P: 5.570 s 27Y: 5.570 s 27ZA: 5.570 Uniform Civil Procedure Rules 2005: 3.700, 7.630 r 5(2): 7.590 r 5.2: 7.620, 7.630 r 21.7: 5.730, 5.770 r 36.12(1): 5.675 r 36.12(2)(b): 5.675 Witness Protection Act 1995 s 16: 5.420 s 26: 5.570 lxxii

Young Offenders Act 1997 s 65: 5.570

NORTHERN TERRITORY Adoption s 59: s 60: s 70: s 71: s 72: s 79:

of Children Act 5.570 5.570, 5.675 5.570 5.570 5.570 5.570

Care and Protection of Children Act 2007 s 99: 5.570 s 301: 5.570 Child Protection (Offender Reporting and Registration) Act s 86: 5.570 s 88: 5.570 Classification of Publications, Films and Computer Games Act: 9.640 s 37: 9.670 s 38: 9.670 s 45: 9.670 s 49: 9.670 s 50B: 9.670 s 53: 9.670 Consumer Affairs and Fair Trading Act s 27: 3.1410, 8.890, 13.20 Coroners Act s 42: 5.570 s 43: 5.570 s 46: 6.50 Court Security Act 1998: 5.450 s 17: 5.450 Criminal Code: 9.440 s 44: 10.60 s 125C: 9.530 s 203: 3.1490, 3.1500, 3.1510, 3.1520 s 204: 3.1470, 3.1480, 3.1530, 3.1540 s 208: 3.1550 s 428: 5.675 Defamation Act: 3.30 s 5: 3.30, 9.440 s 6: 3.70, 9.440 s 8: 3.520, 3.1410 s 9: 3.520 s 9(2): 3.520 s 9(2)(a): 3.520 s 9(b): 3.550 s 10: 3.490

Table of Statutes Defamation Act — cont s 10(2): 3.480 s 10(3): 3.40 s 13(2): 3.580 s 14: 3.580 s 15: 3.580 s 16: 3.580 s 17: 3.580, 3.600, 3.620 s 19: 3.630 s 21: 3.30 s 21(1): 3.640 s 21(2): 3.1090 s 22: 3.650 ss 22 to 30: 3.640 s 23: 3.710 s 24: 3.720, 4.40 s 24(2)(a): 3.730, 4.70 s 24(2)(b): 3.740 s 25: 3.790, 4.70 s 25(4): 3.790 s 26: 3.820, 3.830, 4.40 s 26(3): 3.850 s 27: 3.1050 s 27(4): 3.1090 s 28: 3.1180 s 28(2): 3.1180 s 28(3): 3.1180 s 28(4): 3.1220 s 29: 3.1250 s 30: 3.1280 s 31: 3.1330 s 32: 3.1330 s 32(2): 3.1340 s 33: 3.1330 s 34: 3.1350 s 35: 3.1360 s 37: 3.1380 s 39: 3.670 Domestic and Family Violence Act 2007 s 26: 5.570 s 106: 5.570 s 123: 5.570 s 124: 5.570 Electoral Act: 4.580, 4.620 ss 268 to 270: 4.610 s 270(3): 4.620 s 270(3)(b): 4.620 s 272: 4.610 s 273: 4.610 s 274: 4.610 Evidence Act s 4: 5.570 s 5: 5.450 s 21A: 5.570 s 21F: 5.570

s s s s

57: 5.450, 5.570 57(2): 5.450 58: 5.450 59: 5.450

Information Act: 7.20, 8.60 s 15 to 16: 7.20 s 32: 7.30 s 45: 7.40 s 60: 7.40 Inquiries Act s 5: 3.740 s 15: 3.740 Juries Act s 6A: 3.300 s 49A: 5.830 s 49A(2): 5.830 s 49A(3): 5.830 s 49A(4): 5.830 ss 49A(5)(a) to (c): 5.830 s 49A(5)(d): 5.830 s 49A(5)(e): 5.830 ss 49A(6)(a) to (c): 5.830 s 49A(6)(d): 5.830 s 49A(6)(e): 5.830 s 49A(7)(a): 5.830 s 49A(7)(b): 5.830 s 49A(9): 5.830 s 49A(10): 5.830 s 49B: 5.840 s 49B(1): 5.840 ss 49B(1) to (3): 5.840 s 49B(2): 5.840 Justices Act: 5.450 s 61: 5.450 s 107: 5.450 Legislative Assembly (Powers and Privileges) Act: 4.310 s 4: 3.730, 4.310 s 5: 4.200 s 6: 3.730, 4.90, 4.160 s 6(2): 4.70 s 11: 4.70 s 13: 4.40 s 16(2): 4.310 s 18: 4.350 s 20: 4.490 s 21: 4.350 s 22: 4.480 s 23(1): 4.570 s 23(2): 4.40 s 25: 4.310 s 26: 4.210 lxxiii

Australian Media Law Magistrates Act s 18: 5.450 Printers and Newspapers Act: 14.1470 s 3: 14.1480 s 4(1): 14.1480 s 6: 14.1490 s 9: 14.1480 Sexual Offences (Evidence and Procedure) Act ss 6 to13: 5.570 Supreme Court Act: 5.450 s 12: 6.40 s 73: 5.450 Supreme Court Rules: 5.450 r 28.05: 5.675 r 32.03: 7.590 r 81A.09: 5.675 r 81A.39: 5.675 Surveillance Devices Act: 8.80, 8.110, 8.150, 8.370 s 4: 8.370 ss 11 to 12: 8.370 s 15: 8.390 s 15(2): 8.400 Terrorism (Emergency Powers) Act: 10.170 s 21U: 5.570 s 27W: 5.570 Witness Protection (Northern Territory) Act s 38: 5.570 Youth Justice Act s 49: 5.570 s 50: 5.570

QUEENSLAND Acts Interpretation Act 1954 s 14D: 8.1170 Adoption Act 2009 s 223: 5.570 s 304: 5.570 s 307G: 5.570 s 307O: 5.570, 5.675 s 307P: 5.570, 5.675 s 307Q: 5.570 s 315: 5.570 Anti-Discrimination Act 1991 s 4: 9.190 s 4A: 9.40 s 124A: 9.30, 9.290, 9.450, 9.520 s 131A: 9.30, 9.290, 9.450, 9.520 s 209: 9.360 lxxiv

Child Protection Act 1999 s 99J: 5.570 s 99K: 5.570 s 99ZG: 5.570 s 189: 5.570 s 190: 5.570 s 191: 5.570 s 192: 5.570 s 193: 5.570 s 194: 5.570 s 194A: 5.570 s 194B: 5.570 Child Protection (Offender Prohibition Order) Act 2008 s 20: 5.570 Children’s Court Act 1992 s 20: 5.570 Civil Liability Act 2003 s 9: 11.80 s 11: 11.90 Classification of Computer Games and Images Act 1995: 9.660 Classification of Films Act 1991: 9.660 s 37: 9.670 s 39: 9.670 s 40: 9.670 s 41: 9.670 s 42: 9.670 Classification of Publications Act 1991: 9.660 Commissions of Inquiry Act 1950 s 14B: 3.740 s 20: 3.740 Constitution of Queensland 2001 s 9: 4.260 s 58(2): 6.40 Coroners Act 2003 s 31: 5.570 s 38: 5.570 s 41: 5.570 s 42: 6.50 s 43: 5.570 s 64(1): 6.40 Criminal Code: 4.350, 9.440 s 52: 10.60 s 53: 4.350 s 56: 4.350 s 57: 4.350 s 58: 4.350 s 60: 4.400 s 377(8): 3.1160

Table of Statutes Criminal Code 1899 s 2: 8.1180 s 4: 8.1180 s 8: 6.10 s 44: 10.60 s 227A: 8.1170 s 227A(1): 8.80, 8.1170 s 227A(2): 8.1170 s 227B: 8.1170 s 228: 9.530 s 359E: 8.1170 s 365: 3.1470 s 365(1): 3.1480, 3.1510, 3.1530, 3.1540 s 365(3): 3.1520 s 365(7): 3.1550 s 365(8): 3.1490, 3.1500, 3.1520 Criminal Law (False Evidence Before Parliament) Amendment Act 2012: 4.350 Criminal Law (False Evidence Before Parliament) Amendment Bill 2012: 4.350 Criminal Law (Sexual Offences) Act 1978 Pt 3: 5.570 Criminal Practice Rules 1999 r 56: 5.675 r 56A: 5.675 r 57: 5.675 Defamation Act 1889 s 15: 8.980 s 16(1): 8.270 Defamation Act 2005: 3.30 s 6: 3.30 s 7: 3.70 s 9: 3.520, 3.1410, 3.1460 s 9(2): 3.520 s 9(2)(a): 3.520 s 10: 3.490 s 10(b): 3.550 s 11(2): 3.480 s 11(3): 3.40, 3.1280 s 14(2): 3.580 s 15: 3.580 s 16: 3.580 s 17: 3.580 s 18: 3.580, 3.600, 3.620 s 20: 3.630 s 22(2): 3.300, 3.320 s 22(3): 3.300, 3.1330 s 22(5)(b): 3.300 s 24: 3.30 s 24(1): 3.640 s 24(2): 3.1090 s 25: 3.650, 3.710 ss 25 to 33: 3.640

s s s s s s s s s

26: 3.710 27: 3.720, 4.40 27(2)(a): 3.730, 4.70 27(2)(b): 3.740 28: 3.790, 3.1210, 4.70 28(4): 3.790 29: 3.820, 3.830, 3.1210, 4.40 29(3): 3.850 30: 3.1010, 3.1050, 3.1060, 3.1080, 3.1100, 8.980 s 30(3): 3.1080, 8.1050, 9.300 s 30(4): 3.1090 s 31: 3.1190, 3.1200, 3.1230 s 31(1): 3.1180 s 31(2): 3.1180 s 31(3): 3.1180 s 31(4): 3.1220 s 31(6): 3.1210 s 32: 3.1250 s 33: 3.1280 s 34: 3.1330 s 35: 3.1330 s 35(2): 3.1340 s 36: 3.1330 s 37: 3.1350 s 38: 3.1360 s 40: 3.1380 s 42: 3.670 Sch 1: 3.720 Sch 2: 3.790 Sch 3: 3.820 21(1) 21(1): 3.300 21(3) 21(3): 3.300 District Court of Queensland Act 1967 s 126: 5.460 Domestic and Family Violence Protection Act 2012 ss 158 to 160: 5.570 Electoral Act 1992: 4.580 s 181: 4.610 s 184: 4.610 s 185(1): 4.620 s 185(2): 4.630 s 185(3): 4.620 Electoral (Truth in Advertising) Amendment Bill 2010: 4.620 Evidence Act 1977 s 21AU: 5.570 s 21AZC: 5.570 Fair Trading Act 1989 s 16: 3.1410, 8.890, 13.20 Information Privacy Act 2009: 8.60 lxxv

Australian Media Law Invasion of Privacy Act 1971: 8.80, 8.150 s 4: 8.170 s 42: 8.190 s 43: 8.280 s 43(2): 8.320 s 44(1): 8.330 s 44(2): 8.360 s 44(2)(b): 8.360 s 45(1): 8.260 s 45(2): 8.270 s 48A: 8.780 Jury Act 1995 s 47: 6.120 s 69A: 6.800 s 70: 5.830, 5.840 s 70(2): 5.830, 5.840 s 70(3): 5.830, 5.840 s 70(4): 5.830, 5.840 ss 70(6) to (8): 5.830 ss 70(9) to (10): 5.830 s 70(11): 5.840 Justices Act 1886 s 70: 5.460 s 71: 5.460 s 71B: 5.460 s 102F: 5.460 Justices Act 1986 s 4: 5.460 s 38: 5.460 Parliament of Queensland Act 2001: 4.210, 4.260 s 6: 4.260 s 8: 3.730, 4.350 s 9: 4.160 s 11: 4.200 ss 25 to 35: 4.350 s 37: 4.320, 4.350, 4.390, 4.400, 4.490 s 37(2): 4.200 s 38: 4.210 s 39(1): 4.260 s 39(2): 4.260 s 40(1): 4.200 s 40(2): 4.260 s 40(3): 4.260 ss 41 to 45: 4.260 s 47: 4.200 s 54: 4.70 s 56: 4.70 s 58(3): 4.320 Printing and Newspapers Act 1981: 14.1470 s 5: 14.1480 s 6(1)(a): 14.1480 s 6(1)(b): 14.1480 s 6(1)(d): 14.1480 lxxvi

s s s s s s

6(2): 6(3): 6(4): 7(1): 7(2): 7(3):

14.1480 14.1480 14.1480 14.1490 14.1490 14.1490

Public Interest Disclosure Act 2010 s 20: 7.500 s 20(1): 7.500 s 20(2): 7.500 s 26: 7.500 s 36: 3.770 Right to Information Act 2009: 7.20 s 18(1): 7.30 s 23: 7.20 Sch 3: 7.40 Supreme Court of Queensland Act 1991 s 8: 5.460 Terrorism (Preventative Detention) Act 2005: 10.170 s 76: 5.570 Uniform Civil Procedure Rules 1999 r 229: 7.590 r 980: 5.675 r 981: 5.675 Witness Protection Act 2000 s 27A: 5.570 Youth Justice Act 1992 s 234: 5.570 s 301: 5.570

SOUTH AUSTRALIA Adoption Act 1988 s 24: 5.570 s 24(2): 5.675 s 31: 5.570 s 32: 5.570 Children’s Protection Act 1993 s 59: 5.570 s 59A: 5.570 Civil Liability Act 1936 ss 31 to 32: 11.80 s 33: 11.70, 11.170 s 34: 11.90 s 54(2): 11.70 s 73: 9.30 s 73(1): 9.40, 9.290 s 73(3): 9.360 s 73(4): 9.360

Table of Statutes Classification (Publications, Films and Computer Games) Act 1995: 9.640 s 30: 9.670 s 38: 9.670 s 44: 9.670 s 45: 9.670 Constitution Act 1934 s 9: 4.270 s 38: 3.730, 4.270 Coroners Act 2003 s 19: 5.570 s 36: 6.50 Criminal Law Consolidation Act 1935 s 246: 5.830, 5.840 s 246(2): 5.830, 5.840 s 246(3): 5.830, 5.840 s 246(4): 5.830, 5.840 ss 246(5)(a) to (c): 5.830 s 246(5)(d): 5.830 s 246(5)(e): 5.830 ss 246(6)(a) to (c): 5.830 s 246(6)(d): 5.830 s 246(7)(a): 5.830 s 246(7)(b): 5.830 s 246(8)(a): 5.840 s 246(10): 5.830 s 246(8)(b): 5.840 s 246(11): 5.830 s 247: 5.830 s 257: 3.1470, 3.1550 s 257(1): 3.1480, 3.1500, 3.1510, 3.1530, 3.1540 s 257(2): 3.1520 s 257(4): 3.1550 Defamation Act 2005: 3.30, 4.630 s 6: 3.30 s 7: 3.70 s 9: 3.520, 3.1410, 3.1460 s 9(2): 3.520 s 10: 3.490 s 10(b): 3.550 s 11(2): 3.480 s 11(3): 3.40, 3.1280 s 14(2): 3.580 s 15: 3.580 s 16: 3.580 s 17: 3.580 s 18: 3.580, 3.600, 3.620 s 20: 3.630 s 22: 3.30 s 22(1): 3.640 s 22(2): 3.1090 s 23: 3.650 ss 23 to 31: 3.640

s s s s s s s s s s s s s s s s s s s s s s s s

24: 3.710 25: 3.650, 3.720, 4.40 25(2)(a): 3.730, 4.70 25(2)(b): 3.740 26: 3.790, 4.70 26(4): 3.790 27: 3.820, 3.830, 4.40 27(3): 3.850 28: 3.1050 28(4): 3.1090 29: 3.1180 29(2): 3.1180 29(3): 3.1180 29(4): 3.1220 30: 3.1250 31: 3.1280 32: 3.1330 33: 3.1330 33(2): 3.1340 34: 3.1330 35: 3.1350 36: 3.1360 38: 3.1380 40: 3.670

District Court Act 1991 s 54(1): 5.675 s 54(2): 5.675 s 54(3): 5.675 District Court (Civil) Rules 2006 r 9: 5.470 Electoral Act 1985: 4.580 s 107: 4.630 s 112: 4.610 s 112(1)(a): 4.610 s 112(1)(b): 4.610 s 112(1)(ab): 4.610 s 112(1)(ac): 4.610 s 113: 4.620 s 113(4): 4.620 s 113(5): 4.620 s 114: 4.610 s 116: 4.610 Electoral (Miscellaneous) Amendment Act 2013: 4.610 Evidence Act 1929 s 5: 5.570 s 68: 5.470 s 69(1): 5.470 s 69(1a): 5.470 s 69(1A): 5.570 s 69(2): 5.470 s 69(3): 5.470 s 69A(1): 5.470 lxxvii

Australian Media Law Evidence Act 1929 — cont s 69A(2): 5.470 s 69A(2)(a): 5.470 s 69A(2)(b): 5.470 s 69A(3): 5.470 s 69A(5): 5.470 s 69A(6): 5.470 s 69A(8): 5.470 ss 69A(8) to (11): 5.470 s 69A(10): 5.380 s 69A(12): 5.380, 5.470 s 69AB: 5.470 s 69AC: 5.470 s 71: 5.470 s 71A: 5.570 s 71B(1): 5.470 s 71B(3): 5.470 s 71C: 5.470 Pt 8: 5.470, 5.570 Evidence (Journalists) Amendment Bill 2014: 7.520 Evidence (Miscellaneous) Amendment Act 1999: 5.470

s 28: 4.270 s 31: 4.150 Racial Vilification Act 1996 s 3: 9.40, 9.190 s 4: 9.30 Royal Commissions Act 1917 s 16: 3.740 Summary Offences Act 1953 s 17: 8.780 s 17A: 8.780 ss 26A to 26E: 8.1170 s 35: 5.570 Supreme Court Act 1935 s 6: 6.40 s 131(1): 5.675 s 131(2): 5.675 s 131(3): 5.675 Supreme Court (Civil) Rules 2006 r 9: 5.470 r 32: 7.590

Evidence (Protections for Journalists) Amendment Bill 2014: 7.520

Terrorism (Preventative Detention) Act 2005: 10.170 s 47: 5.570

Fair Trading Act 1987 s 14: 3.1410, 8.890, 13.20

Tobacco Products Regulation Act 1997 s 40: 13.460

Freedom of Information Act 1991: 7.20 s 12: 7.20 s 19: 7.30 Sch 1, Pt 1: 7.40

Whistleblowers Protection Act 1993 s 5: 3.770, 7.500 s 5(3): 7.500

Intervention Orders (Prevention of Abuse) Act 2009 s 33: 5.570 Juries Act 1927 s 5: 3.300 Listening and Surveillance Devices Act 1972: 8.80, 8.150, 8.370 s 3: 8.170 s 4: 8.210, 8.280, 8.320 s 5: 8.260, 8.330 s 5(2): 8.360 s 6: 8.320 s 7(1): 8.250 s 7(3): 8.270 Magistrates s 51(1): s 51(2): s 51(3):

Court Act 1991 5.675 5.675 5.675

Parliamentary Committees Act 1991 lxxviii

Witness Protection Act 1996 s 25: 5.570 Wrongs Act 1936 s 37(1): 9.190 Young Offenders Act 1993 s 13: 5.570 s 63C: 5.570 Youth Court Act 1993 s 24: 5.570

TASMANIA Administration and Probate Act 1935 s 27: 3.490, 3.550 Admission to Courts Act 1916 s 2: 5.480 Admission to Courts (Lower Courts) Regulations 2006 reg 5: 5.480

Table of Statutes Adoption Act 1988 s 71: 5.570, 5.675 s 93: 5.570 s 99: 5.570 s 100: 5.570, 5.675 s 101: 5.570, 5.675 s 108: 5.570 s 109: 5.570 Anti-Discrimination Act 1998 s 19(a): 9.30 s 19(b): 9.520 s 19(c): 9.520 s 19(d): 9.450 s 55: 9.290 s 90: 9.360 Australian Consumer Law (Tasmania) Act 2010 s 6: 3.1410, 8.890, 13.20 Children, Young Persons and Their Families Act 1997 s 40: 5.570 s 103: 5.570 Civil Liability Act 2002 s 11: 11.80 s 13: 11.90 s 33: 11.70 s 34: 11.70, 11.170 Classification (Publications, Films and Computer Games) Enforcement Act 1995: 9.660 s 3: 9.690, 10.240 s 22: 9.670 s 36: 9.670 Commissions of Inquiry Act 1995 s 8: 3.740 Coroners Act 1995 s 56: 5.570 s 57: 5.570 s 66: 6.50 Criminal Code 1924: 10.60 s 66(1): 10.60 s 67(1)(b): 10.60 s 68: 10.60 s 72: 4.400 s 119: 9.440 ss 137 to 138: 9.530 s 196: 3.1470 s 196(1): 3.1480, 3.1500, 3.1510, 3.1530 s 196(3): 3.1520 s 196(6): 3.1550 s 196(7): 3.1490 s 389: 3.1540 Damage by Aircraft Act 1963: 8.720

Defamation Act 1957 s 15: 8.980 s 16(1): 8.270 s 18: 3.710 Defamation Act 2005: 3.30 s 6: 3.30 s 7: 3.70 s 9: 3.520, 3.1410, 3.1460 s 9(2): 3.520 s 10: 3.490 s 11(2): 3.480 s 11(3): 3.40, 3.1280 s 14(2): 3.580 s 15: 3.580 s 16: 3.580 s 17: 3.580 s 18: 3.580, 3.600, 3.620 s 20: 3.630 s 21(1): 3.300 s 21(3): 3.300 s 22(2): 3.300, 3.320 s 22(3): 3.300, 3.1330 s 22(5)(b): 3.300 s 24: 3.30 s 24(1): 3.640 s 24(2): 3.1090 s 25: 3.650, 3.710 ss 25 to 33: 3.640 s 26: 3.710 s 27: 3.720, 4.40 s 27(2)(a): 3.730, 4.70 s 27(2)(b): 3.740 s 28: 3.790, 3.1210, 4.70 s 28(4): 3.790 s 29: 3.820, 3.830, 3.1210, 4.40 s 29(3): 3.850 s 30: 3.1010, 3.1050, 3.1060, 3.1080, 3.1100, 8.980 s 30(3): 3.1080, 8.1050, 9.300 s 30(4): 3.1090 s 31: 3.1190, 3.1200, 3.1230 s 31(1): 3.1180 s 31(2): 3.1180 s 31(3): 3.1180 s 31(4): 3.1220 s 31(6): 3.1210 s 32: 3.1250 s 33: 3.1280 s 34: 3.1330 s 35: 3.1330 s 35(2): 3.1340 s 36: 3.1330 s 37: 3.1350 s 38: 3.1360 s 40: 3.1380 s 42: 3.670 lxxix

Australian Media Law Defamation Act 2005 — cont Sch 1: 3.720 Sch 2: 3.790 Sch 3: 3.820 Electoral Act 2004: 4.580 ss 190 to 194: 4.610 s 195: 4.610 s 197: 4.620 Evidence Act 2001 ss 126A to 126F: 7.650 s 194J: 5.480 s 194J(2): 5.480 s 194K: 5.570 s 194L: 5.570 Evidence Amendment Act 2010: 7.650 Family Violence Act 2004 s 31: 5.570 s 32: 5.570 Juries Act 2003 s 57: 5.840 s 58: 5.830 s 58(1)(a): 5.830 s 58(1)(b): 5.830 s 58(2): 5.830 s 58(3): 5.830 ss 58(6)(a) to (c): 5.830 s 58(6)(d): 5.830 s 58(6)(e): 5.830 s 58(8): 5.830 Justices Act 1959 s 37: 5.480 s 37(2): 5.480 s 37A: 5.480, 6.760 s 106K: 5.480 Listening Devices Act 1991: 8.80, 8.150 s 3(1): 8.170 s 5: 8.280 s 5(1): 8.210, 8.280 s 5(2): 8.320 s 5(3)(b): 8.250 s 9(1): 8.260, 8.330 s 9(2)(a): 8.360 s 9(2)(b): 8.360 s 9(2)(c): 8.360 s 10(2): 8.270 Magistrates Court (Children’s Division) Act 1998 s 11: 5.570 s 12: 5.570 Parliamentary Privilege Act 1858: 4.280 s 1: 4.280, 4.350 s 2: 4.280, 4.350 lxxx

s s s s s s s s s s s

2A: 4.280, 4.350 3: 4.280, 4.390 3(a): 4.350 3(b): 4.350 3(c): 4.390 3(f): 4.400 3(g): 4.350 7: 4.210 10: 4.210 11: 4.200, 4.280 12: 4.280

Parliamentary Privilege Act 1957 s 2: 4.280 s 3: 4.280 Personal Information Protection Act 2004: 8.60 Public Interest Disclosures Act 2002 s 7: 7.500 s 16: 3.770, 7.500 s 17: 7.500 Right to Information Act 2009: 7.20 s 7: 7.20 s 15: 7.30 s 26: 7.40 Supreme Court Rules 2000 r 33(4): 5.675 r 403C: 7.590 Terrorism (Preventative Detention) Act 2005 s 50: 5.570 Therapeutic Goods Act 2001: 13.490 Witness (Identity Protection) Act 2006 s 11: 5.570 Youth Justice Act 1997 s 22: 5.570 s 30: 5.570 s 31: 5.570 s 45: 5.570 s 108: 5.570

VICTORIA Adoption Act 1984 s 76: 5.570, 5.675 s 83: 5.570, 5.675 s 107: 5.570 s 120: 5.570 s 121: 5.570 Charter of Human Rights and Responsibilities Act 2006: 2.90, 5.20 s 15: 6.940 s 24(1): 4.180

Table of Statutes Children and Young Persons Act 1989: 5.570 s 26: 5.570 Children, Youth and Families Act 2005: 5.570 s 131: 5.570 s 330: 5.570 s 523: 5.490, 5.570 s 528(1): 5.490 s 534: 5.570 Civil Procedure Act 2010 s 27: 5.730 Civil and Administrative Tribunal Act 1998 s 121: 9.360 Classification (Publications, Films and Computer Games) (Enforcement) Act 1995: 9.640 s 8: 9.670 s 15: 9.670 s 22: 9.670 s 23: 9.670 s 23A: 9.670 Commercial Arbitration Act 1984: 5.770 Constitution Act 1975 s 19(1): 3.730, 4.270 s 19(2): 4.270 s 19A(7): 4.40 s 19A(9): 4.200 s 73: 4.70 s 74(1): 4.70 s 74(3): 4.70 s 74AA: 4.40 s 76: 6.40 Coroners Act 2008 s 73(2): 5.530 s 103: 6.50 s 104: 6.50 Pt 2: 5.550 Corrections Act 1986: 7.290 County Court Act 1958: 5.550 s 80: 5.570 s 80AA: 5.570 County Court Civil Procedure Rules 2008 O 28.05: 5.675 Criminal Procedure Act 2009 s 133: 5.570 Pt 4.4: 5.660 Defamation Act 2005: 3.30 s 6: 3.30 s 7: 3.70 s 9: 3.520, 3.1410, 3.1460 s 9(2): 3.520

s 10: 3.490 s 10(b): 3.550 s 11(2): 3.480 s 11(3): 3.40, 3.1280 s 14(2): 3.580 s 15: 3.580 s 16: 3.580 s 17: 3.580 s 18: 3.580, 3.600, 3.620 s 20: 3.630 s 21(1): 3.300 s 21(3): 3.300 s 22(2): 3.300, 3.320 s 22(3): 3.300, 3.1330 s 22(5)(b): 3.300 s 24: 3.30 s 24(1): 3.640 s 24(2): 3.1090 s 25: 3.650, 3.710 ss 25 to 33: 3.640 s 26: 3.710 s 27: 3.720, 4.40 s 27(2)(a): 3.730, 4.70 s 27(2)(b): 3.740 s 28: 3.790, 3.1210, 4.70 s 28(4): 3.790 s 29: 3.820, 3.830, 3.1210, 4.40 s 29(3): 3.850 s 30: 3.1010, 3.1050, 3.1060, 3.1080, 3.1100, 8.980 s 30(3): 3.1080, 8.1050, 9.300 s 30(4): 3.1090 s 31: 3.1190, 3.1200, 3.1230 s 31(1): 3.1180 s 31(2): 3.1180 s 31(3): 3.1180 s 31(4): 3.1220 s 31(6): 3.1210 s 32: 3.1250 s 33: 3.1280 s 34: 3.1330 s 35: 3.1330 s 35(2): 3.1340 s 36: 3.1330 s 37: 3.1350 s 38: 3.1360 s 40: 3.1380 s 42: 3.670 Sch 1: 3.720 Sch 2: 3.790 Sch 3: 3.820 Electoral Act 2002: 4.580, 4.620 s 83: 4.610 s 84: 4.620 s 84(2): 4.620 s 85: 4.610 lxxxi

Australian Media Law Electoral Act 2002 — cont s 86: 4.610 Evidence Act 1958 s 21A: 3.740

Mental Health Act 1986: 7.290 Ombudsman Act 1973: 7.690

Juries Act 2000 s 77: 5.500, 5.840 s 78: 5.500, 5.830 s 78(1): 5.830 s 78(2): 5.830 ss 78(3) to (4): 5.830 s 78(7): 5.830 s 78(9): 5.830 s 78(11): 5.830 s 78(12): 5.830 s 78A: 6.800

Open Courts Act 2013: 5.200, 5.390, 5.490 s 3: 5.520, 5.530 s 4: 5.510, 5.540, 5.550 s 5: 5.500 s 5(1): 5.500 s 6: 5.500 s 7: 5.500 s 8: 5.500 s 10: 5.520 s 11: 5.520 s 12(1): 5.520 s 12(2): 5.520 s 12(3): 5.520 s 12(4): 5.520 s 13(1): 5.520 s 13(2): 5.520 s 14: 5.520 s 15: 5.520 s 16: 5.520, 5.530 s 17: 5.490, 5.530 s 18: 5.530 s 18(1)(c): 5.530 s 18(2): 5.570 s 19(1): 5.530 s 19(2): 5.530 s 19(3): 5.530 s 19(4): 5.530 s 20: 5.530 s 21: 5.530 s 22: 5.530 s 23: 5.530 s 24: 5.540 s 25: 5.510, 5.540 s 25(2): 5.540 s 26: 5.490, 5.510, 5.540 s 26(5): 5.540 s 27: 5.540 s 28: 5.500, 5.550 s 29: 5.500, 5.550 s 30: 5.490, 5.550 s 30(3): 5.570 s 31: 5.550 Pt 2: 5.500 Pt 3: 5.510 Pt 4: 5.510 Pt 5: 5.550

Magistrates’ Court Act 1989 s 125: 5.550, 5.670 s 126: 5.380, 5.570

Open Courts Bill 2013: 5.520 cl 11: 5.520 cl 12: 5.520

Major Crime (Investigative Powers) Act 2004: 7.690

Parliamentary Committees Act 2003 s 28: 4.350

Evidence Act 2008 s 4: 7.680 s 126J: 7.660 s 126J(1): 7.670, 7.700 s 126K: 7.660 s 126K(1): 7.670 s 126K(2): 7.670 s 131A: 7.660, 7.680 Evidence Amendment (Journalist Privilege) Bill s 3: 7.700 Fair Trading Act 1999 s 9: 3.1410, 8.890, 13.20 Family Violence Protection Act 2008 s 68: 5.570 ss 166 to 169: 5.570 Freedom of Information Act 1982: 7.20 s 13: 7.20 s 21: 7.30 s 28: 7.40 Independent Broad-based Anti-corruption Commission Act 2011: 7.690 Inquiries Act 2014 s 24: 5.570, 6.80 s 26: 5.570 s 71: 5.570 s 73: 5.570 Judicial Proceedings Reports Act 1958: 5.380, 5.500 s 4: 5.570

lxxxii

Table of Statutes Police Integrity Act 2008: 7.690 Privacy Data and Protection Act 2014: 8.60

Victorian Civil and Administrative Tribunal Act 1998 : 5.530

Protected Disclosure Act 2012 s 13: 7.500 s 39: 7.500 s 40: 7.500 s 41: 3.770

Victorian Inspectorate Act 2011: 7.690

Racial and Religious Tolerance Act 2001: 2.60 s 7: 9.30, 9.40 s 8: 9.450 s 11: 9.290, 9.490 ss 15 to 16: 9.280 s 17: 9.280 s 19: 9.280 s 24: 9.30 s 25: 9.450

Wrongs Act 1958: 8.720, 14.1470 s 4: 3.1520 s 10: 3.1470, 3.1500, 3.1540 s 10(1): 3.1480 s 11(2): 3.1530 s 13B(1): 14.1480 s 13C(1): 14.1480 s 13C(2): 14.1480 s 13C(4): 14.1480 s 48: 11.80 s 51: 11.90 s 72: 11.70, 11.170

Serious Sex Offenders Monitoring Act 2005 s 42: 5.40 Summary Offences Act 1966 s 9(1): 8.780 s 17: 9.530 ss 40 to 41G: 8.1170 Supreme Court Act 1986: 5.550 s 17: 5.330 s 17A(3): 5.330 s 18: 5.540, 5.570 s 19: 5.540, 5.570

Whistleblowers Protection Act 2001: 7.690 Witness Protection Act 1991: 5.500 s 13: 5.570

WESTERN AUSTRALIA Adoption Act 1994 s 84: 5.570, 5.675 s 123: 5.570 s 124: 5.570 s 133: 5.570

Supreme Court (General Civil Procedure) Rules 2005 O 75: 6.100

Censorship Act 1996: 9.660 s 68: 9.670 s 69: 9.670 s 80: 9.670 s 81: 9.670

Supreme Court of Victoria (Criminal Procedure) Rules 2008 O 1.11(4): 5.675

Children and Community Services Act 2004 s 237: 5.570 s 240: 5.570

Supreme Court of Victoria (General Civil Procedure) Rules 2005 r 32.03: 7.590 O 28.05: 5.675

Children’s Court of Western Australia Act 1988 s 31: 5.570 s 35: 5.570 s 36: 5.570 s 36A: 5.570 s 51A: 5.570

Surveillance Devices Act 1999: 8.80, 8.150, 8.370 s 3: 8.370 ss 6 to 7: 8.370 s 11(1): 8.390 s 11(2): 8.400 Terrorism (Community Protection) Act 2003: 10.170 s 12: 5.570 Tobacco Act 1987 s 6: 13.460

Civil Liability Act 2002 s 5B: 11.80 s 5C: 11.90 s 5Q: 11.70 s 5S: 11.70, 11.170 Constitution Act 1889: 4.290 s 36: 4.290 Constitution (Parliamentary Privileges) Amendment Act 2004: 4.290 lxxxiii

Australian Media Law Constitution (Parliamentary Privileges) Amendment Bill 2004 cl 7: 4.290 Coroners Act 1996 s 5(4): 6.40 s 45: 5.570 s 46A: 6.50 s 49: 5.570 s 51: 6.50 s 54: 6.50 Courts and Tribunals (Electronic Processes Facilitation) Act 2013: 5.710 Criminal Code: 9.30 s 56: 4.350 ss 56 to 61: 4.200 s 57: 4.40, 4.350 s 58: 4.490 s 59: 4.350 s 204: 9.530 Criminal Code 1913 s 44: 10.60 s 52: 10.60 s 76: 9.190 ss 77 to 80: 9.30 s 345: 3.1470 s 345(1): 3.1480, 3.1500, 3.1510, 3.1540 s 345(3): 3.1520 s 345(6): 3.1550 s 345(7): 3.1490 Criminal Procedure Act 2004 s 171: 5.560 Criminal Procedure Rules 2005 r 51: 5.675 Damage by Aircraft Act 1964: 8.720 Defamation Act 2005: 3.30 s 6: 3.30 s 7: 3.70 s 9: 3.520, 3.1410, 3.1460 s 9(2): 3.520 s 10: 3.490 s 10(b): 3.550 s 11(2): 3.480 s 11(3): 3.40, 3.1280 s 14(2): 3.580 s 15: 3.580 s 16: 3.580 s 17: 3.580 s 18: 3.580, 3.600, 3.620 s 20: 3.630 s 21(1): 3.300 s 21(3): 3.300 s 22(2): 3.300, 3.320 lxxxiv

s 22(3): 3.300, 3.1330 s 22(5)(b): 3.300 s 24: 3.30 s 24(1): 3.640 s 24(2): 3.1090 s 25: 3.650, 3.710 ss 25 to 33: 3.640 s 26: 3.710 s 27: 3.720, 4.40 s 27(2)(a): 3.730, 4.70 s 27(2)(b): 3.740 s 28: 3.790, 3.1210, 4.70 s 28(4): 3.790 s 29: 3.820, 3.830, 3.1210, 4.40 s 29(3): 3.850 s 30: 3.1010, 3.1050, 3.1060, 3.1080, 3.1100, 8.980 s 30(3): 3.1080, 8.1050, 9.300 s 30(4): 3.1090 s 31: 3.1190, 3.1200, 3.1230 s 31(1): 3.1180 s 31(2): 3.1180 s 31(3): 3.1180 s 31(4): 3.1220 s 31(6): 3.1210 s 32: 3.1250 s 33: 3.1280 s 34: 3.1330 s 35: 3.1330 s 35(2): 3.1340 s 36: 3.1330 s 37: 3.1350 s 38: 3.1360 s 40: 3.1380 s 42: 3.670 Sch 1: 3.720 Sch 2: 3.790 Sch 3: 3.820 Electoral Act 1907: 4.580 s 187(1): 4.610 s 187(2): 4.610 s 187B: 4.610 s 191A(1): 4.620 s 191A(2): 4.620 Evidence Act 1906: 7.680 s 4: 7.680 s 20A: 7.650 ss 20A to 20F: 7.650 s 20G: 7.670, 7.700 ss 20G to 20M.: 7.660 s 20I: 7.670 s 20J(2): 7.670 s 20J(3): 7.670 s 20K(1): 7.670 s 20K(2): 7.670

Table of Statutes Evidence Act 1906 — cont s 20K(3): 7.670 s 20L: 7.670 s 36A: 5.570 s 36C: 5.570 Evidence and Public Interest Disclosure Amendment Legislation Bill 2011 s 9: 7.650 Evidence and Public Interest Disclosure Legislation Amendment Act 2012: 7.650

s s s s s s s s s s s

5: 4.290 7: 4.290, 4.360 8: 4.290 8(a): 4.350 8(b): 4.350 8(c): 4.390 8(f): 4.400 8(g): 4.350 11: 4.210 14: 4.390 15: 4.200

Fair Trading Act 1987 s 19: 8.890

Police Act 1892: 9.800 s 66(13): 8.780, 8.790

Fair Trading Act 2010 s 19: 3.1410, 13.20

Public Interest Disclosure Act 2003 s 5: 7.500 s 13: 3.770, 7.500

Freedom of Information Act 1992: 7.20 s 10(1): 7.20 s 13: 7.30 ss 36 to 38: 7.40 Sch 1: 7.40 Information Privacy Bill 2007: 8.60 Juries Act 1957 s 56A: 5.830 ss 56A to 56E: 5.830, 5.840 s 56B(1): 5.830, 5.840 ss 56B(2)(a) to (e): 5.830 s 56B(2)(f): 5.830 s 56B(2)(g): 5.830 s 56B(2)(h): 5.830 s 56C: 5.830, 5.840 ss 56C(2)(a) to (e): 5.830 s 56C(2)(f): 5.830 s 56C(2)(g): 5.830 s 56D: 5.830, 5.840 s 56D(2)(a): 5.830 s 56D(2)(b): 5.830 s 56E(a): 5.840 s 56E(b): 5.840 s 57: 5.840 Magistrates Court (Civil Proceedings) Act 2004: 5.560 s 45(1): 5.560 s 45(3): 5.560 Parliamentary Papers Act 1891: 4.290 s 1: 4.70 s 2: 4.70 s 3: 4.70 Parliamentary Privileges Act 1891: 4.290 s 1: 3.730, 4.290 s 4: 4.290 ss 4 to 7: 4.350

Restraining Orders Act 1997 s 70: 5.570 Royal Commissions Act 1968 s 20: 3.740 s 31: 3.740 Rules of the Supreme Court of Western Australia 1971 O 26A, r 3: 7.590 O67, r O67, 11: 5.675 Supreme Court Act 1935 s 6(2): 6.40 Surveillance Devices Act 1998: 8.80, 8.150, 8.370, 8.420 s 3: 8.370 s 5(2)(d): 8.380 s 5(3): 8.380 ss 5 to 6: 8.370 s 6(2)(d): 8.380 s 6(3): 8.380 s 9(1): 8.390 s 9(2): 8.400 s 24: 8.410 s 25: 8.370 s 26: 8.410 s 27: 8.410 s 28: 8.410 s 29: 8.410 s 30: 8.410 s 31: 8.410 Terrorism (Preventative Detention) Act 2006: 10.170 s 53: 5.570 Tobacco Products Control Act 1990 s 5: 13.460 lxxxv

Australian Media Law Witness Protection (Western Australia) Act 1996 s 23: 5.570 s 32: 5.570

UNITED KINGDOM

Young Offenders Act 1994 s 40: 5.570

Bill of Rights 1689 Art 9: 3.730, 4.30, 4.50, 4.70, 4.80, 4.90, 4.100, 4.120, 4.140, 4.150, 4.170, 4.180, 4.500

CANADA Canadian Charter of Rights and Freedoms s 2(b): 6.940 Art 11: 4.180 Tobacco Products Control Act 1988: 13.480

FIJI ISLANDS Constitution of Fiji 1990 s 13: 6.940

MAURITIUS Constitution of Mauritius s 12: 6.940

NEW ZEALAND Bill of Rights: 8.600 Bill of Rights Act 1990: 6.940 s 14: 8.600 s 25: 4.180 Copyright Act 1994 ss 122A to 122U: 12.350 s 122B: 12.350 Evidence Act 2006: 7.660 s 68: 7.660 s 69: 7.660 Legislature Act 1908 s 242(1): 4.270 Parliamentary Privilege Act 2014: 4.120 s 3(2)(d): 4.120 s 10: 4.150, 4.160 s 11: 4.90 s 22: 4.270 Privacy Act 1993 s 2(1): 8.40

SOUTH AFRICA Constitution of the Republic of South Africa Act 1996 s 16(1): 6.940 s 36(1): 6.940 lxxxvi

Anti-Racial Discrimination Act: 9.200

Chancery Amendment Act 1858 (Lord Cairns’ Act): 7.430, 8.950, 8.960 Communications Act 2003 s 319(2)(g): 4.600 s 321(2): 4.600 s 321(3): 4.600 Constitutional Reform Act 2005 s 47: 5.630 Contempt of Court Act 1981: 6.10, 6.510 s 2(2): 6.220 s 8: 5.830 s 9: 5.590 s 10: 7.660 Crime and Courts Act 2013 s 32: 5.630 s 33: 6.810 Criminal Justice Act 1925 s 41: 5.630 Criminal Justice and Courts Bill 2014: 5.830 Data Protection Act 1998 s 32(1): 8.40 Defamation Act 1996: 4.140, 4.290 s 13: 3.730, 4.140 Defamation Act 2013: 3.30 s 2: 3.670 s 3: 3.1180 s 4: 3.1040 s 5: 3.560 s 8: 6.160 Deregulation Act 2015: 4.140 Digital Economy Act 2010: 12.350 Human Rights Act 1988: 8.530 s 6(1): 8.520 Human Rights Act 1998: 3.1040, 7.60, 7.660 Libel Act 1843: 3.1530 s 6: 3.1470 s 7: 3.1470 Official Secrets Act 1911: 7.90 Parliamentary Papers Act 1840: 4.60, 4.70

Table of Statutes Parliamentary Papers Act 1840 — cont s 3: 4.60

Berne Convention for the Protection of Literary and Artistic Works 1886: 12.50

UNITED STATES

European Convention for the Protection of Human Rights and Fundamental Freedoms: 4.180, 8.530, 8.960 Art 8: 8.10, 8.530, 8.960 Art 10: 1.10, 8.530, 8.960 Art 6: 4.180 Art 10: 7.660

Communications Decency Act 1996 s 230: 3.560 Constitution: 2.80, 2.90 First Amendment: 2.80, 2.90, 9.630, 10.40, 11.40, 11.80, 11.110, 11.280, 11.290, 11.310 Copyright Term Extension Act 1998: 12.150 Espionage Act 1918: 10.40 Restatement (Second) of Torts: 8.1000, 8.1030 s 30(3): 8.1050 s 652B: 8.470 s 652C: 8.500 s 652D: 8.480 s 652E: 8.490 Second Restatement: 8.600 Sedition Act 1798: 10.40 Subversive Activities Control Act 1950: 10.40 Telecommunications Act 1996: 15.160

TREATIES AND CONVENTIONS Australia-United States Free Trade Agreement Art 10.6.1(c): 14.1130

International Covenant on Civil and Political Rights 1966: 8.20, 9.30 Art 14: 4.240, 5.40 Art 14(1): 5.40 Art 14.3(e): 4.90 Art 17: 8.10 Art 19: 6.520 Art 19(2): 1.10 Art 19(3): 1.10 Art 20: 9.20 Protocol on Trade in Services to the Australia New Zealand Closer Economic Relations Trade Agreement Art 4: 14.1100 Art 5(1): 14.1100 Universal Declaration of Human Rights 1948 Art 12: 8.10 Art 19: 1.10

lxxxvii

Introduction

1

[1.10] The raison d’etre of an examination of the area conveniently referred to as “Media Law” may be found in two statements made by Mahoney JA in the New South Wales Court of Appeal. The first recognises that freedom of speech – and freedom of the press (or today, more accurately, the media) – is a central tenet of a free democracy. His Honour explained the importance of free speech in a democracy in the following terms: It is not necessary to stress the ends which are achieved by the capacity to speak freely: Ideas might be developed freely, culture may be refined, and the arrogance or abuse of power may be controlled. These ends are important ends in a free society. 1

A free press performs a communication role in a myriad of ways, whether as a source of “debate and comment, information and speculation, news and opinion, education and entertainment”. 2 As such, it is an important facilitator of free speech. With this role comes power. As Justice Leveson observed in the Final Report of his inquiry into the British press, prompted by the phone hacking practices of the News of the World newspaper: It is because of the position of the press as an institution of power that it is able to stand up to and speak truth to power. The professional skills and resources at its disposal enable the press as an institution to carry out ground-breaking investigations in the public interest. It is these considerations and functions which have resulted in the press as an institution being afforded certain privileges going beyond those protected by freedom of speech. 3

Mahoney JA’s second statement reflected upon the exercise of free speech by the media: The media exercises power, because and to the extent that, by what it publishes, it can cause or influence public power to be exercised in a particular way. And … it needs no authority to say what it wishes to say or to influence the exercise of public power by those who exercise it. The media may, by the exercise of this power, influence what is done by others for a purpose which is good or bad. It may do so to achieve a public good or its private interest. It is, in this sense, the last significant area of arbitrary public power. 4

Sir John Donaldson MR expressed a similar sentiment in the English Court of Appeal: The media, to use a term which comprises not only the newspapers but also television and radio, are an essential foundation of any democracy. In exposing crime, anti-social behaviour and hypocrisy and in campaigning for reform and propogating the views of minorities, they perform an invaluable function. However, they are peculiarly vulnerable to the error of confusing the public interest with their own interest. Usually these interests march hand in hand, but not always. 5

1 2

Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 720. Hon Brian Leveson, An Inquiry into the Culture, Practices and Ethics of the Press (2012) at 79.

3

Hon Brian Leveson, An Inquiry into the Culture, Practices and Ethics of the Press (2012) at 68. In Australia the “certain privileges” include shield laws in many jurisdictions that mean that journalists cannot be compelled to reveal their sources (see [7.650]-[7.700]), exemption from laws governing collection of personal information (see [8.40]), a media safe harbour defence to the prohibition of engaging in misleading or deceptive conduct (see [3.1420] and [13.410]) and various defences in defamation, including qualified privilege (see [3.870]-[3.1010]). Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 725. Francome v Mirror Group Newspapers Ltd [1984] 1 WLR 892 at 989.

4 5

[1.10] 1

Australian Media Law

Freedom of expression has been recognised at an International level. For example, Art 19(2) of the International Covenant on Civil and Political Rights (ICCPR), ratified by Australia in 1980, states as follows: Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 6

However, freedom of expression and, by extension, freedom of the media, is a special case of the general proposition of the common law that “everybody is free to do anything, subject only to the provisions of the law”. 7 The ICCPR recognised that freedom of expression is not absolute in Art 19(3): The exercise of the rights provided for in paragraph (2) of this Article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a)

For respect of the rights or reputations of others;

(b)

For the protection of national security or of public order (ordre public), or of public health or morals.

There is recognition at an international level that free speech is not absolute. At least two reasons for this may be advanced: in some circumstances it may conflict with other interests; and as an instance of arbitrary power, there should be some controls to ensure that the power of free speech is not misused. 8 As Martin CJ, himself a former editor of the original Australian newspaper and a former State Premier, said in Anderson v Fairfax 9 in 1883: … the freedom of the press is valuable, but there is a limit beyond which it is necessary, for the sake of the public interests, that this power of examination and comment should not be allowed to go. There are various kinds of tyrannies, but there is no tyranny which would be more disastrous or intolerable than the tyranny of an unbridled press over which there was no control.

“Media Law” is therefore a useful term to describe the checks and balances – not only by the law per se, but in recent times also by way of industry self regulation – placed upon the otherwise free speech exercised by the media. However, what exactly is meant by the term “the media” for these purposes? The answer to this question in the information age is different from that which may have been given in the past. A traditional interpretation might be, as Sir John Donaldson MR observed in 1984 in the passage just quoted, “not only the newspapers but also television and radio”, which might even then have been acknowledged as including other print media, such as books, pamphlets, and magazines, and electronic media, such as films and videos. Today the concept may embrace other means of conveying information and ideas including “new media” such as blogs, podcasts, online bulletin boards and discussion lists, computer software, video games and multimedia. This text was written with this enhanced concept of “the media” in mind. It will become obvious throughout this text 6 7 8 9

See also Art 19 of the Universal Declaration of Human Rights made on 10 December 1948; Art 10 of the European Convention on Human Rights. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 564; Brown v Members of the Classification Review Board of the Office of Film & Literature Classification (1998) 154 ALR 67 at 67. See also Hon Brian Leveson, An Inquiry into the Culture, Practices and Ethics of the Press (2012) at 76. Anderson v Fairfax, Evening News, 7 August 1883.

2 [1.10]

Chapter 1 – Introduction

that while some areas of the law have adapted to these new forms of media, in others the law is struggling to keep apace with changes in technology.

[1.10] 3

Free Speech

2

[2.10] INTRODUCTION .......................................................................................... 5 [2.20] FREE SPEECH AND THE RISE OF A FREE PRESS .......................................... 6 [2.30] PHILOSOPHICAL JUSTIFICATIONS FOR FREE SPEECH .............................. 7 [2.40] Speech and autonomy ................................................................................ 8 [2.50] Speech and truth ......................................................................................... 9 [2.60] Speech and democracy ............................................................................. 12 [2.70] CONSTITUTIONAL EXPRESSIONS ............................................................ 13 [2.80] Constitutional free speech in the United States: The FirstAmendment .... 13 [2.90] Constitutional free speech in Australia: The implied freedom of political communication .................................................................... 16 [2.100] The implied freedom and philosophical justifications for free speech .... 23 [2.110] LIMITS AND CHALLENGES TO FREE SPEECH ........................................ 25 [2.120] CONCLUSION ......................................................................................... 29

Introduction [2.10] The principles of free speech lie at the heart of media regulation in Western liberal democracies such as Australia. While media laws are predicated on a range of public interests – including the importance of privacy, the administration of justice, economic development and security, and moral or community standards – no public interest has the rhetorical, political or legal force of “freedom of speech”. In order to both understand and critically evaluate media regulation, a consideration of free speech is essential. What is “free speech”? Definition is a difficult task. The history of free speech is, in part, a struggle to control its meaning. For the purposes at hand, speech includes at least the physical act of speech – the expression of thought through the spoken word. Writing will constitute speech, as will, for instance, the making of gestures or wearing particular clothing. These forms of expression are “speech” because they have been classified as such in particular histories; the defining of free speech is an effect and a manifestation of particular relationships of political, social, cultural, economic and legal power over the past four centuries. If speech includes words, gestures, actions or signs that express our thoughts, then what is meant by “free speech”? The state is the primary regulator of activities between citizens and it is the state which will, in certain circumstances, prevent its citizens from engaging in certain types of speech. So, in short, free speech is generally understood as speech that is not subjected to regulation by the state. Importantly, it is also the state itself which enacts laws to protect certain kinds of speech and ensure speech is not restricted. This includes protecting speech that is critical of the state. This dichotomy between the citizen and the state is at the heart of free speech debates and it is within this opposition that the rationales for free speech begin to make sense. [2.10] 5

Australian Media Law

The objective of this chapter is to introduce and critically explore free speech principles. This chapter is divided into four sections. First, there is a brief outline of the development of free speech and the emergence of a free press in England through the 16th and 17th centuries. Secondly, the core philosophical justifications for free speech are addressed. Thirdly, there is a consideration of constitutional free speech in the United States and Australia. Fourthly, there is an investigation of some limits and challenges that may warrant critical attention in thinking about free speech. A brief conclusion aims to draw together the various themes and issues of this chapter, suggesting some possible ways to view the relationships between law and speech, and what these relationships might mean for legal regulation of the media.

Free speech and the rise of a free press [2.20] The regulation of the Australian media has its heritage, like most Australian law, in the laws of England. The development of a press freedom in that country is the starting point for an exploration of the law and politics of free speech in Australia today. 1 William Caxton set up the first English printing press at Westminster in 1476, but it was during the rule of Henry VIII (1509–1547) that publishing increased remarkably. That period marked the beginning of a new age of speech. The ability to disseminate information rapidly brought new threats to the authority of the King. It quickly became a crime to print without the Crown’s permission and a licensing system was enforced with varying degrees of will and effectiveness until the mid-1600s. The second half of the 17th century saw perhaps the most fundamental change in English history when rule shifted from the monarchy to the parliament. It was during this period that John Milton made his now famous appeal to Parliament, “A Speech for the Liberty of Unlicensed Printing”, published as the Areopagitica. 2 Milton’s argument had little effect at the time, but was frequently drawn upon many years later in defence of free speech and a free press. 3 The decline of the monarchy saw the abandonment of the law of treason as a control on the press, but the law of seditious libel remained effective. 4 Seditious libel was committed by publishing criticism of the government; the rationale behind this criminal offence was that people should hold a good opinion of the government. It was no defence that the libel was true, as “a true libel is especially dangerous, for unlike a false libel, the dangers of truthful 1

This short history of the press in England draws significantly on the authoritative account by F S Siebert, Freedom of the Press in England 1476–1776 (1965). See also L Levy, Emergence of a Free Press (1985).

2

J Milton, “Areopagitica – A Speech for the Liberty of Unlicensed Printing” (first published 1644), in H B Cotterill (ed), Milton’s Areopagitica – A Speech for the Liberty of Unlicensed Printing (1904), p 45.

3

Siebert (1965), p 196. The best known citation of the Areopagitica is in John Stuart Mill’s “On Liberty”: J S Mill, “On Liberty” in M Warnock (ed), John Stuart Mill: Utilitarianism, On Liberty, Essay on Bentham (1962). B Edgeworth, “Defamation law and the emergence of a critical press in colonial New South Wales” (1990) 6 Australian Journal of Law and Society 50 at 55-59.

4

6 [2.20]

Chapter 2 – Free Speech

criticism cannot be defused by disproof. … ‘The greater the truth the greater the libel’”. 5 Siebert argues that the regular searching, harassment and imprisonment of printers was so great that “no single method of restricting the press was as effective as the law of seditious libel as it was developed and applied by the common law courts in the later part of the 17th century”. 6 The rise of parliamentary democracy saw freedom of speech take hold in the parliament. However, this was not immediately accompanied by an increase in press freedom. Until the late 18th century, parliamentarians: Accepted the theory that they were representing the people but at the same time refused to acknowledge that they were responsible to the people. Not being responsible to the public, there was no reason to inform it of matters under discussion or of reasonings on these matters. 7

There was a gradual easing of restrictions on the reporting in the press of parliamentary proceedings. By 1771, after a show of popular support for publishers who were charged with reporting parliamentary proceedings, the parliament capitulated and proceedings were reported daily and without fear of punishment. 8 The change pointed towards a shift in the nature of parliament: Not only was the ancient system shattered, but a new democratic movement was tacitly recognised in which the public as well as the members had an interest … The bright light of publicity, the open and often irrational criticism of newspaper editors, the immediate and recurrent pressure of public groups – all served to accelerate the change from an independent to a responsible representative assembly. The freedom of the press to report to the public the actions and opinions of its representatives was a significant step toward a wider and more direct democracy. 9

It was around this time that modern free speech principles began to take shape at a remarkable historical intersection of philosophical upheaval, political revolution and legal protection for speech. Philosophical upheaval is an especially enduring and important dimension of free speech. It provides a framework against which the law and politics of free speech might be understood.

Philosophical justifications for free speech [2.30] The 18th century saw a distinct shift in philosophical thought within which lies the beginning of contemporary free speech theory. This period of change is known as the Enlightenment. The Enlightenment was characterised by a rejection of knowledge derived through tradition and authority, including religious authority. Instead, the fundamental source of knowledge about the physical and human world became reason – that is, the capacity of 5

Rex v Tutchin (1704) 14 Howell’s State Trials 1095 at 1128, cited in G Stone, L Seidman, C Sunstein and M Tushnet (eds), Constitutional Law (1991), p 1012.

6 7

Siebert (1965), p 269 and generally at pp 269-275, 380-392; Levy (1985), pp 7-15. Siebert (1965), p 285.

8

Nonetheless, successful libel actions continued for some years. Only after the decision in Stockdale v Hansard (1839) III State Trials 723 did the Parliament legislate to ensure unfettered publication. Siebert (1965), p 363.

9

[2.30] 7

Australian Media Law

human beings to know truth through independent and critical thought. The pursuit of human freedom – of liberty – was directed toward the individual because reason resides with the individual. This philosophical revolution was seen at the time as “the achievement by the self of its proper autonomy,” liberating individuals from “outmoded forms of social organisation”. 10 Douzinas and Warrington summarised the impact of the Enlightenment for the progressive thinkers of the time: The shackles that held back political organisation, thought, individual liberty, and production were overthrown. Modern thought becomes possible because the terror of superstition has been replaced. 11

With reason as the foundation for liberty, free speech is necessary in order that all forms of authority be subjected to challenge. John Stuart Mill’s On Liberty, published in 1859, is perhaps the key text which advocates the necessity of free speech and a free press in light of both the political structure of the day and Enlightenment thought. 12 The philosophical insights of the Enlightenment and its concern with individual liberty remain, to this day, the background against which contemporary free speech debates occur. Philosophical justifications for free speech all relate to a fulfilment of the human condition through liberty, but are directed towards it (or draw upon it) in different ways. First, there is the proposition that speech is a good thing because acts of speaking and listening enhance our humanity and maintain our human dignity. Secondly, speech is said to enable the discovery of “truth” and this is innately beneficial to humans as it enables us to live a moral or good life. Thirdly, it can be argued that free speech enhances the possibilities and quality of democracy, and democracy is good for our humanity. These will be explored in turn. 13 The extent to which speech should be (or perhaps is) protected may depend on what kind of speech it is. For the purposes of this chapter, speech can be considered as speech with factual content (information), speech with normative or moral/ethical content (including political discussion and opinions), or speech with expressive content (especially artistic works or acts of self-expression). While the distinctions are necessarily somewhat artificial and overlap, the delineation might make it easier to understand the philosophical rationales and their applications.

Speech and autonomy [2.40] It is said that one reason speech should be protected is because it enhances an individual’s autonomy. This position can take different forms. The primary argument is that speech is a uniquely human activity. It is the expression of thought and in speaking we fulfil and live out our humanity. Here, speech would usually be 10 11 12 13

A MacIntyre, After Virtue – A Study in Moral Theory (1981), p 58. C Douzinas and R Warrington with S McVeigh, Postmodern Jurisprudence – The Law of Text in the Texts of Law (1991), p 7. Mill in Warnock (ed), John Stuart Mill: Utilitarianism, On Liberty, Essay on Bentham (1962), pp 126-250. On the philosophy of free speech, see E Barendt, Freedom of Speech (2nd ed, 2005); T Campbell, “Rationales for freedom of communication” in W Sadurski and T Campbell (eds), Freedom of Communication (1994), pp 17-44; K Greenawalt, “Free speech justifications” (1989) 89 Columbia Law Review 119; W Sadurski, Freedom of Speech and its Limits (1999); F Schauer, Free Speech: A Philosophical Inquiry (1982).

8 [2.40]

Chapter 2 – Free Speech

understood as something that is directly and intrinsically valuable of itself, rather than being something that is instrumentally valuable (in the sense that it helps us achieve a goal). This traditional formulation is at its strongest in protecting aesthetic and self-expressive speech. An extension of the autonomy argument might justify protecting factual and political speech. On the primary view, there is a right to speak because it is important to the speaker; on this formulation, there is a right to speak because others need to hear what you have to say. 14 Scanlon argues that because autonomous human beings have a right to make up their own minds they also have a right to all the information that is necessary for them to do that. 15 Regulation that removes our awareness of alternatives will thus reduce our autonomy. The democratic implications of this rationale are that individuals have “a right to the information necessary to make informed choices and can claim this right against the government because of the democratic relationship between the state and its citizens”. 16 Adrienne Stone has argued that the autonomy justification could have a significant role to play in determining the nature and operation of constitutional free speech in Australia. 17 There are some difficult issues for the autonomy arguments when studying why people speak. Should speech be protected when a speaker claims that their speech is intrinsically valuable while a critic claims the speech in question is really an instrumental tool that has some other aim? For example, advertising, pornography or political protest marches may be better interpreted as forms of expression aimed at achieving goals rather than speech that fulfils a speaker’s humanity. If so, then decisions about protecting the speech in question would be dependent on the value of any particular goal trying to be achieved. 18 The two goals that are usually said to require free speech are the discovery of truth and the pursuit of democracy.

Speech and truth [2.50] A second defence of free speech lies in the value of speech for the discovery of truth. “Truth” is not restricted to information; it includes political or ethical truths – the moral principles which should guide the way we live. The argument is that speech should be protected because truth can only be discovered where there is a circulation of all ideas, regardless of their perceived value at any given time. If the circulation of ideas is restricted, truth may be displaced by falsehood. The genesis and perhaps the best known expression of this rationale is in Milton’s oft-quoted Areopagitica: 14 15 16 17 18

See Schauer (1982), p 69 and Campbell in Sadurski and Campbell (eds), Freedom of Communication (1994), pp 35-36. T Scanlon, “A theory of freedom of expression” (1972) 1 Philosophy and Public Affairs 204 at 221-222. Scanlon (1972) at 222. A Stone, “Rights, personal rights and freedoms: The nature of the freedom of political communication” (2001) 25 MULR 374. Notions of autonomy and self-expression may be relevant to the law’s response to, for example, obscene publications and pornography: see Chapter 9, Offensive Publications.

[2.50] 9

Australian Media Law And though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously, by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter? 19

For Milton, a free press was vital in circulating ideas and truth would always prevail regardless of what other ideas might be circulated. 20 The rationale relies on the human faculty of reason; in short, we will recognise truth when we see it. 21 For Milton, reason has a pre-Enlightenment hue: it enables us to distinguish between good and evil, or right and wrong, and to interpret God’s plan and the divine path to the good life. 22 The truth justification finds its Enlightenment manifestation in On Liberty where Mill explored “the nature and limits of the power which can be legitimately exercised by society over the individual”. 23 Mill was concerned that humans are fallible; opinions should not be silenced by the government because such opinions may turn out to be true. 24 Even false opinion should not be hidden by those who believe they have identified the correct position: Every opinion which embodies somewhat of the portion of truth which the common opinion omits, ought to be considered precious, with whatever amount of error and confusion that truth may be blended. 25

Opinions which are true must be held on a rational basis or “rejected wisely and considerately;” it is not enough that truth exists “as a prejudice, a belief independent of … argument”. 26 Regardless of how true an opinion might be, it can only remain as a “living truth” if it is continually challenged; “if it is not fully, frequently and fearlessly discussed, it will be held as dead dogma”. 27 The echoes of Milton remain: The beliefs which we have most warrant for have no safeguard to rest on, but a standing invitation to the whole world to prove them unfounded. If the challenge is not accepted, or accepted and the attempt fails, we are far enough from certainty still; but we have done the best that the existing state of human reason admits of; we have neglected nothing that could give truth a chance of reaching us … This is the amount of certainty attainable by a fallible being, and this is the sole way of admitting it 28

A question of particular importance arises in this justification for free speech: is it possible to discover truth? There are two responses, one old and one new. The traditional rationale does 19

21 22

Milton in Cotterill (ed), Milton’s Areopagitica – A Speech for the Liberty of Unlicensed Printing (1904), p 45. The plea did not by any means suggest completely unrestricted printing – Milton’s concern was primarily for the freedom of (Protestant) intellectuals: Levy (1985), pp 93-94. While Milton never argued for a completely free press (recommending “fire and the executioner” as the solution for books which had a bad effect) there is something of an irony in his own efforts to spread truth as he became the chief censor for Oliver Cromwell in the period when press restrictions were at their tightest; J Hohenberg, Free Press, Free People (1973), pp 23-25. J Keane, The Media and Democracy (1991), pp 11-13, esp p 12 on reason. J Keane (1991), pp 11-13.

23 24 25 26

Mill Mill Mill Mill

27 28

Mill in Warnock (ed), John Stuart Mill: Utilitarianism, On Liberty, Essay on Bentham (1962), p 161. Mill in Warnock (ed), John Stuart Mill: Utilitarianism, On Liberty, Essay on Bentham (1962), p 147.

20

10 [2.50]

in in in in

Warnock Warnock Warnock Warnock

(ed), (ed), (ed), (ed),

John John John John

Stuart Stuart Stuart Stuart

Mill: Mill: Mill: Mill:

Utilitarianism, Utilitarianism, Utilitarianism, Utilitarianism,

On On On On

Liberty, Liberty, Liberty, Liberty,

Essay Essay Essay Essay

on on on on

Bentham Bentham Bentham Bentham

(1962), (1962), (1962), (1962),

p p p p

126. 143. 174. 162.

Chapter 2 – Free Speech

not rely on the attainment or existence of truth itself, but on degrees of certainty. In its simplest form, the argument is that even if truth cannot be certainly established, more knowledge will still be better than less knowledge; “some epistemic states are preferable to other epistemic states”. 29 The issue is whether some “epistemic advance” can be made. 30 The argument is that if more knowledge abounds in the community then more ideas about the way we should live will be circulated in the political community. With more ideas available, we are in a better position to make a decision about what will constitute the good life. The more recent argument is the anti-foundationalist position (often expressed as postmodernism): it is simply not possible to discover truth because all claims to knowledge are claims to power. 31 That is, any claim to a moral principle which can apply to other people is a claim to exercising power because the proposed ethical norm is from a particular position (that of the self) and necessarily cannot take account of the experiences of the object of that principle (the other), yet this norm would be imposed upon all universally. At its strongest, this position may imply that everything is relative and there is no such thing as truth; all claims to truth are matters of perspective and no one can make authoritative judgments about right and wrong. The anti-foundationalist response to those arguments is generally framed in terms such as inclusion and exclusion. It is not that one cannot make moral claims, but one should be cautious because your own claims may operate to exclude the claims of others. The better position, according to this response, is to search for principles that include others in the moral community, and this may rely upon or result in the co-existence of moral principles that are different but equally valid in their ethical status. The extent of protection may depend on the type of speech. In matters of science where the objective truth may be provable, at least to the extent that it corresponds in a compelling manner to a physical test, there may be an argument to offer greater protection to speech. The claims to truth in other categories of knowledge may warrant closer examination when exploring the extent of protection that should be afforded them. 32 Schauer claims that in matters of ethics, of what is good and (morally) right, the argument for truth is not faultless but it is still useful: It … focus[es] our attention on fallibility, on the possibility that “we” may be wrong and “they” may be right. To the extent that the suppression of opinion may be inconsistent with this understanding of our fallibility, the argument from truth at least gives us pause before we so quickly assume the truth of received opinion. 33 29 30

Schauer (1982), pp 17-18. Schauer (1982), p 25.

31

For those unfamiliar with this school of thought, the following may be helpful starting points. A very short and very readable statement of the central tenets can be found in M Foucault, “The political function of the intellectual” (1977) 17 Radical Philosophy 10. For an introduction to law and postmodern thought, see R Hunter, R Ingleby and R Johnstone (eds), Thinking About Law (1995), pp 123-131, P Murphy, “Postmodern perspectives on justice” (1991) 30 Thesis Eleven 117, or A Todd, “Neither Dead nor Dangerous: Postmodernism and the Teaching of Legal Writing” (2006) 58 Baylor Law Review 893. For an anti-foundationalist reading of free speech, see S Fish, There’s No Such Thing As Free Speech (And It’s A Good Thing Too) (1994).

32 33

Schauer (1982), pp 30-33. Schauer (1982), p 34.

[2.50] 11

Australian Media Law

The search for truth in an environment of unfettered discourse finds expression in American jurisprudence as the “marketplace of ideas”. The dissenting judgment of Holmes J in Abrams v United States, handed down 60 years after Mill published On Liberty, is perhaps the most famous judicial articulation of the rationale: “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” 34

Speech and democracy [2.60] The third main justification for protecting speech derives from the democratic structure of societies: if there are no restrictions on the speech which can be exchanged in the body politic then the outcome will be a healthier and more “pure” democracy. One view of the democracy argument considers the content of speech as information: access to information enables citizens to assess the workings and outcomes of the democratic processes and, accordingly, the quality of democracy will be improved. 35 A second view of the democracy argument considers the content of speech as normative or political opinion, where more speech will provide a wider choice of political views and ethical alternatives. The democratic argument gives rise to especially strong claims for the protection of factual speech relating to government and politics. This is because elected representatives have, first, an interest in silencing speech (it may, for example, prevent the exposure of information that would prevent them being re-elected) and secondly, they have the ability to silence speech by making restrictive laws. The democratic structure and operation of a society will thus be enhanced by the availability of information about politicians and the political process. Although the democratic rationale is traditionally seen as providing support for freedom of speech, it becomes substantially more complex when the content of speech is concerned not just with information but with norms and ethics. Here, a healthy democracy – facilitated by free speech – provides the conditions for moral agreement through consensus. 36 The argument is that a democratic political community might possibly agree on at least a basic set of acceptable (if not universal) moral principles. This democratic justification does not require that an ethical stance must be “true”; it only requires that there is a consensus on the position and that the consensus has been reached through democratic processes. But this brings with it a contradiction: while it might be essential to protect speech in order to have a healthy democracy, it might also be necessary to restrict speech for exactly the same reason. This may be a result of the circumstances in which communication takes place, or it may be required by the content of the consensus. First, it is implicit in the democratic rationale that there are no significant inequalities of power when people communicate. According to Schauer, it assumes that: 34

Abrams v United States 260 US 616 at 630 (1919).

35 36

Campbell in Sadurski and Campbell (eds), Freedom of Communication (1994), p 39. The approach draws substantially upon the work of German political philosopher, Jurgen Habermas, for whom the realisation of moral principles is possible through the exercise of reason. See J Habermas, The Theory of Communicative Action (Trans: T McCarthy) (1987), Vol 2.

12 [2.60]

Chapter 2 – Free Speech All of the participants in an exchange of views are of roughly similar ability to speak and roughly similar ability to understand; that neither the making nor the understanding of communications is distorted by bias; and that all of the participants in the deliberation will evaluate with care and sympathy the utterances of all others. 37

So, if democratic consensus requires equality in communication, it could well be argued that the state should act to remove inequalities in the communicative process and ensure that the silenced are heard and the powerful do not prevail in public discourse. 38 Secondly, consensus itself may dictate that speech should be limited. Where a democratic community agrees on a moral principle that should guide actions, then such a principle will provide a basis upon which to regulate speech. That is, the state can justifiably legislate to prevent the expression of ideas that are inconsistent with that consensus. For instance, the community may express the view (through its elected representatives) that it is of primary importance that individuals be entitled to live in the community without being vilified on the grounds of their race, and that the absence of vilification would also enhance the democracy. On this consensus, racial vilification laws can be justified as a legitimate restriction on speech. The preamble to the Racial and Religious Tolerance Act 2001 (Vic) provides a very clear articulation of this approach. The democratic rationale is thus a double-edged sword, both supporting and denying claims to free speech.

Constitutional expressions [2.70] Constitutional laws are the most significant of all the various laws that take account of free speech principles. It is in constitutional interpretation that the philosophy, history and politics of free speech become clearly visible in the law, and it is constitutional laws that most substantially limit the powers of the legislature to restrict speech. 39

Constitutional free speech in the United States: The First Amendment [2.80] On 4 July 1776, the American colonies formed the United States of America. Their Declaration of Independence from Britain captures the philosophical revolution of the age: 37

38

39

F Schauer, “Free speech in a world of private power”, in Sadurski and Campbell (eds), Freedom of Communication (1994), pp 1-16. This assumption parallels Habermas’ concept of the “ideal speech situation”; Schauer (1994), p 6. On this aspect of Habermas, see W Outhwaite, Habermas: A Critical Introduction (1994), Ch 3. For different perspectives on the role of the state, see R Post, “Meiklejohn’s mistake: Individual autonomy and the reform of public discourse” (1993) University of Colorado Law Review 1109; O Fiss, “State activism and state censorship” (1991) 100 Yale Law Journal 2087. Constitutional comparisons are complex. A Stone, “The Comparative Constitutional Law of Freedom of Expression” in T Ginsburg and R Dixon (eds), Research Handbook on Comparative Constitutional Law (2011) considers a range of jurisdictions with clear points of comparison for Australia. In Europe, the Council of the European Union EU Human Rights Guidelines on Freedom of Expression Online and Offline, 12 May 2014, use comprehensive and clear links to the philosophical justifications, http://eeas.europa.eu/delegations/ documents/eu_human_rights_guidelines_on_freedom_of_expression_online_and_offline_en.pdf.

[2.80] 13

Australian Media Law We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

In pursuance of such government, the US Constitution was ratified in 1788 and amended by the Bill of Rights in 1791. The First Amendment enshrines free speech rights: “Congress shall make no law … abridging the freedom of speech, or of the press ….” First Amendment jurisprudence is instructive in the Australian context for several reasons. First, much like the Australian High Court, the Supreme Court of the United States has the responsibility for interpreting the Constitution. As the benchmark expression of free speech rights, the First Amendment has been subjected to extensive interpretation and these philosophical justifications find their fullest judicial expressions in the Supreme Court cases. In this context, the development of the American position is a useful point of comparison for the Australian experience. Justice Oliver Wendell Holmes laid the foundations of First Amendment jurisprudence in 1919 with his opinion in Schenk v United States: speech could be restricted if there was “a clear and present danger that [the words] will bring about the substantive evils that Congress has a right to prevent”. 40 The more famous expression of the test came soon after in Abrams v United States with Holmes’ dissenting judgment (with Brandeis J concurring), this time using the clear and present danger test to protect speech: I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. …. Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, “Congress shall make no law … abridging the freedom of speech”. 41

The (concurring) opinion of Brandeis J in Whitney v California is perhaps the most evocative judicial defence of free speech. 42 Ms Whitney was convicted of a conspiracy-style offence because of her membership and activities in the Communist Labor Party. His Honour stated: Those who won our independence believed that the final end of the state was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. … They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognised the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage 40

Schenck v United States 249 US 47 at 52 (1919).

41

Abrams v United States 260 US 616 at 630-631 (1919). Richard Polenberg’s Fighting Faiths: The Abrams Case, The Supreme Court and Free Speech (1989) is a history of this case and provides an excellent insight into the political climate at the time to give a sense of the issues with which the Court had to engage. Whitney v California 274 US 357 (1927).

42

14 [2.80]

Chapter 2 – Free Speech thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law – the argument of force in its worst form. … It is the function of speech to free men from the bondage of irrational fears. … Those who won our independence … did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence …. 43

After the composition of the bench altered during the 1930s and the persistent dissents of Holmes and Brandeis gradually became the majority opinions, the clear and present danger test was applied regularly to support the protection of speech in a range of First Amendment cases. 44 However, different types of speech have been accorded differing levels of protection based on the refinement or varied application of the test. Subversive speech, 45 threats of violence, 46 racist speech, 47 defamation 48 and pornography 49 have been among the more contentious issues. 43

Whitney v California 274 US 357 at 376-377 (1927).

44

The dissents of the 1920s included Schaefer v United States 251 US 466 (1920); Pierce v United States 252 US 239 (1920); Gilbert v Minnesota 254 US 325 (1920); Gitlow v New York 268 US 652 (1925). See also Stone et al (1991), p 1051 for criticism of the continual dissent, and generally pp 1054-1055.

45

Subversive speech received little protection when the Court in the 1950s upheld convictions involving communist conspiracies for activities such as conspiring to advocate the overthrow of the government: Dennis v United States 341 US 494 (1951). Compare Australian Communist Party v Commonwealth (1951) 83 CLR 1, where proscribing legislation was struck down as unconstitutional, though not on a free speech basis: see H Charlesworth, “Individual rights and the Australian High Court” (1986) 4 Law in Context 52 at 62-63.

46

Chaplinsky v New Hampshire 315 US 568 (1942). Where there was an immediacy to the threat of violence, the Court adopted the “fighting words” doctrine whereby there would be no protection for words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality”. The fighting words doctrine has not been applied in the US since Chaplinsky: Stone et al (1991), pp 1095-1100. In Australia the fighting words doctrine was drawn upon to support the validity of a criminal statute directed at insulting words: Coleman v Power (2004) 220 CLR 1; [2004] HCA 39. This has been criticised by D Meagher, “The “fighting words” doctrine: Off the First Amendment canvas and into the implied freedom ring?” (2005) 28 UNSWLJ 852.

47

In Brandenburg v Ohio 395 US 444 (1969), a Ku Klux Klan leader had been convicted following a rally and a speech; racist speech which did not pose a clear and present danger was protected. In Beauharnais v Illinois 343 US 250 (1952), a vilification style statute was held to be constitutionally valid as it fell into the category of libel (as a group libel) and thus racist speech was at the time excluded from the categories of speech protected by the Constitution. Conversely, the Supreme Court held in RAV v St Paul 120 L Ed 2d 305 (1992) that burning of a cross in the yard of a black family was constitutionally protected speech, cf Virginia v Black 155 L Ed 2d 535 (2003) where, the Court upheld the validity of a cross-burning statute.

48 49

New York Times v Sullivan 376 US 254 (1964). Although obscenity is not wholly protected by the First Amendment, statutes which have sought to outlaw pornography on the basis that it causes harm have been invalidated on First Amendment grounds: American Booksellers Association v Hudnut 771 F 2d 323 (7th Cir, 1985).

[2.80] 15

Australian Media Law

For all the change and inconsistencies in the US interpretations, the history and philosophy of free speech are crystallised in the First Amendment. 50 In Australia, the legal debate has rarely been so explicit in its articulation of the philosophical justifications for free speech.

Constitutional free speech in Australia: The implied freedom of political communication [2.90] The Australian Constitution does not include an equivalent to the First Amendment express guarantee of free speech. Although the American Constitution offered a model and inspiration for the Australian document, the period of history did not, for the most part, lead the framers of the document to feel it necessary to include such guarantees. The shift to Federation was not seen as a revolutionary one and, with the entrenchment of democracy in England and the United States indicative of a “civilising” progress, formal protections from the state were not required. 51 The protection of liberty could be safely left to the common law and legislatures which were representative of and responsible to the people. 52 It was not until 1992 that the High Court considered in any detail the proposition that there may be implied into the Constitution a legal right to free speech, at least on matters of government and politics. 53 In the landmark cases of Nationwide News Pty Ltd v Wills and Australian Capital Television Pty Ltd v Commonwealth (ACTV) the Court held by majority that the representative nature of Australian government was the basis upon which a freedom of political communication was implied into the Constitution. 54 The legislative powers of the Commonwealth are thus limited by the implied freedom of communication. Similarly, it is now well established that the freedom will apply equally to “the formulation of common law principles”. 55 In these early cases the nature of the freedom was unsettled. The judgments express various views about why such a freedom can be implied. Some judgments suggested that the 50

See L Bollinger and G Stone (eds), Eternally Vigilant: Free Speech in the Modern Era (2002) for an excellent exploration of the First Amendment by leading US scholars.

51

On the emergence of libel laws and a culture of free speech (or otherwise) in Australia, see Edgeworth (1990); R Pullan, Guilty Secrets: Free Speech and Defamation in Australia (1994), especially Chs 4-6. Charlesworth (1986). See also Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 135-136 (per Mason CJ), 182, 186 (per Dawson J); Theophanous v Herald & Weekly Times (1994) 182 CLR 104 at 127-128 (per Mason CJ, Toohey and Gaudron JJ), 159-160 (per Brennan J), 166-170 (per Deane J), 200-201 (per McHugh J).

52

53

In several dissenting judgments, Murphy J foreshadowed the identification of an implied right to free political speech in the Australia Constitution: McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633 at 670; Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54 at 88; Miller v TCN Channel Nine (1986) 161 CLR 556 at 581-582.

54

Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106. The Court was comprised of Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Dawson J dissented on the existence of the implied right. Brennan J held that there was an implied right, but in Australian Capital Television dissented with respect to the bulk of the legislation on the basis that most provisions were proportionate to the legitimate interest the restriction on speech was intended to serve.

55

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 568; Coleman v Power (2004) 201 CLR 1 at [195] (per Gummow & Hayne JJ); Wotton v Queensland (2012) 246 CLR 1 at [20] (per French CJ, Gummow, Hayne, Crennan & Bell JJ).

16 [2.90]

Chapter 2 – Free Speech

freedom could be implied because the Constitution established a representative democracy, while others grounded the implication in the narrower idea of “representative government”. 56 The idea of representative democracy as a basis for free speech received more extensive support in the 1994 cases of Theophanous and Stephens. 57 Theophanous is noted for the court’s extension of the implied freedom to include a “constitutional defence” to a defamation action and was as close as the court has come to finding a “personal right” to free speech, as opposed to a limitation on legislative power. 58 Dawson J was the sole dissenter in the 1992 and 1994 free speech cases on the issue of whether some form of implied freedom of political communication existed in the Constitution. The rights and freedoms in a democratic society exist, he says: not because they are provided for, but in the absence of any curtailment of them. Freedom of speech … is a concept that finds no expression in our Constitution, notwithstanding that it is as much the foundation of a free society here as it is [in the United States]. … [I]n this country, the guarantee of fundamental freedoms does not lie in any constitutional mandate but in the capacity of a democratic society to preserve for itself its own shared values. 59

In the end, however, neither the resistance of Dawson J nor some of his colleagues’ more expansive interpretations would last. Lange v Australian Broadcasting Corporation came before the Court in 1997. 60 The former Prime Minster of New Zealand had commenced action against the ABC for defamatory imputations broadcast in a Four Corners current affairs program in 1990. The defendant relied on the “constitutional defence” identified in Theophanous. The court held that Theophanous was no longer good law and substituted an extended form of qualified privilege. 61 The new law was not a boon for press freedom; the court indicated that a media outlet would face fairly 56

Mason CJ and Brennan J based their decisions on representative government, but representative democracy also had some significance. McHugh J focussed on representative and responsible government, finding that the implication turned on the provisions of the Constitution – especially ss 7 and 24 – which establish a form of government where Senators and Members of the House of Representatives are “directly chosen by the people”. Brennan J also paid some attention to the text and structure arguments. Deane and Toohey JJ discussed the notion of representative government, but without the express focus on ss 7 and 24 which became the foundation of the later Lange decision. The approach of Gaudron J relied more explicitly on representative democracy for the implication. Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 135-140 (per Mason CJ); 168 (per Deane and Toohey JJ); 210-211, 215 (per Gaudron J); 227-233 (per McHugh J); Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 46-50, 60 (per Brennan J); 70-73 (per Deane and Toohey JJ).

57

Theophanous v Herald & Weekly Times (1994) 182 CLR 104 at, for instance, 123, 130 (per Mason CJ, Toohey and Gaudron JJ); cf at 199-201 (per McHugh J, dissenting). Stephens v West Australian Newspapers (1994) 182 CLR 211 at 233-234 (per Mason CJ, Toohey and Gaudron JJ). The distinction between representative democracy and representative government appears once again: see McHugh J at 199-201 and Dawson J at 189. See also Cunliffe v Commonwealth (1994) 182 CLR 272, and later McGinty v Western Australia (1996) 134 ALR 289. Theophanous v Herald & Weekly Times (1994) 182 CLR 104 at 208 (per Mason CJ, Deane, Toohey and Gaudron JJ; Brennan, Dawson and McHugh JJ dissenting). Theophanous v Herald & Weekly Times (1994) 182 CLR 104 at 183 (per Dawson J). Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. The Court also considered the implied freedom in Levy v Victoria (1997) 189 CLR 579 decided at the same time. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 556.

58 59 60 61

[2.90] 17

Australian Media Law

onerous requirements to establish that it had acted reasonably in publishing information that later turned out to be wrong. 62 The unanimous decision from all seven Justices was suggestive of consolidation and compromise in order to provide certainty about the nature of the freedom and the extent of its application. For the derivation of the freedom, the court relied primarily on the text of the Constitution, especially ss 7 and 24: [T]he Constitution intended to provide for the institutions of representative and responsible government … Freedom of communication on matters of government and politics is an indispensable incident of that system of representative government which the Constitution creates …. 63

That system of government demands a “freedom of communication between the people concerning political or government matters which enables the people of the Commonwealth to exercise a free and informed choice as electors”. 64 The nature of the freedom was illustrated with a contrast between the Australian and US positions: Unlike the First Amendment … which has been interpreted to confer private rights, our Constitution contains no express right of freedom of communication or expression. Within our legal system, communications are free only to the extent that they are left unburdened by laws that comply with the Constitution. 65

Lest there be any doubt, it was noted that the freedom “operates as a restriction on legislative power” and the Constitution does not “confer personal rights on individuals”. 66 Accordingly, rights-based jurisprudence from other jurisdictions has had a limited influence in subsequent decisions. 67 The narrow constitutional approach contrasts with the jurisprudence that has emerged under legislative instruments such as the Victorian Charter of Human Rights and Responsibilities (2006). 68 The freedom is not limited to communication between the electors and members of the Parliament. It extends to communication among the electors. 69 Communication between electors has been identified as being “at the very heart of the

62 63

64 65

66 67 68 69

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 573-574. See further [3.970]-[3.990]. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 559-560. See further [3.970]. At 557-559, the principal sections relied on were ss 7 and 24 of the Constitution, but these were supported by ss 1, 6, 8, 13, 25, 28, 30, 49, 62, 64, 83 and 128. There is also a reference to the Constitutional debates of 1897. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 560. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567. For comparisons with the UK and New Zealand, see, respectively, Reynolds v Times Newspapers Ltd [1999] 3 WLR 1010 and Lange v Atkinson [2000] 3 NZLR 385. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 560, 561. Becker v City of Onkaparinga (2010) 108 SASR 163; [2010] SASCFC 41 at [45]-[52]. Kracke v Mental Health Review Board [2009] VCAT 646; XYZ v Victoria Police [2010] VCAT 255. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 560. Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at [4], [11] (per Gleeson CJ); [73], [102] (per Gaudron, McHugh & Gummow JJ); [170] (per Kirby J); [221]-[225] (per Hayne J).

18 [2.90]

Chapter 2 – Free Speech

freedom”. 70 It cannot be confined to the election period, since most of the matters necessary to enable people to make an informed choice will occur after the holding of one election and before the calling of the next. If the freedom to receive and disseminate information were to be confined to election periods then the electors would be deprived of the greater part of the information necessary to make an effective choice at the election. 71 The constitutional freedom operates within limitations. First, the freedom is not a general one. Legislative power and the reach of the common law are limited only with respect to political communication. Secondly, under Lange and subsequent decisions, the parliament may make a law that restricts political communication if the law is “reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government”. 72 The common law is similarly limited. A law that satisfies these conditions will not offend the constitutional freedom of political speech. However, such a determination is not straightforward. The courts have not provided a clear indication of what constitutes political communication and there is a significant degree of discretion in the interpretation and application of the second limb. The cases nevertheless provide some guidance. The High Court held in Levy (decided on the same day as Lange) that, for safety reasons, animal-rights protesters could be prevented from entering a duck-shooting area even though there would be an incidental impairment of the Constitutional freedom of political communication. 73 Similarly, it was suggested that a law banning bonfires to prevent an outbreak of bushfires may validly outlaw a bonfire that has a political effigy as its centrepiece. 74 It should be reiterated that “communication” was not limited to written and spoken words. It extends to non-verbal communication, and covers communication by, for example, signs, symbols, gestures and images. 75 In the Rabelais case, the question arose as to whether a law which effectively prohibited publication of material which “instructs in matters of crime” would infringe the implied 70

71 72

73 74 75

Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at [73] (per Gaudron, McHugh & Gummow JJ); see the joint judgment also at [102]; [4], [11] (per Gleeson CJ); [170] (per Kirby J); [221]-[225] (per Hayne J). An interesting point of comparison is Langer v Commonwealth (1996) 186 CLR 302. Note Dawson J at 326-327, in a not-so-subtle criticism of the majority, who found against Langer on other grounds: “the exhortation or encouragement of electors to adopt a particular course in an election is of the very essence of political discussion”. On electoral matters, see also Mulholland v Australian Electoral Commission (2003) 128 FCR 523. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 561. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 561-562; Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 at [91]-[96] (per McHugh J); [195]-[196] (per Gummow & Hayne JJ); APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; 219 ALR 403 at [58] (per McHugh J); [213] (per Gummow J); [346]-[348], [362] (per Kirby J); Hogan v Hinch (2011) 243 CLR 506 at [47] (per French CJ), [97] (per Gummow, Hayne, Heydon, Crennan, Kiefel & Bell JJ). Levy v Victoria (1997) 189 CLR 579 at 595 (per Brennan CJ); 609 (per Dawson J); 614 (per Toohey and Gummow JJ); 619-620 (per Gaudron J); 627 (per McHugh J); 648 (per Kirby J). Levy v Victoria (1997) 189 CLR 579 at 595 (per Brennan CJ). Levy v Victoria (1997) 189 CLR 579 at 594-595 (per Brennan CJ); 613 (per Toohey and Gummow JJ); 622-623 (per McHugh J); 638 (Kirby J).

[2.90] 19

Australian Media Law

freedom. 76 A university student newspaper published critical comments on capitalism and poverty and then set out “a step by step guide to shoplifting”. 77 This was refused classification by the censors, thus restricting publication. The Full Court of the Federal Court held that the scope of “political discussion” was “broad and generous” but instruction in crime was not political discussion. 78 Moreover, even where an article might be categorised as political discussion in spite of instructing in matters of crime, a law restricting publication would still be valid because, under the Lange test: the law would have a legitimate object in the prohibition of crime; it would be compatible with representative government; and it would be reasonably and appropriately adapted to its legitimate object. 79 However, a law which sought to prevent publication of material which merely informed a reader about crime (rather than instructing in crime) would not be valid. 80 In Coleman v Power, the High Court addressed the validity of a statute that made it an offence to use “threatening, abusive or insulting words” in a public place. 81 Although different members of the court approached the issue in different ways and came to different conclusions, it seems clear enough that laws of this kind which have the effect of restricting political communication will be valid provided that they are fairly clearly designed to maintain public order in the sense that physical violence is to be prevented. 82 However, the case leaves open the possibility that insult-based laws which restrict political speech may be valid even if they are not closely directed at public order in this sense. 83 In 2013 the High Court in Monis v R considered the validity of a law that criminalised the use of a postal service in ways that a reasonable person would regard as “offensive”. It was held that this law was invalid; political communications may be offensive such that the freedom is effectively burdened, and the rationales for the law – particularly preventing offence – did

76 77 78

79

80 81 82 83

Brown v Members of the Classification Review Board of the Office of Film & Literature Classification (1998) 82 FCR 225 (the Rabelais case). Special leave to appeal to the High Court was refused 11 December 1998. Brown v Members of the Classification Review Board of the Office of Film & Literature Classification (1998) 82 FCR 225 at 246-252. Brown v Members of the Classification Review Board of the Office of Film & Literature Classification (1998) 82 FCR 225 at 243, 244-246 (per Heerey J); 258 (per Sundberg J); cf French J at 238 who suggests the article in question, even though it did instruct in matters of crime, might be legitimately have been construed as political discussion nevertheless. Brown v Members of the Classification Review Board of the Office of Film & Literature Classification (1998) 82 FCR 225 at 238-239 (per French J); 246 (per Heerey J, though he did not find it necessary to decide the question); 258 (per Sundberg J). Brown v Members of the Classification Review Board of the Office of Film & Literature Classification (1998) 82 FCR 225 at 239-240 (per French J); 257 (per Sundberg J). Coleman v Power (2004) 201 CLR 1; [2004] HCA 39. Coleman v Power (2004) 201 CLR 1; [2004] HCA 39 at [15] (per Gleeson CJ); [102] (per McHugh J); [198] (per Gummow & Hayne JJ); [256] (per Kirby J). Coleman v Power (2004) 201 CLR 1; [2004] HCA 39 at [23] (per Gleeson CJ); [295]-[300] (per Callinan J); [330]-[336] (per Heydon J).

20 [2.90]

Chapter 2 – Free Speech

not satisfy the second limb of Lange. 84 As a result, the appellant, who had sent letters to the parents of Australian soldiers killed in Afghanistan, denigrating their sons, could not be prosecuted on that charge. It is clear that a very broad range of topics fall within “government and political matters” – perhaps even all “social and economic features of Australian society” 85 – but one cannot assume that any law affecting speech will infringe the freedom. First, the effect of a statute must still be interpreted carefully; in Evans, it was held that the challenged statute would not in fact restrict many of the actions which were proposed as forms of protest against the Pope’s visit for World Youth Day. 86 Heydon J has warned against assuming that, simply because it is common practice to concede that the first limb of Lange has been met, the first limb will always be met. 87 Turning to the second limb, the nature of the infringement – “direct” or “incidental” – will be relevant, with direct infringements being more difficult to justify. 88 On the whole, however, and even where infringement seems to be direct, the recent cases tend to suggest it will be difficult to persuade a court that a law is invalid. 89 The scope of the freedom has been the subject of debate in two important respects. First, the freedom to discuss matters of government and politics may apply in some circumstances to discussion of the judicial branch of government. For example, the freedom may protect speech concerning the dismissal of a judge or magistrate because the process of dismissal operates through the other arms of government. 90 But, as Spigelman CJ indicated in the New South Wales Court of Appeal, “[t]he conduct of courts is not, of itself, a manifestation of any of the provisions relating to representative government upon which the freedom is based”. 91 In the High Court in APLA v Legal Services Commissioner (NSW), McHugh J reinforced this statement when he stressed that the freedom of communication would only apply to matters concerning the judiciary if they “involve, expressly or inferentially, acts or omissions of the legislature or the Executive Government”. 92 These matters may include “discussion of the appointment or removal of judges, the prosecution of offences, the withdrawal of charges, the provision of legal aid and the funding of courts” but would not ordinarily include discussion of the reasoning or the conduct of judges. 93 The court also considered the proposition that there may be an implied freedom of legal communication that derives from Chapter III of the 84

85 86 87 88 89 90 91

92 93

Monis v The Queen (2013) 249 CLR 92 (per French CJ at [67], [71]-[73]; Hayne J at [171], [176]-[184], [185]ff, especially [220]-[222]; Heydon J at [236]; Crennan, Kiefel & Bell JJ dissenting on the grounds that the second limb of Lange was satisfied [344]-[352]. Hogan v Hinch [2011] HCA 4 at [49] (per French CJ). Evans v New South Wales (2008) 168 FCR 576; [2008] FCAFC 130 at [53]-[59] Wotton v Queensland (2012) 246 CLR 1 at [41]. Hogan v Hinch [2011] HCA 4 at [94]ff. Hogan v Hinch [2011] HCA 4; Becker v City of Onkaparinga (2010) 108 SASR 163; [2010] SASCFC 41; McClure v Mayor & Councillors of the City of Stirling [2008] WASC 286. Popovic v Herald & Weekly Times Ltd [2002] VSC 174 at [38]. John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 158 FLR 81; [2000] NSWCA 198 at [83]. The crime of contempt by scandalising the court currently still stands as it was in Gallagher v Durack (1983) 152 CLR 238. It is ripe for reconsideration. APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; 219 ALR 403 at [65] (per McHugh J). APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; 219 ALR 403 at [65] (per McHugh J).

[2.90] 21

Australian Media Law

Constitution (which establishes the federal judicature) and which serves “to protect the integrity and operation of the judicial branch of government”. 94 In the APLA case, which was concerned with restrictions on the ability of lawyers to advertise their services, this found little support. 95 However, where issues are less commercially oriented it might be appropriate to put this argument to the High Court again with a greater prospect of success. 96 Secondly, it has been apparent since Lange that although the freedom derives from the Commonwealth Constitution it may also place a limitation upon the powers of the States to make laws because of the “increasing integration of social, economic and political matters in Australia”. 97 This proposition has been steadily reaffirmed in subsequent litigation. 98 It does not necessarily mean that all state matters will be affected by the implied freedom. 99 However, the great extent of cooperation between State and federal governments prompted the Chief Justice to observe in Hogan v Hinch that it is “difficult to identify subjects … [not] of concern to the national government”. 100 The majority in that case appeared to proceed on the basis that a connection could be presumed and, only if the law was invalid, would it be necessary to ask whether “there is an insufficient connection with any ’federal issue’ to attract the implied freedom”. 101 The decision in Lange represents a landmark in the law and jurisprudence of free speech in Australia. The unanimous joint judgment provided a certainty which had been hitherto unimaginable. The resistance of Dawson J gave way (quite legitimately under the doctrine of stare decisis), while the broader “representative democracy” foundations were tempered. 102 The approach of McHugh J in Australian Capital Television has ultimately prevailed: the implied freedom of political communication derives from the text and structure giving rise to a system of representative and responsible government which is “part of the fabric on which the 94 95

APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; 219 ALR 403 at [343] (per Kirby J). APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; 219 ALR 403 at [30]-[35] (per Gleeson CJ & Heydon J); [240]-[253] (per Gummow J); [384]-[396] (per Hayne J); [472]-[473] (per Callinan J).

96

The argument found some favour in APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; 219 ALR 403 at [72]-[91] (per McHugh); [343]-[350] (per Kirby J). See also N Aroney, “Lost in translation: From political communication to legal communication?” (2005) 28 UNSWLJ 833. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 571-572. In Levy v Victoria (1997) 189 CLR 579 most members of the Court did not find it strictly necessary to answer the question and generally accepted as a presumption the defendant’s concession that some implied freedom would exist either by virtue of the State Constitution or the integration argument: at 609 (per Dawson J); at 610 (per Toohey and Gummow JJ); at 619-620 (per Gaudron J); at 626 (per McHugh J) at 643-644 (per Kirby J); though cf Brennan CJ at 595-596 where the argument was rejected with regard to the Victorian laws in question. Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at [159] (per Kirby J) and [223] (per Hayne J); Coleman v Power (2004) 220 CLR 1; [2004] HCA 39; APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; 219 ALR 403; McClure v Mayor & Councillors of the City of Stirling [2008] WASC 286 at [71]-[95]. For example, John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 158 FLR 81; [2000] NSWCA 198 at [86]-[89] (per Spigelman CJ).

97

98

99 100 101 102

Hogan v Hinch [2011] HCA 4 at [48] (per French CJ). Hogan v Hinch [2011] HCA 4 at [99] (per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). Although the latter proposition may perhaps seem at odds with the statement by Gleeson CJ in Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at [12] that “The freedom of political speech [is] inherent in the Constitution concept of representative democracy”, there seems little question that the Lange reasoning was viewed by the Chief Justice as the basis for the freedom.

22 [2.90]

Chapter 2 – Free Speech

written words of the Constitution are superimposed”. 103 Even if there remains uncertainty in some areas, and even if there have been few laws found to be invalid, the implied freedom is firmly entrenched, unquestionably informs the actions of legislatures, and is a key constitutional freedom upon which the citizenry will continue to rely. 104

The implied freedom and philosophical justifications for free speech [2.100] The nature of the implied freedom is of interest when considered against the background of the philosophical justifications for free speech. Although the implied freedom has been formally derived from the text and structure of the Constitution, democratic justifications are still relevant. 105 This is because there is an explicit focus on government and politics, and the second limb of the Lange test requires that restrictions on speech be reasonably and appropriately adapted to the fundamentally democratic objectives of effecting representative and responsible government. A comparison of the philosophical rationale for why speech should be free versus the operation of the law reveals some distinctly democratic contradictions in the implied freedom. These contradictions turn on how the freedom comprehends the relationships of power between the state, the individual, and corporate or wealthy interests. They are exemplified in the ACTV case. 106 In ACTV, the Commonwealth had sought to restrict the broadcast of paid political advertising on the electronic media during election periods; in its place broadcasters would be required to make broadcast time available free of charge during this period. 107 It did not prohibit news and current affairs, nor talkback radio. The plaintiff television station argued that the provisions impaired the freedom of citizens to discuss public and political affairs by restricting broadcasters’ freedom to broadcast and by restricting the access of political parties and others to express views with respect to public and political affairs on the electronic media. 108 The Commonwealth argued that the legislation was necessary and proportionate in order to ensure the integrity of the political process which was endangered by the high costs of advertising and the accompanying risk of undue influence from donors, and to avoid the 103

104

105

106 107 108

Commonwealth v Kreglinger & Fernau Ltd and Bardsley (1926) 37 CLR 393 at 413 (per Isaacs J), cited in Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 135 (per Mason CJ); 230 (per McHugh J). Callinan J suggested it should be completely revisited: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 331; Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at [285]. Heydon J has made strident remarks to the same effect in Monis v R (2013) 249 CLR 92 at [243]-[251], suggesting that an examination of the foundations of the implied freedom “may reveal that it is a noble and idealistic enterprise which has failed, is failing, and will go on failing”. However, there seems no other judicial appetite for a wholesale review. For a detailed, critical analysis of the relationship between the rationales and the implied freedom see D Meagher, “What is “political communication”? The rationale and scope of the implied freedom of political communication” (2004) 28 MULR 438. Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106. Political Broadcasts and Political Disclosures Act 1991 (Cth). Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 129 (per Mason CJ).

[2.100] 23

Australian Media Law

“trivialising” of political debate through brief advertisements. 109 The legislation was based upon substantial research which examined electoral processes in 19 countries and concluded there was merit in the argument that “the advertising industry’s loss might be democracy’s gain”. 110 The Commonwealth had made laws to improve the health of our democracy. The court declared the legislation invalid because it was an infringement on freedom of speech. The decision has been criticised for its failure to adequately comprehend the role of corporate power in political discussion. 111 Fraser has argued that the case reflects a shallow understanding of freedom: Freedom of communication as understood by the High Court, appears to mean that anyone who wants to communicate a political message should be free to do so, so long as that person has the money to pay for the privilege. … The court shows no apparent concern over the power of such moneyed interests to drown out or distort other voices that lack the financial and organisational resources to make themselves heard. 112

More recently, Unions NSW v New South Wales provides an interesting contrast. The High Court considered the validity of laws limiting political donations. It was held that the laws burdened the freedom of political communication because reduced donations would lessen the power to communicate, and that they were invalid because – in this instance – the “wide, but incomplete” restrictions could not be said to constitute a legitimate end for the purposes of the second limb of Lange. 113 The significance of corporate power and influence – and the appropriate regulatory responses – have been the subject of intense debate in recent years. In the UK the “phone hacking” scandal uncovered in 2011 (by the press, rather than the authorities) has seen arrests, trials, jailing of journalists, acquittals and accusations of inappropriate prosecutions. The News of the World newspaper closed, with media owners, executives and police appearing before Parliamentary committees. The press regulatory body was shut down and replaced. Trials continue at the time of writing. When corporate power impacts on the political process, the traditional opposition between the citizen and the state which has dominated the history and philosophy of free speech may be challenged in ways not traditionally considered by free speech jurisprudence. Constitutionally, the position now is perhaps even more troublesome than it was prior to Lange. As Adrienne Stone has argued so persuasively, the court has by no means extricated 109 110

111

112 113

Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 129-131 (per Mason CJ). Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 161 (per Brennan J) referring to Who pays the piper calls the tune, Report No 4 of the Joint Standing Committee on Electoral Matters (June 1989). Schauer in Sadurski and Campbell (eds), Freedom of Communication (1994); cf Brennan J in Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 159-162 who presents a critical reflection on media power. See also N Douglas, “Freedom of expression under the Australian Constitution” (1993) 16 UNSWLJ 315. A Fraser, “False hopes: Implied rights and popular sovereignty in the Australian Constitution” (1994) 16 Syd LR 213 at 225. Unions NSW v New South Wales (2013) 304 ALR 266 at [38], [44]-[60] (per French CJ, Hayne, Crennan, Kiefel & Bell JJ). Anne Twomey provides an excellent analysis of the case in Unions NSW v State of New South Wales, paper presented at the Gilbert & Tobin Centre for Public Law’s Constitutional Law Conference, 14 Feb 2014, http://bit.ly/1aghYZ0.

24 [2.100]

Chapter 2 – Free Speech

itself from such problems by using a textual foundation for the implied freedom. On the contrary, the absence of theoretical engagement regarding the nature of the freedom means that the court has no basis upon which to make decisions about how the freedom should operate. The question of “the ultimate values that the freedom of political communication ought to serve” remains for determination. 114

Limits and challenges to free speech [2.110] Traditional free speech jurisprudence emphasises the need to prevent the state limiting the speech of its citizens. Schauer argues that it is not necessarily the case that at all times and in all places the state is the only actor that has the power to impact upon communication between citizens. 115 He argues that private power might sometimes be more significant than state power. Private interests, such as multinational corporations and media organisations, might well be able to limit, distort or manipulate communication. This may occur by the exercise of influence or control over information and opinions that are available to the public, the information and opinions that citizens can voice to the public, and the means of communication that citizens can use. In this light, restrictive state regulation may benefit rather than hinder the pursuit of truth and democracy. Schauer does not argue that this is in fact the case at present, or indeed that it has been at any given time. Instead, he presents a more modest argument. We have to ask, he says, what the negative consequences of state regulation will be: will the consequences outweigh the positive effects of intervention? The answer, he says, will be dependent upon the circumstances: There are reasons to believe that free speech principles [preventing government from restrictively regulating speech] will be good at some times and places, but there are fewer reasons to believe that the necessity of them [is] atemporal, ahistorical and a universal imperative. 116

Schauer’s critique sits well with the exercise of media power, but his contentions also open up a range of possibilities that have not been sufficiently (if at all) contemplated by the traditional rationales for free speech. The analytical framework he provides can also be adapted to make a case for a dynamic force of what might be termed “cultural power”, as distinct from state or private power, which might similarly distort communication. First, let us accept that the basis for regulating or protecting speech is not necessarily the citizen-state relationship but, rather, that regulation and protection are context-dependent. Contextual factors may include the nature and extent of private power in any given circumstances. If that is the case then it leaves open other contextual possibilities: might there be significant dynamics of power which are neither state nor private, and which may be more or less benign at different historical 114

A Stone, “The Limits of constitutional text and structure: Standards of review and the freedom of political communication” (1999) 23 MULR 668 at 699. Stone’s critique has become a central theme of debate. See, for example, Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 at [83]ff (per McHugh J); A Stone, “The limits of Constitutional text and structure revisited” (2005) 28 UNSWLJ 842; N Aroney, “Justice McHugh, representative government and the elimination of balancing” (2006) 28 Syd LR 504.

115 116

Schauer in Sadurski and Campbell (eds), Freedom of Communication (1994). Schauer in Sadurski and Campbell (eds), Freedom of Communication (1994), pp 12-13.

[2.110] 25

Australian Media Law

moments, and may at certain times and places be just as important as state or private power? It is the suggestion here that forms of power embedded in culture – for example, race – might demonstrate such possibilities. Secondly, racialised forms of cultural power are more difficult to identify as power because they frequently appear not as contestable claims to power, but as untouchable and fixed claims about identity. The identification and recognition of such forms of power illuminates the manipulation of discourses of liberty, and the ways in which the rhetoric of “free speech” – the celebration of public discourse 117 – can become a justification for the exclusionary exercise of cultural power. How does this occur in Australian politics and society? Over the last two decades race and, more recently, religion have emerged as key dimensions of cultural power in Australian politics and law. From the 1970s until the mid-1990s the country saw an expansion of multiculturalism policies and an increase in cultural diversity. Negative racial dynamics then became increasingly manifest in the years following the election of Ms Pauline Hanson to the Lower House of the Commonwealth Parliament in March 1996. Her maiden speech included, for instance, the claim that “we are in danger of being swamped by Asians”. 118 Race does not only refer to, for instance, Asianness or Aboriginality (which were two key foci of One Nation politics), but also to whiteness – the Anglo-Australian race, which Ms Hanson would have us believe is “truly” Australian. The Prime Minister at the time, Mr Howard, commented: One of the great changes that has come over Australia in the last six months is that people do feel able to speak a little more freely and a little more openly about what they feel. In a sense a pall of censorship on certain issues has been lifted. …I welcome the fact that people can now talk about certain things without living in fear of being branded as a bigot or as a racist. 119

Since 2001, religion has become a similar site for contesting and defining identity. This has been especially apparent where Islamic communities are concerned and, even more so, where there is a conflation of race and religion. 120 The claim to be “Australian” is thus expressed through competing interpretations of national identity; a dynamic form of power emerges in Australian politics and culture through this competition to define identity. 121 These trends have continued to be observable and since 2011 can be very clearly seen in debates surrounding proposals for the repeal of racial vilification laws and opposition to those proposals. The most controversial issues have revolved around proposals to repeal of s 18C of the Racial Discrimination Act 1975 (Cth) which relate to offensive and insulting acts. 122 117 118

Schauer in Sadurski and Campbell (eds), Freedom of Communication (1994), p 5. House of Representatives, Parliamentary Debates (Hansard), 10 September 1996, p 3862.

119

Speech to the Queensland division of the Liberal Party, 22 September 1996. See also Mr Howard’s reflections on that speech where he emphasised that free speech should only be exercised “in a tolerant and moderate fashion”: House of Representatives, Parliamentary Debates (Hansard), 30 October 1996, p 6159. S Poynting, G Noble, P Tabar and J Collins, Bin Laden in the Suburbs: Criminalising the Arab Other (2004). L McNamara, “The things you need: Racial hatred, Pauline Hanson and the limits of the law” (1998) 2 Southern Cross Law Review 92.

120 121 122

Eatock v Bolt [2011] FCA 1103; Freedom of Speech (Repeal of s 18C) Bill 2014 – Exposure Draft, http://www.ag.gov.au/consultations/pages/ConsultationsonamendmentstotheRacialDiscriminationAct1975.aspx; K Magarey, The Attorney-General’s suggested changes to the Racial Discrimination Act 1975 Parliamentary Library Research Paper, 5 June 2014. For examples of the contrast in views see the Replacement Explanatory Memorandum to the Racial Discrimination Amendment Bill 2014, tabled by http://

26 [2.110]

Chapter 2 – Free Speech

Schauer’s critique of private power helps us think about how free speech functions in this environment. While his concern is that traditional free speech principles do not take account of the way private power affects inequalities and bias among participants in communication, his analysis of the assumptions of equality and rationality can also be applied to cultural power. Racialised politics works on the basis that there is no equality in the communicative process and that participants will not “evaluate with care and sympathy the utterances of all others”. 123 It works precisely on the notion that some participants can be excluded not merely through representation in state actors or institutional bodies of private power (typically the media), but in day-to-day life through the experience of culture. Racialised politics rests on the marginalisation of certain racial identities independently of the actions of state power or institutional private power. Similarly, an assumption of rationality is not applicable. On the contrary, racialised politics works on the basis that there is not a rationality among communicators. Rather than knowing truth when we see it, the manipulation of racial power and national identity relies on the proposition that people will accept false propositions when they are said more often or more convincingly. 124 It presumes that given our biases and prior beliefs, a proposition may continue to be believed regardless of whether it is proved true or not. 125 Schauer’s challenge to the assumption’s applicability in a world of private power is at least as applicable with respect to racial power. This is not to say that all discussions of race, religion, immigration or vilification laws are tainted by manipulation of assumptions and power. On the contrary, there is much discussion of these issues, on all side of the debates, which is thoughtful, inclusive and very insightful. It is to say, though, that any presumption that state power is necessarily the most dangerous form of power is clearly troubling. Moreover, it may not be helpful to think of private power as the only challenger. Cultural power appears to be distinct from state and private power, being interdependent with them, rather than dependent upon them. The power of speech and the deployment of free speech rhetoric should not be underestimated, especially in their capacity to construct identity that includes some and excludes others. Since the first edition of this book was published, issues of race have been paramount in Australia. The government won re-election in 2001 on a platform of border protection in which asylum seekers were not to be allowed on to Australian shores to claim refugee status as the Prime Minister repeatedly declared, “We decide who comes to this country and the circumstances in which they come”. 126 It is the terms “we” and “they” that are

123 124 125

126

parlinfo.aph.gov.au/parlInfo/download/legislation/ems/s978_ems_80f3b48d-026c-4d0f-b2ef601f89584a93/upload_pdf/14211repem.pdf and the range of publications about s 18C on The Conversation http://theconversation.com/uk/topics/section-18c. See further [9.30], [9.60]-[9.80], [9.290]-[9.350].. See note 37 and the accompanying text. Schauer in Sadurski and Campbell (eds), Freedom of Communication (1994), p 8. Schauer in Sadurski and Campbell (eds), Freedom of Communication (1994), p 8. For instance, at the launch of the One Nation immigration policy, a journalist pointed out that the One Nation immigration figures were incorrect; the criticism was ignored. There was simply no need for the figure to be correct. See Sydney Morning Herald (3 July 1998), p 1. D Marr and M Wilkinson, Dark Victory (2003).

[2.110] 27

Australian Media Law

operative. Our sense of ourselves – and of others – relies, in David Stannard’s words, on “the availability of a deep well of national and cultural consciousness that consigns whole categories of people to the distant outback of humanity”. 127 Reports on immigration detention provide points of reflection against which the movement from speech to policy might be considered. 128 These cultural and political tides have ebbed from time to time, but race, religion and national identity are regularly conflated and confused in public discussion about citizenship, discrimination, immigration and Australian values. 129 Conceptualising speech and power in cultural terms has significant implications for thinking about both the substance of free speech debates and the legal regulation of speech. One of the most interesting recent contributions to these debates has been made by Katherine Gelber in her book, Speech Matters. 130 She is especially concerned with the democratic importance of free speech, though notably she does not argue for anything approaching an absolutist view of free speech. Exploring six different areas where, she argues, widely held commitments to free speech principles “fracture” easily – uses of the Australian flag; terrorism and sedition; hate speech; public protest; the actions of corporations; and artistic expression – Gelber asks, “What is it in Australian political and legal culture that allows … violations of free speech to occur without public uproar?” It is, significantly, in culture – rather than law – that free speech commitments are to be understood and nurtured: The problem of free speech restriction and limitation in this country are too enormous, too multifaceted and too complicated to be resolved by regulatory or legal responses alone. The only meaningful way this can be addressed is by changing political culture [so that the public and the regulatory authorities begin to nurture and favour freedom of speech].

Freedom of speech is not as simple as former Prime Minister Howard’s “pall of censorship” phrase suggests, and it is clearly multidimensional, but this does not mean traditional liberal free speech principles are to be easily dismissed. For example, an array of counter-terrorism laws have restrictive implications for the freedom of citizens to speak and for the ability of the media to report on matters of public interest, and the traditional state-citizen opposition is a useful way to consider the significance of these laws. 131 However, the context in which free 127 128

D Stannard, American Holocaust: Columbus and the Conquest of the New World (1992), p 254. Australian Human Rights Commission, The Forgotten Children: National Inquiry into Children in Immigration Detention, 2014; P Moss, Review into recent allegations relating to conditions and circumstances at the Regional Processing Centre in Nauru, Dept of Immigration and Border Protection, 6 February 2015, https://www.immi.gov.au/about/dept-info/nauru.htm.

129

Human Rights and Equal Opportunity Commission, Isma- Listen: National Consultations on Eliminating Prejudice Against Arab and Muslim Australians (2004); Human Rights and Equal Opportunity Commission, Report to the Department of Immigration and Citizenship on the Unlocking Doors Project (2007); Australian Human Rights Commission, In Our Own Words (2010). K Gelber, Speech Matters: Getting Free Speech Right (2011) Criminal Code (Cth), ss 80.2 – 80.3; K Gelber, “When are restrictions on speech justified in the war on terror?” in A Lynch, E MacDonald and G Williams, Law & Liberty in the War on Terror (2007), 138-146; A Lynch and G Williams, What Price Security? (2007); L McNamara, “Closure, caution and the question of chilling: How have Australian counter-terrorism laws affected the media?” (2009) 14 MALR 1; F Moorhouse, “The writer in a time of terror” (2006-07) (Summer) 14 Griffith Review 11.The effects of counter-terrorism laws on speech have of course been the subject of extensive discussion in Europe and the US. See for example,

130 131

28 [2.110]

Chapter 2 – Free Speech

speech arguments appear needs to be closely examined before agreeing to the traditional analysis at any given time or place. 132 For Schauer: It is only by considering the relationship between free speech and private power, and only by considering speech as both a manifestation of power and a process that is influenced by its distribution, that we can fully consider all of the consequences involved. 133

To this it may be added that other aspects of power may, at certain times and places, be more significant than liberal free speech discourse can acknowledge. In the cultural construction of meaning with respect to identity and race, there is a construction of liberal discourse itself through the appropriation of language, through the very use of “free speech” as a tool of cultural, political and legal rhetoric. The argument here is not that the law be an instrument of regulation in restricting political discussion, but that to understand free speech (and its limits) in a legal context, it is essential to understand how speech might be manipulated in ways a narrow legal discourse cannot comprehend. If there is any one singular phenomenon or trend that warrants attention for its effects on free speech, it is the way that technology has affected how we communicate and the reach of our voices, as well as the ability of states and corporations to discover what we are saying even when we intend it to be private. Throughout this book there are, of course, cases and statutes in every area that grapple with technological developments. The jurisprudence of free speech, however, has tended to move more slowly, with its traditional rationales providing the anchor of principle against which the law might evolve. But free speech scholarship is moving. Perhaps the most significant work, and one likely to become a benchmark in thinking about the ways that speech now functions, is Monroe Price’s recently published Free Expression, Globalism and the New Strategic Communication. 134 For those casting their eyes to the future, it is a superb study of how freedom of expression principles can be reconceptualised, reinforced and rethought in an age of complex power relationships – state, corporate, individual and cultural power – and global communications.

Conclusion [2.120] This chapter has sought to demonstrate that freedom of speech is a complex concept with a long and rich history. Its continual regeneration is the product of particular combinations of political, legal, cultural and philosophical conditions. While free speech arguments underpin much regulation of the media, the particularities too often remain unexplored. If democracy and liberty are to be seriously pursued and protected by the law – and by the media – it is essential to consider in depth the contingent and contestable nature of free speech, subjecting it to scrutiny whenever it appears.

132 133 134

I Cram, Terror and the War on Dissent: Freedom of Expression in the Age of Al-Qaeda (2009); N Strossen, “The regulation of extremist speech in the era of mass digital communications: Is Brandenburg tolerance obsolete in the terrorist era?” (2008-09) 36 Pepperdine Law Review 361. Schauer in Sadurski and Campbell (eds), Freedom of Communication (1994), p 15. Schauer in Sadurski and Campbell (eds), Freedom of Communication (1994), p 15. M Price, Free Expression, Globalism and the New Strategic Communication (Cambridge University Press, 2015).

[2.120] 29

Australian Media Law

There are, however, places that the legal regulation of speech cannot – and should not – reach. What is meant by free speech in a political sense in Australia is becoming increasingly visible as an expression of power, be it state, private or cultural power. If our liberal, or Enlightenment, or post-Enlightenment or postmodern search is for autonomy, truth or democracy, or – in one form or another – a pursuit of the good life, then it may be useful to consider the extent to which power is mediated through the malleable, yet almost axiomatically legitimate discourse of free speech. To ask difficult questions about the use and abuse of free speech principles is not in any way to lessen a commitment to speech or liberty. To ask these types of questions is, in Peter Murphy’s words, to make our judgments “less black and white, more subtle, more rich, more attentive to and ready to take account of fundamental values different from those to which our primary allegiance is given”. 135 It is to challenge the roles of the law and the media in the pursuit of liberty and to examine more closely just what “liberty” might mean.

135

Murphy (1991) 30 Thesis Eleven 117 at 123.

30 [2.120]

Defamation

3

[3.10] INTRODUCTION ........................................................................................ 33 [3.20] CIVIL DEFAMATION ................................................................................... 33 [3.20] The Australian context ............................................................................... 33 [3.20] [3.30] [3.40]

Reputation, truth and falsity ................................................ Uniform defamation laws .................................................... Applicable law ..................................................................... [3.70] Libel and slander ........................................................................................

33 34 36 37

[3.80] DEFAMATORY MATTER .............................................................................. 38 [3.80] Interpreting the imputations .................................................................... 38 [3.90] [3.100] [3.130]

[3.140]

Natural and ordinary meaning ............................................ 38 False innuendo .................................................................... 39 True innuendo ..................................................................... 41 Defamatory meaning .............................................................................. 42 [3.140] Test ..................................................................................... 42 [3.170] Relevant standard ................................................................ 43 [3.200] Statements made in jest ...................................................... 46 [3.210] Vulgar abuse ....................................................................... 47 [3.220] Context ............................................................................... 47 [3.240] Bane and antidote ............................................................... 49 Intention and motive .............................................................................. 52 Judge and jury .......................................................................................... 52 Single cause of action ............................................................................. 54

[3.290] [3.300] [3.310] [3.320] REASONABLY REFERABLE TO THE PLAINTIFF ........................................ 54 [3.320] Test ............................................................................................................ 54 [3.350] Time of reference ..................................................................................... 56 [3.380] Intention ................................................................................................... 57 [3.410] Defamation of a group ............................................................................ 58 [3.440] PUBLICATION ........................................................................................... 59 [3.450] Republication ........................................................................................... 60 [3.480] Place of publication ................................................................................. 62 [3.490] PARTIES ..................................................................................................... 62 [3.490] Who may sue ........................................................................................... 62 [3.490] [3.500] [3.510] [3.520] [3.530] [3.540]

Living persons ..................................................................... Bankrupts ............................................................................ Partnerships ........................................................................ Corporations ....................................................................... Trade unions and unincorporated associations .................... Elected bodies ..................................................................... [3.550] Who may be liable ................................................................................... [3.550] Living persons ..................................................................... [3.560] Contribution to publication .................................................

62 63 63 63 64 64 65 65 65

[3.570] RESOLUTION OF DISPUTES WITHOUT LITIGATION ............................ 68 [3.570] Introduction ............................................................................................. 68 [3.580] Offer to make amends ............................................................................ 69 31

Australian Media Law

[3.630] Apologies .................................................................................................. [3.640] DEFENCES ................................................................................................ [3.640] Introduction ............................................................................................. [3.650] Justification ...............................................................................................

74

74 74 74 [3.660] Motive ................................................................................ 75 [3.670] All imputations to be justified .............................................. 75 [3.680] Publications containing both fact and opinion ..................... 77 [3.690] The Polly Peck defence ........................................................ 77 [3.710] Contextual truth ...................................................................................... 81 [3.720] Absolute privilege .................................................................................... 83 [3.730] Proceedings of parliamentary bodies ................................... 84 [3.740] Proceedings of courts or tribunals ....................................... 87 [3.750] Internal executive communications ..................................... 89 [3.760] Communications between spouses ...................................... 90 [3.770] Whistleblowers .................................................................... 90 [3.780] Qualified privilege .................................................................................... 90 [3.790] Publication of public documents ......................................... 90 [3.800] Fair report of proceedings of public concern ....................... 91 [3.860] Common law qualified privilege: interest or legal, moral or social duty and reciprocal interest ......................... 96 [3.970] Extension of qualified privilege in cases of political communication .................................................... 103 [3.1020] Common law public interest privilege after Reynolds and Jameel ........................................................................ 110 [3.1050] Statutory qualified privilege for provision of information .... 113 [3.1100] The relationship between the uniform defamation legislation and the extended common law qualified privilege ............................................................................ 117 [3.1110] Honest opinion and fair comment ..................................................... 118 [3.1120] Fair comment .................................................................... 119 [3.1180] Honest opinion ................................................................. 125 [3.1230] Relationship between fair comment and honest opinion .... 127 [3.1240] Relationship between fair comment/honest opinion, justification and privilege ................................................... 127 [3.1250] Innocent dissemination ....................................................................... 128 [3.1280] Triviality ................................................................................................ 130 [3.1290] Consent ................................................................................................ 132

[3.1320] REMEDIES ............................................................................................. 133 [3.1320] Damages .............................................................................................. 133 [3.1320] [3.1330] [3.1340] [3.1350] [3.1360]

Purpose of damages .......................................................... Calculation of damages ..................................................... Aggravated damages ........................................................ Exemplary or punitive damages ......................................... Mitigation ......................................................................... [3.1370] Injunction ............................................................................................. [3.1380] Costs in proceedings ........................................................................... [3.1390] Mediation or other alternative dispute resolution ...........................

133 134 135 136 136 138 141 141

[3.1400] OTHER CAUSES OF ACTION .............................................................. 142 [3.1410] Misleading or deceptive conduct ...................................................... 142 [3.1410] 32

Cause of action ................................................................. 142

Chapter 3 – Defamation [3.1420]

Exemption ......................................................................... 143 146

[3.1460] Injurious falsehood .............................................................................. [3.1470] CRIMINAL DEFAMATION .................................................................... [3.1470] Common law offence ......................................................................... [3.1480] Statutory modifications and additions to the common law intent or knowledge ......................................................................... [3.1490] [3.1500] [3.1510] [3.1520] [3.1530] [3.1540] [3.1550]

Publication ........................................................................ Slander .............................................................................. Defamation of the dead .................................................... Defences ........................................................................... Defences for publishers ..................................................... Penalties ............................................................................ Private prosecutions ..........................................................

148 148 149 150 150 151 151 151 152 152

Introduction [3.10] Defamation occurs where one person communicates, by words, photographs, video, illustrations or other means, material which has the effect or tendency of damaging the reputation of another. It involves the publication of matter which is deemed to be defamatory and which is reasonably referable to the plaintiff. The object of the law of defamation is to strike a balance between the protection of reputation and the promotion of freedom of speech. In this connection, freedom of speech and the facilitation of the public’s interest in a free flow of information and in the discovery of the truth are effected by a variety of defences to the action for defamation. The main focus of this chapter is an examination of civil liability for defamation. In addition, this chapter examines the interface between defamation and two associated topics: prohibition of misleading and deceptive conduct under consumer protection legislation 1 and the tort of injurious falsehood, which concerns false statements made concerning the property, goods or services of a person. 2 In certain circumstances there may also be criminal liability for defamation. This chapter concludes with a discussion of this liability. 3

Civil defamation The Australian context Reputation, truth and falsity [3.20] Contrary to what may be popularly thought, in Australia there is no necessary connection between reputation and truth. 4 The reason for this is that the opinions which collectively constitute a person’s reputation may or may not reflect the plaintiff’s real character 1 2

See [3.1410]-[3.1450]. See [3.1460].

3 4

See [3.1470]-[3.1550]. See Aldridge v John Fairfax & Sons Ltd [1984] 2 NSWLR 544 at 551 per Hunt J.

[3.20] 33

Australian Media Law

and may indeed be based upon matter which is true or untrue. 5 A successful action for defamation does not require that the plaintiff prove that the publication is false. 6 The truth or falsity of the published matter is only relevant if a party puts it in issue. 7 The plaintiff might raise falsity as a matter which aggravates damages. 8 Alternatively, a defendant can raise truth by pleading justification as a defence 9

Uniform defamation laws [3.30] Australia adopted uniform laws of defamation in 2006. 10 Prior to that time defamation in Australia was a morass of differing regimes among the States and Territories. The laws were codified in Queensland and Tasmania, Victoria and South Australia applied the common law, New South Wales relied upon the common law for the cause of action and statute for its defences and the other jurisdictions utilised a mixture of the common law and statute for their regimes. There were in effect eight regimes in the eight jurisdictions. Such a situation was extremely problematic in an age of national media. There was also widespread concern that traditional curial resolution of defamation claims was an avenue largely available only to those who could afford it and, since it occurred months or even years after the publication of the defamatory matter when memories of the publication may have faded, was an ineffective means of vindicating reputation. Reform was on the agenda of the Standing Committee of Attorneys-General for well over 20 years without resolution. 11 That did not stop individual jurisdictions introducing reforms, typically to achieve the same objectives, viz: to not only ensure unreasonable limits were not placed on publications and discussions of matters of public interest but to provide effective and appropriate remedies while promoting speedy and non-litigious methods of resolving disputes and avoiding 5

New South Wales Law Reform Commission, Defamation, Report No 75 (1995), p 18.

6

In a 1996 Bill to reform defamation in New South Wales, proof of falsity was to be an essential ingredient of the cause of the action. The Bill was allowed to lapse after lobbying by interested parties. Age Co Ltd v Elliott (2006) 14 VR 375 at [16]. See [3.1340].

7 8 9 10

11

See [3.650]. See Civil Laws (Wrongs) Act 2002 (ACT), Ch 9; Defamation Act 2005 (NSW); Defamation Act (NT); Defamation Act 2005 (Qld); Defamation Act 2005 (SA); Defamation Act 2005 (Tas); Defamation Act 2005 (Vic); Defamation Act 2005 (WA). Strictly speaking, it is more accurate to describe the current position as “almost uniform”. Some differences between the jurisdictions remain. Perhaps the most significant relates to whether the option to have the trial heard by jury is available (see further [3.80]). Despite these differences, the term “uniform defamation legislation” is used throughout this chapter. Specific section numbering used by the majority of jurisdictions will be referred to as the “uniform defamation legislation” or “DA” sections. Where different section numbering is used (in the Northern Territory due to the removal of provisions concerning juries and a consequential renumbering of the sections and in ACT due to defamation laws being included in a more general statute concerning civil wrongs), this will be noted. It seems that an enduring point of disagreement which prevented the adoption of uniform laws was the defence of justification: four jurisdictions (Victoria, South Australia, Western Australia and the Northern Territory) applied the common law meaning of truth alone whilst four jurisdictions required truth and public benefit (Queensland, Tasmania and the Australian Capital Territory) or truth and public interest (New South Wales). Critics of the latter approach saw it as de facto protection for personal privacy (see [8.450]) which, if considered desirable, should have been addressed head-on.

34 [3.30]

Chapter 3 – Defamation

protracted litigation. 12 Reforms were implemented in New South Wales and the Australian Capital Territory, which, inter alia introduced the provision of a pre-trial settlement process based on the publisher making an offer to make amends. Matters changed in 2005 when Philip Ruddock was appointed Attorney-General of the Commonwealth. He proposed addressing the impasse in SCAG by enacting federal defamation legislation, relying upon inter alia the Commonwealth’s constitutional power to make laws concerning broadcasting. Draft laws were promulgated, which sought to resolve points of dispute between the States and Territories but also introduced new features, such as an attempt to define with precision what qualified as “defamatory”, and allowing actions for the publication of defamatory material concerning dead persons. 13 Naturally, since not all defamation relates to national or interstate media publications, the effect of such legislation would have added a ninth regime to the Australian landscape. Not long after, and before the Commonwealth acted, SCAG agreed upon a uniform regime which has now been enacted in all jurisdictions. 14 The uniform regime adopts a similar approach to that previously followed in New South Wales by relying on the common law for the laws relevant to establishing the cause of action whilst providing for statutory defences. 15 In addition, common law defences have been expressly preserved. 16 Since the common law governs the cause of action and some defences, Australian courts may continue to make reference to English case authorities in appropriate cases. However, the law in the United Kingdom has now changed significantly with the enactment of the Defamation Act 2013 (UK). This statute imposes a threshold requirement that a statement will not be regarded as defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant. This statute also, inter alia, enacts new defences of truth, 17 honest opinion 18 and publication on matter of public interest 19 whilst repealing the common law defences of justification, fair comment and the Reynolds defence. 20 In a reflection of modern times, there are new provisions concerning actions the defamation against operators of websites, 21 and a new form of privilege recognised for statements made in peer-reviewed scientific or academic journals. 12 13

15

Cf, for example, Defamation Act 1974 (NSW), s 3. Attorney-General’s Department, Revised Outline of a Possible National Defamation Law (July 2004), pp 10-13. Subsequently the Tasmanian Government contemplated a break from the uniform regime by amending its statute to once again allow corporations with more than 10 employees to sue for defamation (see [3.520]). This would have enabled companies in the timber industry to take action against those opposing their operations. However, these plans were abandoned in the face of concerns over plaintiffs forum shopping, with corporate plaintiffs seeking to file suits in Tasmanian courts, and a lack of support from the other States and Territories: see “Tasmania ditches defamation law change after public backlash” ABC News 5 February 2015 http://www.abc.net.au/news/2015-02-05/tasmania-ditches-defamation-law-changes-after-public-backlash/ 6071438 DA: s 6; ACT: s 118; NT: s 5.

16

DA: s 24; ACT: s 134; NT: s 21; SA: s 22.

17

See [3.630].

18

See [3.1180].

19 20

See [3.1040]. See [3.1040].

21

See [3.560].

14

[3.30] 35

Australian Media Law

Applicable law [3.40] The tort of defamation is committed not when the publication is made but rather when and where it is received because that is where the damage to reputation occurs. 22 The difficulties created by the previous inconsistencies in the law were accentuated by the rule that, while the plaintiff was entitled to recover in respect of damage to reputation for the entire publication, including publications in different jurisdictions subject to different laws, only one action could be brought. 23 Moreover, a consequence could be that exactly the same matter published simultaneously in more than one jurisdiction could be the basis for recovery of damages in one or more but not in another or other jurisdictions. 24 This led to plaintiffs “forum shopping”, that is, commencing their actions in the jurisdiction with laws most favourable to their claims. This has now been addressed by the uniform laws, which provide that if there is a multiple publication of matter in more than one jurisdiction the substantive law applicable in the jurisdiction “with which the harm occasioned by the publication as a whole has its closest connection” must be applied in that jurisdiction to determine each cause of action. In order to decide which jurisdiction constitutes that which has the closest connection with the harm occasioned, the following factors are taken into account: • the place at the time of publication where the plaintiff was ordinarily resident, or in the case of a corporation 25 the place where it has its principal place of business at that time; • the extent of publication in each relevant jurisdiction; • the extent of harm sustained by the plaintiff in each jurisdiction; and, • any other matter considered relevant. 26 The provision is based on the notion that there are no longer different defamation laws in the different Australian jurisdictions. 27 This choice of law provision would apply equally to publications on the internet which are read in different Australian jurisdictions. The internet knows no boundaries and has the capacity to reach easily and quickly an Australia-wide, and indeed worldwide, audience.

22

23

Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [44]. Thus it is insufficient for the evidence to show that the defamatory matter was posted on a website – there must be evidence that the matter was downloaded: see, for example, Bleyer v Google Inc LLC (2014) 311 ALR 529 (NSWSC). Maple v David Syme & Co Ltd [1975] 1 NSWLR 97; Meckiff v Simpson [1968] VR 62.

24 25

Gorton v Australian Broadcasting Commission (1973) 22 FLR 181 at 196. See [3.520].

26 27

DA: s 11(3); ACT: s 123(3); NT: s 10(3). See, however, S Rares, “Defamation and media law update 2006: Uniform national laws and the Federal Court of Australia” (2006) 28 ABR 1.

36 [3.40]

Chapter 3 – Defamation

Example

Dow Jones & Company Inc v Gutnick [3.50] Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 The defendant operated a news subscription service on the World Wide Web. Material for the service was uploaded onto computer servers in New Jersey. Material, which the plaintiff claimed to be defamatory of him, was then downloaded in Victoria. The plaintiff commenced proceedings in Victoria. The defendant sought to strike out the action on the grounds that Australian law should, like that applied in the United States, 28 recognise that in the case of the internet, the relevant publication was when the material was first made available by being uploaded in New Jersey. New Jersey defamation laws were more favourable to defendants than the laws of Victoria. The High Court held that the general rule was that defamation occurs at the place where the material is made available in comprehensive form. In the case of the internet this occurred when material was downloaded and read via a web browser. It was in the place where the material was downloaded that any damage to reputation may occur. The action was therefore validly commenced in Victoria.

[3.60] Although the decision is a logical one when viewed from basic principles, 29 its implications for the use of the internet are potentially far-reaching. In effect, any person in the world who places material on the internet which may be viewed in Australia, does so subject to not only the local laws of the jurisdiction in which he or she is in, but also the potentially different uniform defamation regime in Australia. Similarly material uploaded in Australia that complies with Australian law might still fall foul of different laws in a foreign country. This will be particularly significant where the foreign laws are more advantageous to a plaintiff identified in the publication than Australian law.

Libel and slander [3.70] The common law recognises two forms of defamation: libel and slander. The difference between the two forms depends upon the manner in which the defamatory matter is expressed or conveyed. “Libel” describes defamatory matter in permanent form, such as writing or pictures while “slander” describes defamatory matter in transient form, such as the spoken word. 30 The significance of the distinction is that in a libel action the plaintiff does not have to prove that he or she has suffered damage, whereas he or she must do so in an action for slander, unless the case falls within one of the exceptions in which slander is actionable 28

See, for example, Firth v State of New York 775 NE 2d 463 (NY 2002) (“one publication” rule – only first posting of defamatory matter upon an internet site is actionable).

29

A similar approach is taken in the UK: see Loutchansky v Times Newspapers Ltd (No 2) [2002] QB 783 (CA) (leave to appeal to House of Lords refused [2002] 1 WLR 1552). Monson v Tussauds Ltd [1894] 1 QB 671 at 692 per Lobes LJ; Wainer v Rippon [1980] VR 129 at 134.

30

[3.70] 37

Australian Media Law

per se. 31 The distinction between libel and slander has been abolished by the uniform defamation legislation. 32 Accordingly, all defamatory publications, whether in permanent or transient form are actionable without proof of actual damage.

Defamatory matter Interpreting the imputations [3.80] The first step in the defamation equation is to identify the distinct imputations or messages that are conveyed by the publication. This question is judged from the perspective of an ordinary, reasonable member of the community who sees, hears or reads the publication. Such a person is taken to be of fair, average intelligence, and as being “neither perverse, nor morbid or suspicious of mind, nor avid for scandal”. This viewer, listener or reader does not live in an ivory tower. 33 With this in mind, there are three ways in which a plaintiff may show that a publication conveys an imputation: the natural and ordinary meaning and the so-called “false” and “true” innuendoes.

Natural and ordinary meaning [3.90] The natural and ordinary meaning of material embraces its literal meaning, that is the meaning that an ordinary person would assign to the material aided only by general knowledge. 34 Accordingly, a publication that alleges that a businessman cheats his customers conveys an imputation in its literal meaning. When the natural and ordinary meaning of the words is clear it is generally unnecessary for the plaintiff to plead the meaning that is relied upon. 35

31

That is, where the publication imputes that the plaintiff is guilty of, or has been convicted, of a crime punishable by imprisonment, disparages the plaintiff in his or her office, profession, calling, trade or business; imputes that the plaintiff has a venereal disease; or imputes unchastity or lesbianism in a female plaintiff: see RP Balkin and JLR Davis, Law of Torts (3rd ed, 2002), pp 552-554.

32 33

DA: s 7; ACT: s 119; NT: s 6. Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; 79 ALJR 1716 at [12]; Farquhar v Bottom [1980] 2 NSWLR 380 at 385.

34 35

Jones v Skelton [1963] SR (NSW) 644; [1963] 1 WLR 1362; [1963] 3 All ER 952 at 1370 (WLR). Prichard v Krantz (1984) 37 SASR 379 at 384.

38 [3.80]

Chapter 3 – Defamation

“False” innuendo [3.100] The natural and ordinary meaning of words also embraces an inferred or indirect meaning which an ordinary, reasonable person would draw from the material. 36 This “false” innuendo is a meaning which, though not expressed in the material, may be inferred or implied 37 by an ordinary person “reading between the lines in light of his or her general knowledge and experience”. 38 Example

Random House Australia Pty Ltd v Abbott [3.110] Random House Australia Pty Ltd v Abbott (1999) 167 ALR 224 A book published by the defendant contained a statement that two prominent Liberal politicians were members of the Right Wing of the Labor Party while at university until they both had sexual liaisons with the same woman, who later became the wife of one of them, and who inducted them into the Liberal Party. The Full Court of the Federal Court held that the natural and ordinary meaning of the publication conveyed by implication or inference several imputations about both the men and their wives. These included, in relation to the men, that their political commitment was so shallow that they would abandon an allegiance on the basis of a sexual liaison. In relation to the women, there was an inference of not only pre-marital sex but also a willingness to exploit a sexual liaison. There was, in addition, an imputation conveyed that one of them was a “political manipulator” by using sex to recruit party members.

[3.120] It has been recognised that some words do not have the precise meaning and that ordinary men and women may have different perceptions of the words used. 39 The ordinary, reasonable reader/listener/viewer is a lay person not a lawyer and his or her capacity for drawing implications is greater than that of a lawyer (the lawyer being restricted to accepted legal definitions only). 40 As the High Court has observed: “An article which gives otherwise 36

Jones v Skelton [1963] SR (NSW) 644; [1963] 1 WLR 1362; [1963] 3 All ER 952 at 1370 (WLR). For this reason false innuendo is sometimes merely treated as an aspect of the natural and ordinary meaning rather than as a separate category of imputation.

37

An “implication” is something which the reader/listener/viewer understands the publisher as having intended to say, while an “inference” is something the reader/listener/viewer adds to what is stated by the publisher: it may reasonably or even irresistibly follow from what has been expressly or impliedly said, but is nevertheless a conclusion drawn by the reader/listener/viewer: see Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 167 per Hunt CJ in CL. Lewis v Daily Telegraph Ltd [1964] AC 234 at 258; Lang v Australian Consolidated Press Ltd [1970] 2 NSWR 408 at 412. They are described as “false” because they do not in fact depend upon the reader/listener/viewer knowing particular extrinsic facts, as required for “true” innuendoes: Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 579 per Kirby J. Lewis v Daily Telegraph Ltd [1964] AC 234 at 258-259. Middle East Airlines Airliban SAL v Sungravure Pty Ltd [1974] 1 NSWLR 323 at 340; Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245.

38

39 40

[3.120] 39

Australian Media Law

irrelevant prominence to the existence of smoke may be found to suggest the existence of fire.” 41 Thus, for example, in a case where a plaintiff was referred to as a “murder suspect” it was held that the noun “suspect” was not a word of precise meaning and was capable of conveying a number of meanings according to its context. These include suspicion on grounds ranging from mere gossip through a belief on slight or insufficient proof or evidence to a belief reasonably or strongly grounded on evidence. Accordingly, the word “suspect” is capable of a range of interpretations. It is then a question of fact whether in the circumstances it necessarily conveys a particular meaning. Accordingly a court should not strike out “believed on reasonable grounds to have murdered” as a possible interpretation of “murder suspect” since that would be equivalent to applying a lawyer’s sense of discernment rather than that of an ordinary, reasonable man or woman. 42 It has also been held by the New South Wales Court of Appeal that the “walk in” technique may support an imputation which otherwise would not be conveyed since it may give the implication that the target has been accused or “caught in the act” of some indiscretion. 43 This could be reinforced by reference to the story as the culmination of successful investigative journalism. 44 However, the publisher is not held responsible where an inference is drawn from an inference, that is when the reader/listener/viewer draws an inference which is available and then uses that inference as a basis (at least in part) from which a further inference is drawn. It is considered unreasonable to hold the publisher liable for other than the first inference drawn. 45 For example, where a plaintiff is reported as having been charged with an offence (and no more), a first inference available from the statement (for which the publisher is held responsible) would be that police believed the plaintiff to be guilty or had grounds for charging the plaintiff. A second inference, which is based at least in part upon the first inference (and for which the publisher is not held responsible) would be that the plaintiff is in fact guilty of the offence charged. 46 Normally, a plaintiff need not specify any false innuendoes if the meaning is clear. However, where the plaintiff pleads that the published material has a particular meaning, it seems that he or she will be bound by the meanings so alleged. The plaintiff will only be able to depart from those pleaded meanings if such a departure will not prejudice, embarrass or unfairly disadvantage the defendant. Departure normally would not be permitted if the unpleaded meaning is substantially different from that pleaded. Where the words are incapable of bearing the pleaded meanings and departure from those pleadings would prejudice, 41 42 43

Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; 79 ALJR 1716 at [14]. Channel Seven Adelaide Pty Ltd v S, DJ (2006) 94 SASR 296. TCN Channel Nine Pty Ltd v Antoniadis (unreported, 1 October 1998).

44 45

TCN Channel Nine Pty Ltd v Antoniadis (unreported, 1 October 1998). Lewis v Daily Telegraph Ltd [1964] AC 234; Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 167. Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 300; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 166. See also the discussion in A Kenyon, Defamation: Comparative Law and Practice (2006), pp 39-42.

46

40 [3.120]

Chapter 3 – Defamation

embarrass or unfairly disadvantage the defendant, the plaintiff will be unable to fall back on the natural and ordinary meaning of the words. 47

“True” innuendo [3.130] Material may also be considered defamatory when considered in the context of extrinsic facts known only to some people. In this case, the “true” innuendo may colour an otherwise apparently entirely innocent statement: the published material itself is incapable of giving rise to a defamatory meaning but does so when considered in conjunction with the extrinsic facts. 48 Accordingly, it might be said that to say of a man that he was seen entering a brothel may impute that he is a frequenter of brothels on an ordinary and natural meaning of the words and therefore be defamatory. By contrast to say of a man that he was seen entering premises identified only by the address could convey the same imputation by way of true innuendo when that statement is published to persons who know that the premises at that address were a brothel. 49 Where a slang expression is not within the understanding of the general community, so as to be conveyed by the natural and ordinary meaning of the words, its meaning to those who know it will need to be pleaded as true innuendo. 50 Where a statement is alleged to be defamatory according to the attitude of a section of the community, such as a particular religious or ethnic group, then it is necessary to plead that sectional attitude as an extrinsic fact or circumstance. 51 The plaintiff need only show that the additional facts were known to one or more persons who also encountered the defamatory material. 52 It is not necessary for the plaintiff to demonstrate that those persons understood the words in a defamatory sense or believed the imputation. 53 The additional facts must be extrinsic in the sense that they are independent of the reported material. Where the facts said to colour the otherwise innocent statements appear in other parts of the same publication, the issue will be one of the natural and ordinary meaning of the publication rather than true innuendo. 54

47 48 49

50

51 52 53 54

Prichard v Krantz (1984) 37 SASR 379 at 386; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 534 per Brennan CJ and McHugh J. Mawe v Pigott (1869) Ir 4 CL 54 at 59. Lewis v Daily Telegraph Ltd [1964] AC 234 at 278. Cf Kirby J in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 579 altered this example to a plaintiff visiting an address known by others to be a “place of criminal activity”, perhaps in recognition of the legalisation of brothels in some jurisdictions. See, for example, O’Malley v Elder (1876) 2 VLR (L) 39 (“bogtrotter”); Fayn v Thompson Properties Pty Ltd (1991) 7 BR 144 at 146 per Hunt J (“mahulla”). It is for the judge to decide whether the meaning of the word would be understood by the general community. Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536 at 544. See, for example, Cornes v Ten Group Pty Ltd [2011] SASC 104 at [94]. Radio 2UE Pty Ltd v Chesterton (2009) 238 CLR 460 at [51]; Hough v London Express Newspaper Ltd [1940] 2 KB 507. Butler v John Fairfax Group Pty Ltd (unreported, New South Wales Supreme Court, Levine J, 25 May 1994).

[3.130] 41

Australian Media Law

Defamatory meaning Test [3.140] Once the distinct imputations are identified, the next question will be whether they carry a defamatory meaning. In Radio 2UE Pty Ltd v Chesterton 55 the High Court held that the relevant test was whether the published matter would be likely to lead others to think less of the plaintiff, 56 which has also been expressed as whether it has the tendency to lower the plaintiff in the estimation of others. 57 This test was preferred over other alternative tests that have been previously recognised, namely whether the published matter was likely to injure the reputation of the plaintiff by exposing him or her to hatred, contempt or ridicule, 58 or would tend to cause the plaintiff to be shunned or avoided. 59 The High Court thought that the first of these was too narrow, and that the second operated more as an exception to the requirement that there be damage to the plaintiff’s reputation. 60 Accordingly, cases that might have previously satisfied either of these tests now need to be considered in terms of whether the plaintiff’s reputation has been damaged. For example, to impute that a person was insane was previously held to be defamatory on the ground that it may induce others to shun or avoid the plaintiff, 61 although it need not make others think less of the plaintiff. Similarly, defamatory matter may subject a person to ridicule, even though it does not lower them in the estimation of others. 62 The High Court in Radio 2UE Pty Ltd v Chesterton also recognised that “disparagement of reputation” is “the essence of an action for defamation”. 63 It is necessary, therefore, for the imputation to disparage the plaintiff, that is to impute moral blame to the plaintiff. 64

55 56

57 58

Radio 2UE Pty Ltd v Chesterton (2009) 238 CLR 460. Radio 2UE Pty Ltd v Chesterton (2009) 238 CLR 460 at [5], [60], citing Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 638-639; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 545 per Gaudron and Gummow JJ; and John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291 at 351 per Callinan and Heydon JJ. Radio 2UE Pty Ltd v Chesterton (2009) 238 CLR 460 at [4], citing Sim v Stretch (1936) 52 TLR 669 at 671. Parmiter v Coupland (1840) 6 M & W 105 at 108; 151 ER 340 at 342; Brander v Ryan (2000) 78 SASR 234 at 245.

59

See, for example, Morgan v Lingen (1863) 8 LT 800 (imputing that the plaintiff was insane); Henry v TVW Enterprises [1990] WAR 475 (imputing that the plaintiff had hepatitis B); cf Dawson Bloodstock Agency v Mirror Newspapers Ltd [1979] 1 NSWLR 16.

60 61 62

Radio 2UE Pty Ltd v Chesterton (2009) 238 CLR 460 at [4]. As in Morgan v Lingen (1863) 8 LT 800. See, for example, Ettingshausen v Australian Consolidated Press (unreported, NSW Supreme Court, Hunt J, 25 June 1991) (photograph of plaintiff showing his genitals capable of subjecting the entirely blameless plaintiff to more than a trivial degree of ridicule and therefore defamatory). See also McDonald v North Queensland Newspaper Co Ltd [1997] 1 Qd R 62; Obermann v ACP Publishing Pty Ltd [2001] NSWSC 1022. Radio 2UE Pty Ltd v Chesterton (2009) 238 CLR 460 at [32]. Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84; Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1.

63 64

42 [3.140]

Chapter 3 – Defamation

Example

Boyd v Mirror Newspapers Ltd [3.150] Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 The defendant newspaper published an article that suggested that the plaintiff, a rugby league footballer, had waddled onto the football field, that he was overweight mainly due to injury, and that he had lost his pace and step. The plaintiff alleged that the article gave rise to three imputations: (1) that he was so fat and slow that he could not properly play in his position in first grade rugby league football; (2) that he was so fat as to appear ridiculous on the field; and (3) that he had so let his condition to degenerate that he was a hopeless player. It was held that imputation (3) was capable of being defamatory because it lowered the plaintiff in the estimation of reasonable members of society by according blame to the plaintiff for his condition. By contrast, while imputation (1) may also have lowered him in the estimation of others it was not capable of being defamatory since it contained no suggestion of blame on the plaintiff’s part and therefore was not disparaging.

[3.160] By contrast, the common law did not require disparagement in cases where the matter was likely to induce the plaintiff to be shunned or avoided, or where the plaintiff was held up for ridicule, 65 (as in the case of imputation (2) in Boyd v Mirror Newspapers Ltd). The High Court’s preference for a test of whether the published matter would be likely to lead others to think less of the plaintiff may mean that published matter that ridicules the plaintiff now may not be considered defamatory unless it disparages the plaintiff’s reputation. Published matter will not be judged to be defamatory if it merely embarrasses or hurts the plaintiff’s feelings. 66 However, if the publication damages the plaintiff’s reputation any damages awarded may include a component on account of the injury to the plaintiff’s feelings. 67

Relevant standard Ordinary, reasonable people [3.170] The question whether people would be likely to think less of the plaintiff is adjudged by reference to the standard of the hypothetical referee, namely “ordinary, reasonable people.” 68 Such people are “ordinary, decent folk” in the community 69 who are of ordinary intelligence, experience and education, fair-minded and not avid for scandal. They are 65

Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 at 453.

66

Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 at 452; Australian Broadcasting Corporation v Reading [2004] NSWCA 411 at [184].

67 68

See [3.1320]. Radio 2UE Pty Ltd v Chesterton (2009) 238 CLR 460 at [5] citing Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 638; Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; 79 ALJR 1716 at 1719-1720 per Gleeson CJ, McHugh, Gummow and Heydon JJ; Nevill v Fine Art & General

[3.170] 43

Australian Media Law

expected to bring to the matter in question their general knowledge and experience of worldly affairs 70 and of standards held by the general community. 71 Those standards include but are not limited to those of a moral or ethical kind. The standards of the community may change as society changes. For example, while it was once defamatory to say of a woman that she had been raped 72 such an imputation today would not be regarded as damaging the woman’s reputation. An issue of greater currency is whether there has been sufficient change in the community’s social and moral values that an imputation that a man is a homosexual or has participated in homosexual sex is not defamatory on account of that fact alone. There has been authority that has held that such an imputation alone is no longer defamatory, although it might still give rise to a defamatory imputation such as hypocrisy, an abuse of a position of power or trust, or infidelity in the context of the publication or by way of true innuendo. 73 There have also been decisions to the contrary. 74

Sectional attitudes [3.180] The defamatory nature of an imputation is generally ascertained by reference to general community standards and not sectional attitudes. 75 This view has been relied upon to support a conclusion that a statement identifying the plaintiff as a police informer is incapable of being defamatory because such a statement would only be viewed with disfavour by a minority, that is, criminal classes, and should indeed raise the plaintiff’s character in the estimation of “ordinary, reasonable persons”. 76 One difficulty with such a conclusion is that it replaces a test that refers to current general community standards – no matter how prejudiced – with a one that refers to a particular perception of what those standards should be. 77 Insurance Co Ltd [1897] AC 68 at 72 per Lord Halsbury LC. In Radio 2UE Pty Ltd v Chesterton (2009) 238 CLR 460 at [5] the High Court eschewed as ambiguous the expression “right thinking members of the community”. See also Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31 at [54]. 69 70

John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291 at 309 per Callinan and Heydon JJ. Radio 2UE Pty Ltd v Chesterton (2009) 238 CLR 460 at [6], [60]; Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; 79 ALJR 1716 at 1719-1720; Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31 at [54].

71 72 73

Radio 2UE Pty Ltd v Chesterton (2009) 238 CLR 460 at [60]. Youssoupoff v MGM (1934) 50 TLR 581. Rivkin v Amalgamated Television Services Pty Ltd [2001] NSWSC 432 at [30]. See also Quilty v Windsor (1999) SLT 346. Rivkin has been criticised as being without sound foundation in L McNamara, “Bigotry, community and the (in)visibility of moral exclusion: Homosexuality and the capacity to defame” (2001) 6 Media & Arts Law Review 271. Horner v Goulburn City Council (unreported, NSW Supreme Court, Levine J, 5 December 1998); Kelly v John Fairfax Publications Pty Ltd [2003] NSWSC 586 at [40]. See also Australian Broadcasting Corporation v Hanson (unreported, Qld Court of Appeal, 28 September 1998).

74

75

Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 507. This concept is different, however, from the notion of “true innuendo” whereby a statement may be defamatory even though only a few people are possessed with knowledge of certain particular facts which place the material published in a defamatory light.

76

Mawe v Pigott (1869) Ir 4 CL 54 at 62; Byrne v Deane [1937] 1 KB 818 at 832-833, 840-841. This position might be contrasted with a situation where the ordinary, reasonable people belong to a sectional group, perhaps based on religion or ethnicity: see, for example, Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536.

77

See Fleming (9th ed, 1998), p 583; GL Fricke, “The criterion of defamation” (1958) 32 ALJ 7 at 12-13.

44 [3.180]

Chapter 3 – Defamation

While it may be correct to say that an imputation is not defamatory if it would damage a person’s reputation among only a small or disreputable minority, if the views of that minority do not reflect those of the general community, there is authority for the view that it is sufficient if the matter is defamatory in the estimation of an “appreciable and reputable” or “substantial” section of the community since such view may reflect the standards of “ordinary, reasonable members of society.” 78 An example is disapproval of certain practices by particular religious or ethnic groups which are not the subject of disapproval by the general community apart from those groups. 79 Thus, it may be defamatory to say of a person that he or she performs legal abortions since a large part of the community would regard the performance of even a legal abortion to be morally wrong. 80

Nature of medium [3.190] When applying the standard of ordinary, reasonable persons, the judge must take into account the degree of analytical attention with which the material may be expected to have been received, and the degree of accuracy that the recipient may have expected of the material. For example, if the material is published in a book, an ordinary reasonable person would be likely both to expect that care had been taken by the author and to read the material with a high degree of attention. 81 A reader of written material may be expected to consider or re-read the document at leisure or to check something which has gone before to ensure that his or her understanding is correct and in doing so to change any mistaken first impression of the message being conveyed. 82 By contrast, in the case of broadcasts by the electronic media, where the publication is often a fleeting episode and the viewer/listener has no opportunity to hear the words again or to read and study them, it has been acknowledged that the ordinary reasonable person is less likely concerned with the precise words used (including, perhaps, the significance of the existence earlier in the programme of a qualification of a statement made later in the published material) and more concerned with the overall impression gained. 83 As Kirby J has observed in the High Court, in a society increasingly used to the immediacy of “channel surfing” with remote controls and accessing the internet, publishers must take special care with prominently published material, including headlines, captions, photographs, pictures and their digital equivalents. 84 In the case of sensational publications, the ordinary reader/listener/ viewer is regarded as prone to some loose thinking, sometimes making it easier to show that 78 79

80 81 82 83 84

See, for example, Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 at 694 (“appreciable and reputable”); Grundmann v Georgeson (1996) Aust Torts Reports 81-396 at 63,503 (“substantial”). Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536 at 544. In such a case it would be necessary to plead the sectional attitude as an extrinsic fact and the case will then proceed on the basis that the publication was only to members of the particular group: see [3.130]. See, for example, Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682; Grundmann v Georgeson (1996) Aust Torts Reports 81-396. Farquhar v Bottom [1980] 2 NSWLR 380 at 386. Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 166. See, for example, Gorton v Australian Broadcasting Commission (1973) 22 FLR 181 at 187; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165-166. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 575.

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the publication is capable of conveying a defamatory imputation. 85 By the same token, there may also be circumstances in which it is more difficult for a plaintiff to show a defamatory meaning was conveyed on the basis of the recipient’s casual attention.

Statements made in jest [3.200] Merely because matter is published in jest does not prevent cartoons, caricatures, jokes or satire from being subject to the laws of defamation. It is the interpretation of the ordinary reader/listener/viewer and not the intention of the publisher that is relevant. If that person would interpret the publication as mere jest, there is no cause of action. 86 However, if the publication holds its subject up to ridicule and thereby damages a plaintiff’s reputation (as often is the case) 87 or where attempted humour promotes an underlying assumption of alleged truth which may be considered defamatory, 88 then the defendant cannot claim that the publication was no more than comic nonsense. The fact that there are few actions against the publishers of cartoons, caricatures, jokes or satire may be for a number of reasons. For example, if due account is given to the context of the publication, and the material is understood by reasonable readers or viewers as being no more than a joke, and bound to traffic in exaggeration, caricature, allegory and fiction, the material is unlikely to injure the plaintiff in his or her reputation. 89 Alternatively, the publisher may have an available defence, such as honest opinion. 90 In addition, there may be other factors that influence the subject of the cartoon, caricature, joke or satire to not take action. For instance, politicians who take action over cartoons or jokes are not likely to project to their constituencies the kind of image of themselves that they might prefer.

85 86

Aqua Vital Australia Ltd v Swan Television & Radio Broadcasters Pty Ltd (1995) Aust Torts Reports 81-364 at 62,717 (WA FC); Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165. Donoghue v Hayes (1831) Exch 265 at 266.

87

For an example of a plaintiff alleging that it was defamed by a cartoon, see: Harry Seidler & Associates Pty Ltd v John Fairfax & Sons Ltd (1986) Aust Torts Reps 80-002.

88

Donoghue v Hayes (1831) Exch 265 at 266; Entienne Pty Ltd v Festival City Broadcasters Pty Ltd (2001) 79 SASR 19 at 28-29 (FC) (radio skit suggesting nearby businessman was a drug dealer); Ten Group Pty Ltd v Cornes (2012) 114 SASR 46 (panel show in which comedian guest panellist suggested a footballer had had sex with the plaintiff, who was married to another man). Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 664 at 667; Harry Seidler & Associates Pty Ltd v John Fairfax & Sons Ltd (1986) Aust Torts Reports 80-002 at 67,476. See, for example, Harry Seidler & Associates Pty Ltd v John Fairfax & Sons Ltd (1986) Aust Torts Reports 80-002.

89 90

46 [3.200]

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Vulgar abuse [3.210] Words which are merely spoken by way of vulgar abuse or vituperation, and which are understood as such by those who heard them, may not be capable of conveying any defamatory imputation. 91 However, there is no dichotomy between vulgar abuse on the one hand and defamatory matter on the other: it does not follow from establishing that the matter complained of is vulgar abuse that it is not defamatory. 92 The relevant question will be whether the words are capable of damaging the plaintiff’s reputation in the eyes of ordinary, reasonable people. 93 The nature of defamation is that there are no close analogies: it is dangerous when determining whether imputations are defamatory to have regard to other cases concerning specific words. 94 Accordingly, words such as “vermin” and “bully” may be defamatory in one case but only mere vulgar abuse and not actionable in another. 95 The question depends upon the context of the publication and the terms and/or manner in which the words are expressed. 96

Context [3.220] In order to determine whether published words or material of which the plaintiff complains is defamatory it is necessary to take into account the context in which the words or material were used and the mode of publication. A plaintiff cannot select an isolated part of the material and complain of that alone if other parts throw a different light on the part selected. 97 Conversely, the context in which the words or material are used may mean that those words or material convey a defamatory meaning that they might not otherwise do. For example, a mere statement that a person is a suspect, is under investigation or has been charged is not enough to impute guilt or reasonable grounds for suspicion. 98 However, if accompanied by an account of suspicious circumstances that have aroused the interest of authorities and point towards a likelihood of guilt, a different impression may be created and the context may render the words or material capable of bearing a defamatory meaning. 99 The context of the material may include (as appropriate) headlines, headings, captions, accompanying visual images, introductions that precede and back announcements that follow 91

92

93 94 95 96 97 98 99

See, for example, Mundey v Askin [1982] 2 NSWLR 369 at 372 (description by Premier of Opposition as “vermin” not defamatory); Wood v Branson (1952) 3 SALR 369 (Transvaal) (describing a person as a “cow” or a “bitch” is meaningless abuse and not defamatory). See also Gwynne v Wairapa Times-Age [1972] NZLR 586 (publication likening protest marchers to “Hitler’s fascist people” and “Hitler’s puppets” not defamatory). Bennette v Cohen (2005) 64 NSWLR 81 at [51]. See, for example, Australian Broadcasting Corporation v Hanson (unreported, Qld Court of Appeal, 28 September 1998) where as a purportedly satirical musical composition relating to the sexual orientation and preferences of the then Member for Oxley which was claimed by the defendant to be vulgar abuse was held to be “plainly defamatory for exposing the [plaintiff] to ridicule and contempt”. Echo Publications Pty Ltd v Tucker [2007] NSWCA 73 at [130]. Bennette v Cohen (2005) 64 NSWLR 81 at [57]. RJ v JC [2008] NSWDC 217 at [16]. Bennette v Cohen (2005) 64 NSWLR 81 at [51]. Charleston v Newsgroup Newspapers Ltd [1995] 2 AC 65 at 70. Sands v Channel Seven Adelaide Pty Ltd [2010] SASC 202 at [126]; Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; 79 ALJR 1716 at [12]. Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; 79 ALJR 1716 at [12].

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broadcast stories, the manner and extent of the publication and the audience to whom the material was published. In the case of a radio or television broadcast, it is inappropriate to review a transcript in order to determine whether the broadcast material is defamatory, because this will not convey the true context of the publication. Instead, a recording of the broadcast should be reviewed, unaided by a transcript, and the recording should not be repeated many times during the trial. 100 The scope of the relevant context may be an important consideration. With the progress of availability of radio, television, mobile telephones and the internet, with its vast possibilities such as various social networks, it is no longer possible to predicate loyalty to a particular television or radio channel, or a particular programme, since constant change is no further than the remote control is distant from the fingers. This may mean that the relevant context is properly more narrowly defined as a particular episode or part of an episode of a programme rather than the nature of the programme itself as shown by previous episodes. 101 Example

Ten Group Pty Ltd v Cornes [3.230] Ten Group Pty Ltd v Cornes [2011] SASC 104; (2012) 114 SASR 46 The defendant broadcast the Before the Game panel show, which combined highlights of AFL games, interviews with footballers and other information about football. It also featured guest panellists who were comedians and included comedic elements. During an interview with a footballer which canvassed, among other things, his match fitness, training and exercise regimes, and the performance of areas of players from various clubs before turning to his social status and sex life. At one point in the interview Malloy, a comedian who was a guest panellist, interjected that the footballer had had sex with the plaintiff, who was a married woman. The defendant argued that the imputation that the plaintiff had committed adultery did not convey a statement of fact when taken in context, which could be defined as either (1) the format of the Before the Game programme and knowledge of the reputations and prior activities of comedic members of the panel who took part in the subject interview; (2) the whole of the particular episode; or (3) the whole of the interview with the footballer. The trial judge held that due to the availability of an ever-increasing number of competing channels on both free-to-air and pay TV, as well as the attractions of some of the other many alternatives to television now available, loyalty to a particular channel or particular programme could no longer be predicated. Accordingly, the assumed characteristics of the ordinary reasonable viewer could not be taken to be imbued with knowledge of the previous episodes of the programme or the reputations or the previous activities of the panellists. The relevant context was therefore either the particular episode or the interview itself. There was substantial amount of what might be called “informative material” in the format of the programme, including the particular episode, 100 101

Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448; TCN Channel Nine Pty Ltd v Mahoney (1993) 32 NSWLR 397. Ten Group Pty Ltd v Cornes (2012) 114 SASR 46 at [51].

48 [3.230]

Chapter 3 – Defamation Ten Group Pty Ltd v Cornes cont. as shown by the interview itself. The elements of humour or attempted humour throughout the programme were not so pronounced that it made clear that statements contained in the informative segments, such as the subject interview, were to be understood as fantasy or being devoid of meaning. This approach was upheld on appeal to the Full Court.

Bane and antidote [3.240] A consequence of considering the material complained of in its context is that in one part of the material something disreputable to the plaintiff may be stated, but may be removed by another part: in other words the “bane and antidote must be taken together”. 102 The relevant question for the jury will be whether the antidote is effective to neutralise the bane. In determining this question the jury should consider the mode of publication and the relative prominence given to different parts of it. 103 Example

Charleston v Newsgroup Newspapers Ltd [3.250] Charleston v Newsgroup Newspapers Ltd [1995] 2 AC 65 The plaintiffs were actors who portrayed the characters Harold and Madge Bishop in the long running Australian television serial Neighbours, which was popular among English audiences. The defendant newspaper published an article that appeared with a headline that read “Strewth! What’s Harold up to with our Madge?” immediately above two photographs showing the plaintiffs’ faces superimposed on the near-naked bodies of models in pornographic poses. The article made it clear that the photographs had been produced without the knowledge or consent of the plaintiffs and castigated the makers of a pornographic computer game which used the images. The plaintiffs sued the newspaper alleging that for some casual readers the photographs on their own or coupled with the headlines were capable of bearing a defamatory meaning. It was held in the House of Lords that the headline or photograph could not be considered in isolation from the related text. An ordinary, reasonable reader taking into account the entire publication, including the criticism of the makers of the computer game for victimising the plaintiffs, could not have gained the impression that the plaintiffs were involved in making pornographic films.

[3.260] This decision has been criticised by Kirby J in the High Court as being divorced from “the realities of the way in which ordinary people receive, and are intended to receive,

102 103

Chalmers v Payne (1835) 2 CM & R 156 at 159. Charleston v Newsgroup Newspapers Ltd [1995] 2 AC 65 at 70.

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communications of this kind”. 104 It ignored changes in media technology and presentation and denied a remedy to people whose reputation may be severely damaged by casual or superficial perception of such publications. His Honour thought the decision was wrong in so far as it attributed to recipients of matter published by the mass media a close and careful attention to the entirety of the item published. 105 The “antidote” must be sufficient to dispel the whole effect of the defamatory imputation and not only part. Example

Morosi v Broadcasting Station 2GB Pty Ltd [3.270] Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418 A radio announcer referred to the plaintiff in the following terms: “Hers is the most notorious woman’s name in the country and now that she’s to have a baby there will be a spate of dirty jokes about her, and a variety of speculations as to who is the father, because everybody knows that Junie Morosi is an immoral adventurer … adventuress … who has slept with a variety of notable politicians, and most recently has been sleeping with Jim Cairns. In fact, of course, nobody knows any such thing. There is indeed not even the faintest suggestion that she has ever had any such relationship with any of the men she has known … there is no stain of any kind on her character … Junie Morosi showed once again that she is an intelligent, courageous, sensitive and, of course, a very handsome women.” At trial the issue of defamatory matter was withdrawn from the jury on the basis of the purported antidote. The New South Wales Court of Appeal held that what was required was essentially the weighing up and comparison of bane and antidote. It is a question of degree and competing emphasis. It is a matter of impression, taking into account the attributes of the notional listener. Here, while the announcer may have been said to have been trying to “champion the cause” of the plaintiff, in the circumstances it could not be said that the antidote so manifestly achieved its purpose that the issue of defamatory matter should have been withdrawn from the jury. 106

104 105 106

Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 574. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 574. See also Australian Broadcasting Corporation v Hanson (unreported, Qld Court of Appeal, 28 September 1998) where the Queensland Court of Appeal held that it was “facile” to suggest that statements by a radio announcer prior to playing a song relating to the sexual orientation and preferences of the then Member for Oxley that it was “satirical and not to be taken seriously” could convert such “grossly defamatory” material into acceptable material.

50 [3.270]

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[3.280] It may be easier to arrive at an answer where the publication contains an express disclaimer 107 or where the antidote consists in a statement of fact destructive of the ingredients from which the bane has been brewed. 108 A popular misconception among some journalists is that simply adding the adjectives “alleged,” “allegedly” or words to that effect, to their reports of criminal proceedings or investigations, or other cases of alleged wrongdoing, is sufficient to remove any imputation from the domain of defamation. This is not the case. 109 It is also of no relevance that there were rumours or suspicions to the same effect as the defamatory imputation already in the public arena, 110 even where there is an additional attempt to provide an antidote, such as the addition of a qualification like “but there is nothing to prove that the rumour is true”. 111 The publication will be defamatory if, overall, there is merely the presentation of two conflicting versions. that affecting the plaintiff’s reputation and that doubting the charge, or if it includes a denial of allegations either by the subject of those allegations or by others on behalf of that person. 112 This is because a contradiction of an assertion does not oblige the viewer or reader to the refutation and oblige him or her to disregard the assertion. Instead, the ordinary, reasonable members of the community are presented with two conflicting assertions, with the choice of accepting either. 113 This means that the media must take particular care when reporting, for example, police investigations and court proceedings. Reporting that a person is under police investigation, has been arrested or charged with a crime, without more, is not defamatory 114 since ordinary,

107 108

Stubbs Ltd v Russell [1913] AC 386. Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418 at 420. Cf the unusual case Djuricanin v Foreign Language Publications Pty Ltd (unreported, NSW Supreme Court, 12 May 1995) where Levine J suggested that the antidote would be insufficient where it was written in English but the bane was in Serbian and readers could not read English.

109

Brown v John Fairfax & Sons Ltd (unreported, NSW Supreme Court, Hunt J, 13 July 1988); Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 170. Scott v Sampson (1882) 8 QBD 491 at 503; Hopman v Mirror Newspapers Ltd [1961] SR (NSW) 631 at 632-633.

110 111

Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 300; Lewis v Daily Telegraph Ltd [1964] AC 234 at 283. See also PC Heerey, “Publishing the defamatory statements of others” (1985) 59 ALJ 371 at 371.

112

Farquhar v Bottom [1980] 2 NSWLR 380 at 387-388; Hopman v Mirror Newspapers Ltd [1961] SR (NSW) 631 at 632; Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43; Ten Group Pty Ltd v Cornes (2012) 114 SASR 46 at [111]-[114]. Tabloid media are accordingly unable to escape consequences in defamation for the publication of “sleazy gutter journalism” by dressing it up with expressions of “high minded principle and of shock and horror at the misbehaviour of its victims”: Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 169.

113 114

Savige v News Ltd (1932) SASR 240 at 245. See, for example, Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 (report of an arrest after “intensive investigation by a special squad of detectives” not defamatory); Rochfort v John Fairfax & Sons [1972] 1 NSWLR 16 (report that a person had been charged with a crime not defamatory).

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reasonable people understand that a person is innocent until proven guilty. 115 However, if the report goes beyond a factual account and is embellished so as to impute guilt, or at least that the plaintiff was suspected on reasonable grounds, then the publication may be defamatory. 116 As one judge remarked, “a man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also fire, but it can be done”. 117 Similarly while it is possible to report suspicion without suggesting guilt, using loose language about suspicion can very easily convey the impression of guilt. As always, it is a question of the overall context. The context of the report, including any headlines, the layout, contents, general tenor and prominence, will be taken into account when determining whether the material conveyed an imputation of guilt. 118 Naturally, if the published material imputed guilt, a defence of justification could only be established if the publisher were able to prove that the person was in fact guilty. Similar considerations affect the reporting of civil litigation. Care must be taken to convey the impression that an allegation may have been made which was disputed and that the outcome remained to be determined. Otherwise, a report that imputes that the allegation is correct may be defamatory. 119 Again, a justification defence would only be successful if the publisher proved that the allegation was correct.

Intention and motive [3.290] The intention or motive of the publisher is irrelevant to the question of whether the published material is defamatory or not. It does not matter, therefore, if the statement was made, for example, by the media in order to disclose a wrongdoing by the subject of the publication, or even if it intended to defend the plaintiff against other allegations that had been made against him or her. 120 Nevertheless, the intention or motive of the publisher may be relevant in relation to certain defences, such as qualified privilege and honest opinion, and to the assessment of damages.

Judge and jury [3.300] There are initially two questions of law regarding defamatory matter: (1)

whether the matter complained of is capable of conveying the alleged imputations to the ordinary, reasonable reader/listener/viewer; and

115 116

Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 300. Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293; Butler v John Fairfax Group Pty Ltd (unreported, NSW Supreme Court, Levine J, 25 May 1994). Lord Devlin in Lewis v Daily Telegraph Ltd [1964] AC 234 at 285. Sartor v John Fairfax Group Pty Ltd (unreported, NSW Supreme Court, Levine J, 1 April 1993).

117 118 119 120

Ross McConnel Kitchen & Co Pty Ltd v John Fairfax & Sons Ltd [1990] 2 NSWLR 845 at 850. See also Heerey at (1985) 59 ALJ 371 at 372. Lee v Wilson (1934) 51 CLR 276 at 288; Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418 at 420.

52 [3.290]

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(2)

whether those imputations are capable of bearing a defamatory meaning. 121

In deciding whether the matter is capable of conveying a defamatory meaning the court will reject those meanings which can only emerge as the product of some strained, forced or utterly unreasonable interpretation. 122 The determination is “an exercise in generosity not parsimony” requiring a “high threshold of exclusion” since an adverse finding deprives a party of the opportunity to present his or her case to the jury. 123 If both those questions of law are answered in favour of the plaintiff, it then becomes necessary to determine two questions of fact: (1)

whether the ordinary reasonable reader/listener/viewer would, in fact, have taken the matter complained of as conveying those imputations; and

(2)

whether that reader/listener/viewer would, in fact, have understood such implications as being such as to cause ordinary decent folk in the community, taken in general, to think less of the plaintiff. 124

The issue for the trier of fact is the actual meaning of the words, not the question of what those words are capable of meaning. The meaning of the words is not determined by reference to the most damaging meaning that an ordinary listener or viewer might ascribe to the matter. 125 Where a claim for defamation is not resolved by the offer to make amends procedure 126 and instead continues to court proceedings that are tried by jury, the two questions of law would be determined by the judge and the two questions of fact would be determined by the jury. 127 The advantage of having the factual issues tried by a jury is that they represent the audience to which the defamatory publication was addressed, and are able to evaluate the competing issues utilising the moral and social standards that they share with the community at large and their understanding of mass media publications. 128 This makes them better placed than judicial officers to make these determinations. However, not all jurisdictions share the same attitude towards allowing parties to elect to have defamation proceedings tried by jury. In South Australia juries in civil actions such as defamation have been abolished and the Territories previously restricted the circumstances in which juries were available. These differences have carried over into the present regimes with juries in defamation actions now abolished in all three jurisdictions. 129 In the remaining 121 122

Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; 79 ALJR 1716 at [9] affirming Jones v Skelton [1963] SR (NSW) 644; [1963] 1 WLR 1362; [1963] 3 All ER 952 at 650 (SR (NSW)). Jones v Skelton [1963] SR (NSW) 644; [1963] 1 WLR 1362; [1963] 3 All ER 952; Farquhar v Bottom [1980] 2 NSWLR 380.

123

Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [135].

124 125 126

Farquhar v Bottom [1980] 2 NSWLR 380 at 385. Sands v Channel Seven Adelaide Pty Ltd [2010] SASC 202 at [105]. See [3.570].

127 128 129

DA: s 22(2). Ra v Nationwide News Pty Ltd (2009) 182 FCR 148 at [19]. See Supreme Court Act 1933 (ACT), s 22; Juries Act (NT), s 6A; Juries Act 1927 (SA), s 5.

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jurisdictions unless the court orders otherwise, a plaintiff or defendant in a defamation action may elect to have proceedings tried by jury. 130 A trial judge has no power to dispense with a jury on his or her own motion. 131 Grounds on which a court may order trial without a jury include trials requiring a prolonged examination of records and all trials involving any technical, scientific or other issue that cannot be conveniently considered and resolved by a jury. 132 The differing approaches to jury trials in defamation cases represent the main deviations from a truly uniform defamation system. Where defamation proceedings are tried by jury, the jury has the task of deciding whether the defendant has published defamatory matter about the plaintiff, and if so, whether any defence raised by the defendant has been established. 133 That is to say, the jury is to decide the issues of fact related to whether the material is defamatory, whether that material was about the plaintiff and whether it was published as well as issues of fact concerning the defences. The uniform defamation legislation does not require or permit the jury to determine issues of law, which have always been, and remain, the responsibility of the judge. 134 Once those determinations are made, the judge, not the jury, determines the amount of any damages and all unresolved issues of fact and law relating to the determination of that amount. 135

Single cause of action [3.310] Under the uniform defamation legislation a person has only a single cause of action for defamation where defamatory matter has been published, even where there is more than one imputation about the plaintiff in the publication.

130

DA: s 21(1). See further Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd (No 2) [2014] WASC 408 at [5] (“A request for defamation trial before a civil jury has been an infrequent occurrence in [Western Australia]”).

131 132

133

Channel Seven Sydney Pty Ltd v Fierravanti-Wells (2011) 81 NSWLR 315 at [94]. DA: s 21(3). Where a plaintiff requests trial by jury a defendant resisting such a trial on the basis of issues “that can not be conveniently considered and resolved by a jury” must be able to point to issues more compelling than merely the fact that the trial will involve extrinsic evidence in order to pursue true innuendo meanings and that defences such as qualified privilege and the Polly Peck defence will be involved: Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd (No 2) [2014] WASC 408. DA: s 22(3).

134

DA: s 22(5)(b).

135

DA: s 22(3).

54 [3.310]

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Reasonably referable to the plaintiff Test [3.320] The defamatory matter must be “of and concerning” the plaintiff: it must reasonably be taken to refer to the plaintiff. 136 It is first a question for the judge to decide whether the material is capable of identifying the plaintiff, and then a question of fact whether it actually identified the plaintiff, to be determined by the jury if there is one. 137 The clearest example of material referring to the plaintiff is where the material identifies the plaintiff by name. 138 The same could be said for publication of the plaintiff’s visage. 139 However, it is not necessary for the publication to expressly refer to the plaintiff. The test is whether an ordinary, reasonable person would identify the plaintiff as a person being referred to. 140 It will therefore be sufficient if material that does not expressly refer to the plaintiff is published to persons who, because of their knowledge of extrinsic facts, reasonably understand the material to be referring to the plaintiff. 141 Example

Cassidy v Daily Mirror Newspapers Ltd [3.330] Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331 A newspaper published a photograph of the plaintiff’s husband with another woman, accompanied by a statement that the photographed couple were engaged to be married. The English Court of Appeal held that although the plaintiff was not expressly referred to, and was indeed unknown to the defendant, the publication was referable to her since in the eyes of those who knew the plaintiff and the fact that she lived with the man in the photograph, the defamatory imputation was that she was not married to him and was instead his mistress.

[3.340] Similarly, to say of a television reporter that he or she was guilty of plagiarism and/or lazy journalism would also be taken as imputing against the reporter’s executive producer that he or she at least sanctioned that behaviour and against his or her producer that he or she actively participated in the detail of it in relation to the story in question. 142 136 137 138 139 140 141 142

Bjelke-Petersen v Warburton & Burns [1987] 2 Qd R 465 at 467. E Hulton & Co v Jones [1910] AC 25. See also DA: s 22(2). Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 54. Johnstone v Australian Broadcasting Commission (1993) 113 FLR 307; Edginton v South Australian Telecasters Ltd (1986) 126 LSJS 254. Morgan v Odhams Press Ltd [1971] 1 WLR 1239. Knupffer v London Express Newspaper Ltd [1944] AC 116 at 119; Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331; Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 373-374. Carleton v Australian Broadcasting Corporation [2002] ACTSC 127 at [99].

[3.340] 55

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Publications which reflect on an individual through their conduct of a business may not only reflect adversely upon that person’s private character but may also injure that person in his or her profession, business or trade. Words that reflect upon the person’s fitness or ability to undertake what is necessary in that business, profession or trade may amount to damage to reputation and be the province of defamation law, whereas malicious statements which results in damage not to reputation but to the business or goods of that person will be the province of the tort of injurious falsehood. 143 Nevertheless, as Gleeson CJ and Crennan J pointed out in John Fairfax Publications Pty Ltd v Gacic, 144 to say that a restaurant sells unpalatable food or provides bad service may not necessarily be a reference to the owners personally, since they may be worthy people who are themselves victims of circumstances or incompetent staff, but it may still have a tendency to damage their business reputation and not merely be referable to the business itself. Where there is a publication that refers to a product it will be a question of whether an ordinary reasonable recipient would regard that reference as also being a reference to individuals involved with that product. 145 Thus, for example, a news item reporting on the dangers of cigarettes and a recommendation that they not be available through newsagencies, even when using a specific newsagency as a backdrop, would likely not be a reference to individuals who ran that newsagency, whereas in an appropriate case a report on a dangerous consumer product which was only manufactured or sold by a small number of persons may reflect upon the reputation of those persons. 146

Time of reference [3.350] The plaintiff’s cause of action must arise at the time of the defendant’s act, that is the publication, and not later. Normally, therefore, if a plaintiff relies on the reader/listener/ viewer’s knowledge of extrinsic facts, that knowledge must exist at the time of the publication. Accordingly, a subsequent publication cannot be used as an extrinsic fact (or means by which the reader/listener/viewer’s knowledge of an extrinsic fact is obtained) in order to cause an otherwise innocent publication to be referable to the plaintiff, or to bear a defamatory meaning. 147 There are, however, two exceptions to this rule. The first is that a plaintiff may rely on a subsequent publication by the defendant where the matter complained of is defamatory on its face and where the subsequent publication by the defendant is used only to identify the plaintiff as the person referred to. In such a case the subsequent publication establishes that the defendant actually intended to refer to the plaintiff in the material complained of. Alternatively it is because, regardless of the defendant’s actual intention, the subsequent 143 144 145 146

147

Radio 2UE Pty Ltd v Chesterton (2009) 238 CLR 460 at [10]-[11]. See [3.1460] in relation to injurious falsehood. John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291 at [6] Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369 at [36]. Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369 at [36]-[37] (in the circumstances even though the subject of the news broadcast was the product, a baby positioner, and not the applicants, the suggestion that the applicants would have designed and sold a product that could harm or even kill babies would have diminished their standing amongst ordinary members of the community). Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 at 88.

56 [3.350]

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publication leads the reader/listener/viewer to infer that the defendant had intended to refer to the plaintiff. 148 An example would be where a newspaper states that the person it is criticising was named in a particular way in an earlier edition of its own (or someone else’s newspaper), or will be named in a particular way in a later edition of its own newspaper. 149 The second exception, which is an extension of the first, is where the subsequent publication is by a third party where the matter complained of is interpreted by the ordinary reasonable reader/listener/viewer as inviting the reader/listener/viewer to ascertain the identity of the person to whom the defendant intended to refer from the subsequent publication. 150 Example

Baltinos v Foreign Language Publications Pty Ltd [3.360] Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 An issue of a daily morning Greek newspaper, published by the defendant, included an article that stated that SBS television would be broadcasting a story that evening about foreign visitors falling prey to “a number of slickers”. The plaintiff was not named or directly identified in the article. The SBS programme expressly identified the plaintiff as being involved in questionable activities. It was held in the New South Wales Supreme Court that although the article did not expressly refer to the plaintiff, it was sufficient that the identification was in the subsequent publication by a third party (SBS) since the material complained of would be interpreted by a reasonable reader as inviting him or her to ascertain the identity of the person to whom the defendant intended to refer from the subsequent publication.

[3.370] Similarly, where by clicking a hyperlink in a web page a reader is taken to another web page which identifies the plaintiff, it would seem likely that the first web page will be regarded as identifying the plaintiff. 151

Intention [3.380] The defendant need not have the intention of referring to the plaintiff. If defamatory matter is capable of relating to more than one person, then all who may reasonably be understood to have been referred to may bring an action, even where the defendant intended to refer to still another person. 152 148 149 150 151 152

Hayward v Thompson [1982] QB 47 at 60, 67-68; Ware v Associated Newspapers Ltd (1969) 90 WN (NSW) 180. Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 at 97. Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 at 98. M Collins, The Law of Defamation and the Internet (2001), p 81. Lee v Wilson (1934) 51 CLR 276 at 295. Some judges have suggested that the intention of the defendant may be relevant where there is doubt whether or not the plaintiff was identified: see, for example, at 288-289 per Dixon J. However, see the argument to the contrary in Gillooly (1998), p 61.

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Example

Lee v Wilson [3.390] Lee v Wilson (1934) 51 CLR 276 A newspaper published an article alleging that “Detective Lee” of the Victoria Police was guilty of misconduct. There were in fact two Detective Lees and one Constable Lee in the Victoria Police. The High Court of Australia held that although the article was only intended to refer to the Constable Lee, each of the Detective Lees were able to show that people who knew him understood the words to refer to him. The two Detective Lees were therefore able to maintain actions against the newspaper.

[3.400] Such an unintended reference may be avoided by, so far as possible, removing any ambiguity concerning the subject of the published material and making it clear who is intended to be the true subject of the report. 153 A similar result may follow where fictitious work is published and the name and/or attributes of a fictional character may be understood by ordinary reasonable people as referring to the plaintiff. 154

Defamation of a group [3.410] Where a defamatory imputation is related to a group of individuals, the group is generally unable to sue for defamation. 155 However, one or several of the group may be able to maintain an action, depending on the circumstances, including the size of the class, the generality of the charge and the extravagance of the accusation. 156 The question whether the words refer in fact to the particular plaintiff or plaintiffs is a matter for the jury, the crucial question being whether on the true construction of the defamatory material, taken in conjunction with the relevant circumstances, is the material reasonably capable of being understood as being published of and concerning the particular plaintiff or plaintiffs. If the class is too large, no individual members of the class will be identified. However, if the group is small enough, defamatory material that refers to a group may, in some cases, be understood as relating to each and every one of them. 157 Accordingly, an allegation of corruption levelled at a government ministry (as opposed to, for example, a parliament or government as a 153 154 155 156 157

See also S Walker, Law of Journalism in Australia (1989), p 165. E Hulton & Co v Jones [1910] AC 20; Middle East Airlines Airliban SAL v Sungravure Pty Ltd [1974] 1 NSWLR 323. David Syme & Co v Canavan (1918) 25 CLR 234 at 238. There may, however, be an action for racial vilification in an appropriate case: see [9.20]. Knupffer v London Express Newspaper Ltd [1944] AC 116 at 124; David Syme & Co Ltd v Canavan (1918) 25 CLR 234 at 238. Bjelke-Petersen v Warburton [1987] 2 Qd R 465.

58 [3.390]

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whole) is capable of being read as identifying each member of the ministry. 158 Moreover, it is possible for a publication related to a group which is too large to allow individual members to sue, to contain an imputation particularly referable to a particular member of the group. 159 Example

Lloyd v David Syme & Co Ltd [3.420] Lloyd v David Syme & Co Ltd [1986] AC 350 A newspaper article alleged that members of the touring West Indies cricket team “took a dive” during the last game in the preliminary rounds of a triangular World Series Cricket tournament so that Australia rather than Pakistan would qualify for the final series against the West Indies, thereby ensuring greater crowd and viewer interest. The Privy Council held (approving the judgment of Priestley JA in the New South Wales Court of Appeal) that even though the plaintiff was not specifically referred to, the article was capable of being understood as referring specifically to the captain of the team in allowing such conduct to be performed by the team. He was therefore entitled to bring an action.

[3.430] By contrast, where a statement casts a slur on only one or some unnamed members of an identified group, the question of who may sue would seem to depend upon the nature of the slur. 160 If the slur is such that failure to name the particular member effectively casts a slur on all of the members, such as a statement that “I know which of the Ministers is corrupt,” all members of the group will have been referred to. 161 On the other hand, if it is possible to relate the imputation to only one of the group, such as a statement that “one of the partners was involved in fixing court cases,” none of the members of the group will have been referred to. 162

158 159

160

Bjelke-Petersen v Warburton [1987] 2 Qd R 465. Lever v Murray (unreported, NSW Supreme Court, 5 December 1992) (television report criticising the conduct of Aboriginal protesters “who are here” preceded by the plaintiff being shown as the leader of the group, sufficient to relate criticism to the plaintiff); Henry v TVW Enterprises Ltd (1990) 3 WAR 474 (television report criticising dentists including footage of plaintiff’s surgery sufficient to relate criticism to plaintiff). McCormick v John Fairfax & Sons (1989) 16 NSWLR 485.

161 162

Bjelke-Petersen v Warburton [1987] 2 Qd R 465 at 467. McCormick v John Fairfax & Sons (1989) 16 NSWLR 485 at 491.

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Publication [3.440] For the purposes of defamation law “publication” does not bear its common parlance meaning of issuing a work like a book or a film to the general public, although a book or a film may be examples of the operative meaning. The defamatory material must be published in the sense of being communicated by words, conduct or other means to at least one person other than the plaintiff. 163 Where the material is not defamatory on its face, there will be no relevant publication unless the third person to whom the material is communicated is aware of extrinsic facts which makes the material defamatory and referable to the plaintiff. 164 Where only a section of the community is aware of the extrinsic facts, the case will proceed on the basis that there was publication only to the members of that group. 165 This may be relevant, for example, in relation to the extent of any damages awarded. A radio or television broadcast, or a story in a newspaper or magazine are all communications which are publications in the relevant sense. Publication on the internet, such as through email or a computer bulletin board or discussion group is also sufficient. 166 Of course the potential worldwide reach of publication on the internet has serious ramifications when it comes to, for example, assessment of damages. Further, in the case of an internet website with multiple pages with a different substantive identity, form and purpose, it has been held that each page constitutes a separate publication. The consequence is that a defendant may need to plead separate defences for each page rather than one defence for the whole website. 167

Republication [3.450] Republication, that is repeating defamatory material published by another, constitutes a publication which may give rise to a separate cause of action. 168 This will be the case whether or not the republishing party adopts the statement as his or her own, since mere repetition of the material exposes it to a new audience. 169 However, a party repeating a defamatory statement will not necessarily be liable in the same way as the maker of the primary statement. Whether or not the repetition carries the same defamatory imputation will depend upon the context of the republication. 170 For example, if the republication is in the 163

Pullman v Walter Hill and Co Ltd [1891] 1 QB 524.

164

Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86; Cross v Denley (1952) 52 SR (NSW) 112 at 116; Butler v John Fairfax Group Pty Ltd (unreported, NSW Supreme Court, Levine J, 25 May 1994). Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536 at 544.

165 166 167

168 169 170

This point was conceded by the defendant in Rindos v Hardwick (unreported, WA Supreme Court, Ipp J, 31 March 1994). Buddhist Society of Western Australia Inc v Bristile Ltd [2000] WASCA 210 (Lange defence could not succeed for whole website because a distinct part of the site was clearly not concerning government or political discussion). Channel Seven Adelaide Pty Ltd v S, DJ (2006) 94 SASR 296. “Truth” (NZ) Ltd v Holloway [1960] 1 WLR 997 at 1003; Watkin v Hall (1868) LR 3 QB 396 at 401. John Fairfax Publications Pty Ltd v Obeid (2005) 64 NSWLR 485 at [101]; Sands v Channel Seven Adelaide Pty Ltd [2010] SASC 202 at [116].

60 [3.440]

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context of a report of allegations which also indicates that the allegations are contested or have been rejected there is little or no chance that the republication will carry the same defamatory meaning. 171 A television or radio station will be liable not only for material published by its own employees, but also for any statements made by persons participating in live or recorded interviews or talkback programmes. Similarly, not only the author of a letter to the editor, but also the newspaper that publishes it, is liable for any defamatory material that it contains. 172 The media may be liable even though it expressly states that the publication is no more than a repetition of what the defendant or others have previously said, or prefaces the publication with an attempted disclaimer such as “it is alleged”. 173 This will be the case even where the original publication was privileged, such as statements made in parliament. Of course, the republication may itself be protected by an applicable defence such as qualified privilege or protected report. Generally speaking the original publisher will not be responsible for any republication. 174 However, the original publisher will also be liable for republished defamatory matter as a joint tortfeasor where the: • original publisher expressly authorised the republication of the material; • original publisher knew or intended the material to be republished; • republication of the material was the natural consequence of the original publication; or, • material was republished under a moral obligation to do so. 175 Example

Sims v Wran [3.460] Sims v Wran [1984] 1 NSWLR 317 The Premier of New South Wales conducted a news conference regarding a Royal Commission into allegations made on ABC television that the Premier had improperly intervened to have the then Chief Stipendiary Magistrate dismiss certain committal proceedings. At the news conference the Premier refused to answer questions asked by the plaintiff, an ABC journalist who had been engaged in day-to-day reporting of the Royal Commission, saying that the plaintiff had displayed personal malice in his reports and had not been objective. The remarks were widely republished throughout Australia on television and radio and in the press. 171

172 173 174 175

See, for example, Sands v Channel Seven Adelaide Pty Ltd [2010] SASC 202; Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679; cf Stern v Piper [1997] QB 123 (one-sided repetition without any surrounding words that might have had the effect of dispelling or negating the defamatory sting). “Truth” (NZ) Ltd v Holloway [1960] 1 WLR 997; McCauley v John Fairfax & Sons Ltd (1933) 34 SR (NSW) 339. Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43; John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77. Channel Seven Adelaide Pty Ltd v S, DJ (2006) 94 SASR 296. Speight v Gosnay (1891) 60 LJQB 231 at 232; Whitney v Moignard (1890) 24 QBD 630 at 631.

[3.460] 61

Australian Media Law Sims v Wran cont. It was held in the Supreme Court of New South Wales that where a prominent politician makes a statement at a press conference, it may be taken without doubt that the natural and probable result of his or her act will be that his or her statement will be republished in the media, thereby making him or her responsible for that republication, usually in whatever form in which that republication takes place.

[3.470] The plaintiff is required in such a case to plead each republication as a separate paragraph in his or her statement of claim, to enable the defendant to plead to it whatever defence may be appropriate. 176 Also, in judging whether, for example, the republication was intended or the natural and probable result of the original publication, it is necessary for the jury to consider the extent to which the published matter corresponded with the original publication. The mere furnishing by one person of some of the materials used by another in the preparation of a defamatory story does not constitute a publication of it by the former, if when printed or broadcast, the story as a whole is something very different from the material furnished. 177 It seems that liability may be imposed on this basis where a freelance journalist writes an article containing defamatory material and submits it to a newspaper for publication. 178 It may also apply where an informant provides information that forms the basis of a story 179 or where material produced by a media organisation is supplied for republication by other media organisations. 180

Place of publication [3.480] A television or radio broadcast is published in each place in which it is seen or heard. 181 A newspaper or magazine is published in each place in which it is made available to the public 182 and material on the internet is published in each place it is viewed by a browser. 183 In such cases of multiple publication, the uniform defamation legislation provides that “the substantive law applicable in the Australian jurisdiction with which the harm occasioned by the publication as a whole has its close connection” must be applied to determine each cause of action. 184

176

178

Sims v Wran [1984] 1 NSWLR 317 at 320; Thiess v TCN Channel Nine Pty Ltd [1994] 1 Qd R 156 at 195 (CA). Thiess v TCN Channel Nine Pty Ltd [1994] 1 Qd R 156 at 195 (CA), citing Howland v Blake Manufacturing Co 156 Mass 543; 31 NE 656 (1892). Walker (1989), p 149.

179 180 181 182

Cf Thiess v TCN Channel Nine Pty Ltd [1994] 1 Qd R 156 (CA). Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574. Gorton v Australian Broadcasting Commission (1973) 22 FLR 181. McLean v David Syme & Co Ltd (1970) 92 WN (NSW) 611.

183 184

Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575. DA: s 11(2); ACT: s 123(2); NT: s 10(2). See [3.40].

177

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Parties Who may sue Living persons [3.490] An action for defamation may be brought by any living person. However, since reputation is treated as personal to the plaintiff, an action for defamation commenced by a plaintiff comes to an end with his or her death 185 and does not survive for the benefit of his or her estate in all jurisdictions except Tasmania. 186 No action lies for defamation of the dead. Relatives or friends of a deceased person may only sue where a defamatory statement primarily concerning the dead person also involves a slur on those relatives or friends. 187

Bankrupts [3.500] A person who is bankrupt is entitled to bring an action for defamation, regardless of whether the imputation was published before or after the bankruptcy. 188 The action is personal to the bankrupt: neither it nor any damages that may be awarded vest in the trustee in bankruptcy. 189 The trustee does not have standing to bring an action even where the imputation is the reason for the bankruptcy. 190

Partnerships [3.510] A partnership may sue jointly for defamation where the imputation refers to the firm as a whole. 191 However, where the imputation only refers to an individual partner, only he or she may sue.

Corporations [3.520] Generally speaking, under s 9 of the uniform defamation legislation corporations now do not have a cause of action for defamation. 192 However, there is an exception in s 9(2) where the corporation is an “excluded corporation” that is: (a)

a corporation employing fewer than 10 persons not related to another corporation; or

185 186

Calwell v Ipec Australia Ltd (1976) 135 CLR 321 at 335. DA: s 10; cf Administration and Probate Act 1935 (Tas), s 27. In order to accommodate this statue, s 10 of the is intentionally blank to preserve conformity in the numbering of sections with the Defamation Acts in other jurisdictions.

187 188 189 190

Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536. Bankruptcy Act 1966 (Cth), s 60(4). Re Wilson; ex parte Vine (1878) 8 Ch D 364. Howard v Crowther (1841) 8 M & W 601.

191 192

Smith v McQuiggan (1863) 2 SCR (NSW) 268. ACT: s 121; NT: s 8.

[3.520] 63

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(b)

a corporation whose objects do not include obtaining financial gain for its members or corporators – that is, a not-for-profit corporation – which is not a public body. 193

For these purposes part-time employees are taken into account as an appropriate fraction of the full-time equivalent. It has been held that while it is true that the verb “employs” may have a range of meanings, the use of the word “employees” when referring to “part time employees” means that the intent of the section is clear and unequivocal: the reference to “person” in s 9(2)(a) is limited to persons having contracts of employment. 194 The onus of demonstrating that the exception applies rests with the plaintiff. 195 It is therefore incumbent on a plaintiff to plead the facts and matters necessary to show that it has a cause of action, that is, that it is an “excluded corporation” under the Act. 196

Trade unions and unincorporated associations [3.530] A trade union may also bring an action with respect to allegations concerning the way in which it conducts its affairs. 197 By contrast, an unincorporated association, such as a social, sporting or charitable club or society, which has not become registered under the relevant State or Territory Associations Incorporation Act has no legal personality and, therefore, cannot sue for defamation. 198 Indeed, defamatory matter published about the club or society may not be sufficiently identifiable with office bearers of the club to give them a right to sue. 199

Elected bodies [3.540] It has been held that a popularly elected local authority, or local council, is unable to maintain an action for defamation of itself. Indeed the same observations may be no less applicable to a department of government. This is because in a democracy, people are encouraged to express their criticisms of elected governmental institutions in the expectation that this process will have the effect of improving the quality of the government. The fact that the institutions are democratically elected is supposed to mean that through a process of political debate and decisions citizens in a community govern themselves. It would be antithetic to such concepts if the elected government institution were able to invoke the law of defamation in order to preclude criticism of it. 200 However, if the reputation of any one person is wrongly impaired by the publication, that person may bring proceedings for defamation. Thus while a Council, parliament or public authority cannot sue for defamation, any individual 193

A “public body” is a local government body or other governmental or public authority.

194 195 196

Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369 at [104]. Heartcheck Australia Pty Ltd v Channel 7 Sydney Pty Ltd [2007] NSWSC 555 at [6]. Edward Brewer Homes Pty Ltd v Home Builders Australia Pty Ltd [2010] WASC 257 at [15].

197 198 199 200

National Union of General & Municipal Workers v Gillian [1946] KB 81; Willis v Brooks [1947] 1 All ER 191. Cother v John Fairfax and Sons Pty Ltd (1947) 64 WN (NSW) 154. Cother v John Fairfax and Sons Pty Ltd (1947) 64 WN (NSW) 154. Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 690-691 (per Gleeson CJ); 710-711 (per Kirby P), applying Derbyshire County Council v Times Newspapers [1993] AC 534.

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councillor, member of parliament, or public servant or appointee of the public authority sufficiently identified by the published matter is entitled to sue in his or her own right. 201 This approach is consistent with the implied constitutional freedom of communication concerning government and political matters. 202 Nevertheless, a popularly elected local government authority may take action for injurious falsehood, an action which requires the plaintiff to prove that the defendant maliciously published a false statement about or affecting the plaintiff, where actual damage results. 203 This principle does not require an electoral nexus between the critic and the plaintiff. Accordingly, it has been held that the same principle prevented an Aboriginal Land Council from suing for defamation by a Sydney radio announcer. Such Councils were established under the relevant Act as a system of local government for Aborigines who reside in a Council area. They were held to be sufficiently analogous to a local government corporation. 204

Who may be liable Living persons [3.550] A cause of action for defamation can only be asserted, continued or enforced against a living person. In almost all jurisdictions where a person has died since publishing a matter, any cause of action against him or her dies with him or her. 205

Contribution to publication [3.560] Every person who contributes to the publication of defamatory material, regardless of the precise degree of involvement, or who authorises it, is liable. 206 In the case of a newspaper or magazine article, this may include the author, editor, publisher, printer, proprietor, distributor and even news vendors on the streets. In the case of a radio or television broadcast, it may include the journalist, the editor, the producer, the executive producer, and the proprietor. This liability is joint and several. 207 Under normal principles of tort law, media employers will also be vicariously liable for the acts of their employees which are expressly or impliedly authorised, or which are performed in the course of their employment. Any proceedings against different contributors to the same publication must be in the one proceeding since the damage will be the same and they will be regarded as joint tortfeasors. 208 Accordingly, it would be an abuse of process to, for example, bring separate

201 202

Ballina Shire Council v Ringland (1994) 33 NSWLR 680. Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 688-689 per Gleeson CJ, 709-710 per Kirby P.

203 204 205 206

Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 693-694 per Gleeson CJ, 733 per Mahoney JA. New South Wales Aboriginal Land Council v Jones (1998) 43 NSWLR 300. DA: s 10(b); ACT: s 122(b); NT: s 9(b). Cf Administration and Probate Act 1935 (Tas), s 27. Webb v Bloch (1928) 41 CLR 331 at 363-364.

207 208

Webb v Bloch (1928) 41 CLR 331 at 359; Thiess v TCN Channel Nine Pty Ltd [1994] 1 Qd R 156 at 194. Fairfax Media Publications Pty Ltd v Cummings [2013] ACTCA 37 at [84].

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proceedings against the journalist, the publisher and any other persons who have together engaged in publishing the same allegedly defamatory matter. 209 Liability for participating in the publication may also extend to include press agencies, advertisers, freelancers, 210 and the distributor of packaged subscription television services. Moreover, it has already been noted that by virtue of the law concerning republication, a newspaper may be liable for statements made in letters to the editor and a radio or television station may be liable for statements made in an interview or talkback programme, even where the views expressed by the original statement makers are not adopted. Where, on the other hand, the republication is in the form of one corporate entity republishing material published by another corporate entity belonging to the same publishing group, but not in exactly the same terms, the defendants will not be regarded as joint tortfeasors but instead successive tortfeasors because the damage that may be suffered from the publications by the two defendants will not be the same. 211 Liability for publication may arise in situations in which there has been a failure to act to prevent or terminate a publication by another, as in Byrne v Deane 212 where a club failed to remove a defamatory notice pinned on one of its notice boards by an anonymous member and was consequently regarded as itself having published the defamatory material. A clear parallel may today be drawn to the operator of a website or, online forum board who allows defamatory material to remain posted on the website or online forum despite being notified of its presence. 213 The degree of editorial control exercised over the website or online forum may be significant. 214 If the party controlling a website chooses to conduct an open anonymous forum available to the world, such as those commonly found on news media websites, without any system for scrutinising what is posted, then that party will be regarded as being no different from publishers of other media. 215 By failing to remove or obliterate the defamatory matter as soon as practicable, the party controlling the site may be deemed to have assumed responsibility for its continued presence in the place in which it has been posted. 216 Thus, for example, the operator of a website that hosts blogs subject to its terms, including the right to remove or block access to any blog that does not comply with those terms, may be regarded as a publisher of material appearing in those blogs if it does not 209

Age Co Ltd v Beran [2005] NSWCA 289; Fairfax Media Publications Pty Ltd v Cummings [2013] ACTCA 37.

210 211

Fleming (9th ed, 1998), p 594. Fairfax Media Publications Pty Ltd v Cummings [2013] ACTCA 37 at [79]-[85] (same story published in The Sydney Morning Herald and The Age but not in the same terms or to the same audience). Accordingly, each action would have a separate cap on damages rather than one cap being applied to both actions: see [3.1330]. Byrne v Deane [1937] 1 KB 818. Stratton Oakmont Inc v Prodigy Services Inc 1995 NY Misc LEXIS 229. Cubby Inc v CompuServe Inc 776 F Supp 135 (SDNY) (1991) where the lack of editorial control was an important factor in not holding the company that maintained the bulletin board liable for material posted on it.

212 213 214 215 216

Silberberg v Builders Collective of Australia Inc (2007) 164 FCR 475. Godfrey v Demon Internet Ltd [2001] QB 201 at 208-209 (ISP with actual knowledge that defamatory material had been posted on its bulletin board was held liable).

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remove defamatory comments within a reasonable time of receiving notice of them. 217 Such a party may be regarded as publishing the posting whenever and wherever anyone accesses the website or online forum containing it. 218 However, it may be necessary in such cases to show that the party controlling the site was aware, or at least ought reasonably to have been aware, that defamatory material would be likely to be published from time to time on the website. 219 A similar position may pertain to internet search engines. In an English decision it was held that a publisher must be shown to be knowingly involved in the process of communication, but in the case of automated search engines such as Google it was not possible to draw the necessary inferences of intention. They instead have been regarded as merely playing a passive, instrumental role in the process. 220 An analogy was drawn to the position of internet service providers (ISPs), which had previously been regarded as serving a merely passive role in facilitating postings rather than hosting websites and therefore were not to be deemed a publisher at common law, any more than a telephone company which merely facilitates a conversation containing defamatory content. 221 However, differing views have been expressed in Australia about the status of search engines, at least in relation to the time prior to notification. In the New South Wales case Bleyer v Google Inc LLC 222 McCallum J held that there was no human input in the application of the Google search engine apart from the creation of the algorithm, and agreed with the English line of authority that the function of the algorithm was not capable of establishing liability as a publisher at common law. By contrast, in the earlier Victorian case Trkulja v Google (No 5) 223 Beach J held that while such search engines were automated, they were the consequence of computer programs, written by human beings, which programs were doing precisely what the owners of the search engines and their employees intended and required them to do. 224 The point of disagreement may be relevant only in relation to claims relating to the period prior to notification. 225 Beach J held that factual differences aside, to the extent that the English decisions suggested that search engines and ISPs in principle only serve passive 217

Tamiz v Google Inc [2013] EWCA Civ 68 at [34].

218 219

Godfrey v Demon Internet Ltd [2001] QB 201 at 208-209. Robertson v Dogz Online Pty Ltd [2010] QCA 295 at [36]. See also ACCC v Allergy Pathway Pty Ltd (No 2) (2011) 192 FCR 34; [2011] FCA 74 at [33] where a company was held to have assumed responsibility for material in contempt of court which was posted by members of the public on its Facebook and Twitter pages. Metropolitan International Schools Ltd v Designtechnica Corp [2011] 1 WLR 1743 at [53] (EWHC) per Eady J. See also, which to the effect that hyperlinks (absent endorsement) do not constitute publication of the linked content by the person on whose webpage they appear.

220

221

222 223 224 225

Bunt v Tilley [2006] 1 WLR 1243 (EWHC) per Eady J. Cf Zeran v American Online Inc 129 F 3d 327 (4th Cir 1997) (immunity of ISPs under the Communications Decency Act 1996 (US), s 230 for wrongs committed by their users). See further the discussion of innocent dissemination in [3.1250]. Bleyer v Google Inc LLC (2014) 311 ALR 529 at [83]. Trkulja v Google (No 5) [2012] VSC 533. Trkulja v Google (No 5) [2012] VSC 533 at [27]. As McCallum J considered in Bleyer v Google Inc LLC (2014) 311 ALR 529, whereas Beach J in Trkulja v Google (No 5) [2012] VSC 533 was determining a case involving a search engine that had been notified of defamatory material.

[3.560] 67

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roles and therefore could not be regarded as a publisher they were inconsistent with well-established principles which have formed the basis for liability in the case of newsagents and libraries, as well as those cases like Byrne v Deane 226 where someone with power to remove a defamatory publication chooses not to do so in circumstances where an inference of consent can be drawn. For that reason they do not represent the common law in Australia, 227 where it has long been accepted that the law of defamation has never required a conscious intention to defame and the notion that conduct of a passive nature cannot amount to publication has been rejected. 228 Instead, the question will be: Whether, after relevant notice, the failure of an entity with the power to stop publication and which fails to stop publication after a reasonable time, is capable of leading to an inference that that entity consents to the publication. Such an inference is clearly capable of being drawn in the right circumstances … Further, if that inference is drawn then the trier of fact is entitled (but not bound) to conclude that the relevant entity is a publisher. 229

A similar position has now been effectively adopted for operators of websites in the United Kingdom following the enactment of the Defamation Act 2013 (UK), s 5. This section provides that the operator of a website has a defence where it can show that it was not the operator who posted a defamatory statement on the website, unless the identity of the person who posted the statement cannot be identified, and the operator has been given notice of the statement and failed to respond to that notice in the time and manner to be stipulated by regulations. By contrast, the Supreme Court of Canada has held that hyperlinks without endorsement do not constitute publication of the linked content by the person on whose web page they appear. This was held to be the case even though the person who owned the website was notified that the content to which it linked contained defamatory matter. 230 In other respects, however, the internet poses difficult challenges for the law of defamation. The ability of some to anonymously “hack” into systems and perhaps alter existing matter or introduce new matter, including inserting a link to another site, may easily result in defamatory imputations being conveyed without the victim being able to identify anyone to sue. Even if the victim were able to track down the offending computer in such a case, there is no guarantee that the actual miscreant who used that computer could be identified. 226 227

228

229

230

Byrne v Deane [1937] 1 KB 818. Trkulja v Google (No 5) [2012] VSC 533 at [29]. Cf Broadcasting Services Act 1992 (Cth) Sch 5 cl 9191 which provides that the common law has no effect the extent that it subjects internet content hosts an internet service providers to liability (whether criminal or civil) in respect of hosting content where the host was not aware of the nature of the content. See Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 81-127 per Hunt J (defendant Council notified that posters imputing that the plaintiff was a Nazi war criminal had been glued to its bus shelters and requested to remove them but failed to do so despite having the ability to do so – Council held to be a publisher of the material). Trkulja v Google (No 5) [2012] VSC 533 at [31]. A website operator or search engine held to be a publisher may also have difficulty relying on the defence of innocent dissemination because that defence requires proof that the defendant or not reasonably to have known of the matter are that it has disseminated and that such lack of knowledge was not due to any negligence on its part. See further [3.1250]–[3.1280]. Crookes v Newton [2011] 3 SCR 269.

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Resolution of disputes without litigation Introduction [3.570] Prior to development of a uniform approach to defamation, New South Wales and the Australian Capital Territory had introduced similar processes designed to facilitate resolution of defamation disputes without recourse to litigation. These processes were aimed at providing a means by which defamation claims could be resolved quickly and inexpensively, with a view to more effectively vindicating reputation. A regime based on these processes has now been adopted by the uniform defamation legislation, which makes provision for a system based on an offer to make amends and to facilitate the making of apologies without the risk of liability being admitted.

Offer to make amends [3.580] Under the uniform defamation legislation, an “aggrieved person” may send to a publisher a written “concerns notice” which advises the publisher of the defamatory imputations that the aggrieved person considers to be carried by the matter. 231 The legislation does not prescribe any particular formula for such a notice. It therefore need not necessarily be in the form of a formal lawyer’s document “pleaded with black letter precision” but may instead be a letter from the aggrieved person himself or herself, provided it conveys the substance of the alleged defamatory imputations and puts the defendant on notice that the aggrieved person feels hurt and requests genuine amends. 232 If the concerns notice fails to particularise imputations adequately, the publisher is entitled to give the aggrieved person a written “further particulars notice”, which must be complied with within 14 days. Otherwise, the publisher has up to 28 days to make a written offer to make amends, which must include: 233 • an offer to publish, or join in publishing, a reasonable correction; • if the material containing the matter was given to someone else by the publisher or with the publisher’s knowledge, and offered to take, or join in taking, reasonable steps to tell the other person that the matter is or may be defamatory of the aggrieved person; and • a offer to pay the aggrieved person’s expenses reasonably incurred before the offer was made and the expenses reasonably incurred by the aggrieved person in considering the offer. Presumably, this would include the costs of obtaining legal advice. The offer to make amends may include: 234 • any other kind of offer or particulars of any other action taken by the publisher to redress the harm sustained by the aggrieved person including but not limited to an offer to publish, or join in publishing, an apology; 231 232

DA: s 14(2); ACT: s 126(2); NT: s 13(2). Barrow v Bolt [2014] VSC 599 at [79].

233 234

DA: s 15; ACT: s 127; NT: s 14. DA: s 15; ACT: s 127; NT: s 14.

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• an offer to pay compensation for any economic or non-economic loss; • the particulars of any correction or apology made or action taken before the date of the offer. An offer to pay compensation may be in the form of a stated amount, an amount to be agreed or failing agreement as decided by a court, or as decided by a court. The offer to make amends may be limited to particular imputations and if so must particularise the imputation to which the offer is limited. The 28 day time limit serves to focus the publisher’s attention and help to ensure any settlement process takes place as quickly as possible. It may pose a problem, however, where a publisher wishes to make an offer of amends but finds itself out of time. 235 Accordingly, it is significant that the concerns notice may be constituted by a communication from the aggrieved person and need not be in a formal document prepared by lawyers since receipt of the notice starts the clock when determining the 28 day limit. In this connection, the publisher may be vulnerable if any concerns notice is first read by an employee who does not realise its significance and the urgency of the situation. Publishers will therefore be advised to implement systems that avert such a risk. An offer to make amends may be withdrawn at any time before it is accepted. A withdrawn offer may be renewed, in which case it is regarded as a new offer. In such a case the 28 day time limit does not prevent the making of a renewed offer that is not the same terms as the withdrawn offer if the renewed offer is a genuine attempt to address matters of concern raised by the aggrieved person about the withdrawn offer and is made within 14 days after the withdrawal or any other period agreed between the parties. 236 Where the offer is accepted and the publisher performs the amends agreement, the aggrieved person is precluded from commencing or continuing an action based on the publication. 237 Under s 18 if the offer is not accepted, it is a complete defence in any action if: • the publisher made the offer as soon as practical after becoming aware that the material is or may be defamatory; • the publisher was ready and willing to perform the terms of the offer; and, • the offer was reasonable in all the circumstances. 238 There is sparse authority that has considered the offer to make amends regime. In Pedavoli v Fairfax Media Publications Pty Ltd 239 McCallum J observed that the defence under s 18 serves the objects of the uniform defamation legislation, particularly the object of promoting speedy and non-litigious methods of resolving disputes “by creating a powerful incentive the 235 236

See, for example, Barrow v Bolt [2014] VSC 599. DA: s 16; ACT: s 128; NT: s 15.

237 238

DA: s 17; ACT: s 129; NT: s 16. DA: s 18; ACT: s 130; NT: s 17.

239

Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674.

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defendants to make amends rather than to fight the cause”. 240 Her Honour noted that “the making of a reasonable offer has the potential, one way or the other, to stymy the litigious path to indication of reputation”. 241 This was because if the offer is accepted the plaintiff cannot pursue the proceedings in court, but if it is rejected then if the offer was a reasonable offer there is a complete defence, even though the plaintiff might otherwise have an actionable defamation. Accordingly, while a defendant can apologise, in aid of the defence, with impunity, 242 a plaintiff who fails to accept a reasonable offer to make amends faces the “draconian sanction” of risking everything. 243 The mandatory requirement, in cases where the material containing the defamatory matter has been “given” to someone else, for the offer to include an offer to take, or join in taking reasonable steps to tell the other person that the matter is defamatory must be considered in the context of the section as a whole, including that which imposes a mandatory requirement to offer to publish, or join in publishing, a reasonable correction of the matter. 244 These two requirements evince an intention that in order to properly make amends a publisher must cooperate in the achievement of two objects – not only to publish a reasonable correction but also the identification of any other third parties to whom the material has been given. 245 The purpose of the second requirement is an acknowledgement that in order to properly make amends for having defamed someone a publisher must actively cooperate in stemming all of the harm done by the defamation, which in some cases may require more than merely publishing a correction to all of those to whom the publisher published the matter. 246 It is likely that the identity of all the people to whom the publisher has given the matter will only be known to the publisher, so that s 18 would not operate fairly if a defamed person was expected to consider an offer to make amends, at risk of losing his or her cause of action altogether by unreasonably rejecting it, without the means of knowing “how far the poison had spread”. 247 When considering whether the two mandatory requirements have been satisfied in an applicable case a distinction is drawn between the class of people to whom the defamatory matter was published, who would be caught by the offer to publish a correction, and others to whom the material was supplied to enable them to publish themselves. Example

Pedavoli v Fairfax Media Publications Pty Ltd [3.590] Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 240 241

Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 at [34]. Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 at [34].

242 243 244 245

See [3.630]. Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 at [34]. Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 at [41]. Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 at [41].

246 247

Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 at [44]. Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 at [45].

[3.590] 71

Australian Media Law Pedavoli v Fairfax Media Publications Pty Ltd cont. The Sydney Morning Herald published a story about a female teacher who resigned from a prestigious private school after allegations of having unlawful sexual misconduct with a number of boys. The journalist who wrote the article carelessly included incorrect information that identify the plaintiff as the teacher concerned. The article was featured on two pages of the newspaper, promoted as one of the “editors picks” on the newspaper website, was read by an estimated 1,155 people via a link sent via Twitter and was republished by the newspaper’s sister publication The Age newspaper in Melbourne. When alerted to the defamatory matter, the newspaper promptly removed the incorrect identifying words from the online version of the article. The newspaper also made an offer to make amends offered to publish an apology in substantially the terms requested by the plaintiff and offered to pay the plaintiff the sum of $50,000 and reasonable legal expenses. The plaintiff did not accept the offer on the grounds that it was not a valid offer for the purposes of the defence since it did not comply with the mandatory requirements of s 15, in particular because it failed to address the material that was “given to someone else” by being available for download via the tablet app, on Twitter and by being made available for publication in The Age. She also claimed that it was not reasonable in all the circumstances. McCallum J of the New South Wales Supreme Court held that people who downloaded the newspaper via the tablet app would not be regarded as people to whom the matter was “given”, but rather were within the class of people to whom the matter was published and therefore who ought to have been included in the offer to publish a correction. In relation to the Twitter followers, tweeting the link was more than merely an advertisement for the newspaper like a newsagent’s billboard since it allowed access to the article itself to a wider audience which is unlikely to overlap completely with those who buy or subscribe to the newspaper in its print or web based forms. There was no difficulty in finding that the newspaper could be said to have given the material to The Age by making the article available for publication. Both cases therefore fell within the ambit of the second mandatory requirement rather than the offer to publish a correction. Accordingly the offer to make amends was not a valid offer because it did not include the mandatory offer to take, or join in taking, reasonable steps to tell those other persons for the matter given to them was or may be defamatory.

[3.600] In deciding reasonableness for the purposes of the s 18 defence, the court will take into account all of the circumstances, but in particular any correction or apology that is published prior to trial, with special attention to its prominence compared to that of the original publication and the time between the two publications. This involves a temporal paradox, requiring the court to make a determination of whether the offer was reasonable in the circumstances as they existed at the time the offer was made but with a mandatory reference to a correction or apology published after the plea of failure to accept a reasonable offer or not. 248 A degree of pragmatism may need to be taken in relation to the time between the two 248

Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 at [75].

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publications. There may be good reasons behind a lengthy delay in making a correction or apology, including a delay in obtaining relevant evidence or in exchanging correspondence with the plaintiff. 249 The section places the burden on the defendant to show that in all the circumstances the offer was reasonable, rather than for the plaintiff to show how it was unreasonable. 250 A critical consideration when assessing the reasonableness of an offer will be its capacity to address the hurt and harm done by the publication, both in terms of its seriousness and its extent. 251 The prominence and reach of any apology warrant careful scrutiny. 252 Example

Pedavoli v Fairfax Media Publications Pty Ltd [3.610] Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 The Sydney Morning Herald published a story about a female teacher who resigned from a prestigious private school after allegations of having unlawful sexual misconduct with a number of boys. The story appeared under headlines that were likely to attract the attention of a large number of readers (“Female teacher quits top Catholic school after claim of sex with boys” and “Sex with student claims: female teacher quits top Catholic boys school”). The print version stretched over pages 2 and 3 of the newspaper and was visually stark. By contrast, the correction for incorrectly including information that identified the plaintiff was less gripping, published under the simple headline “apology”. On the website the apology was available for download via a link at the very bottom of the homepage headed “apology”. McCallum J of the New South Wales Supreme Court held that the prominence given to the apology was unequal to the prominence given to the matter that was subject to the complaint. The headline “apology” contained no words indicating the subject matter of the apology or the story to which it related, such as “apology to female teacher at Catholic school” or “correction of article on sex with boys”. The apology on the website was barely noticeable. In the case of such an apology the absence of any headlines such as to invite the attention of readers who had read the defamatory matter is all the more significant. The difference between the interest likely to have been generated by the headlines of the defamatory matter and the apology could scarcely be more stark. Further, there was no evidence that the apology was published to all of the audience of the defamatory matter. Even if the apology published in the printed newspaper and online was of sufficient prominence to reach roughly the same audience as the defamatory matter in those two forms of publication that was not the end of the issue so far as the tablet app was concerned. The evidence showed that there were over five 9000 unique page views and the defendant had failed to show that the apology had reached that audience. In addition, even if tweeting the link to the article on Twitter was

249 250

See, for example, Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674. Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 at [79].

251 252

Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 at [81]. Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 at [82]-[96].

[3.610] 73

Australian Media Law Pedavoli v Fairfax Media Publications Pty Ltd cont. regarded as publication rather than giving the defamatory matter to followers, no correction was tweeted to those followers and no step taken to tell them that the material was defamatory of the plaintiff.

[3.620] While the section states that if two or more persons published the defamatory material and often make amends by one does not affect the liability of the others, this does not mean that an employee of a publisher, such as a journalist or editor, is required to make a separate offer of amends in order to avail themselves of the s 18 defence, if a reasonable offer to make amends is not accepted. In such a case the offer made by the publisher should be construed as also extending on behalf of the publisher’s employees and agents. 253 The offer of amends regime is not without difficulty. As Gillooly points out, the absence of an “innocence” factor undermines the rationale of the defence, that is the accidental nature of the defamation. This may effectively provide a publisher with the ability to engage in scurrilous defamation and yet be exonerated by simply making a “reasonable” offer of amends. Further, there is no indication whether “reasonableness” is to be judged at the time of the offer, at the time of the trial or some other time, nor of the specific matters that are to be taken into account besides any correction or apology that has been made. 254

Apologies [3.630] It was previously the case that there was a positive disincentive for a publisher to apologise for publishing defamatory matter since such an apology could be construed as an admission of liability, although in most jurisdictions an apology could, for example, mitigate damages. This position has now been changed by the uniform defamation legislation. It is now expressly provided that an apology made by or on behalf of a publisher of defamatory matter does not constitute an express or implied admission of fault or liability and it is not relevant to the determination of fault or liability. Further, evidence of an apology is not admissible in any civil proceedings as evidence of fault or liability. 255 Moreover, an apology may still operate to mitigate damages awarded in respect of the defamatory matter. 256

253 254

Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 at [73]. M Gillooly, The Third Man: Reform of the Australasian Defamation Defences (2004), p 215.

255 256

DA: s 20; ACT: s 132; NT: s 19. See [3.1360].

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Defences Introduction [3.640] The law of defamation constitutes a substantial constraint on freedom of speech. As a consequence, the law seeks to strike a balance between the reputation of the individual, which it seeks to protect, and freedom of speech by recognising a number of defences to protect those who publish defamatory material. The uniform defamation legislation makes provision for nine defences. 257 In addition, the legislation preserves the operation of common law defences. 258

Justification [3.650] It has been noted that in all jurisdictions falsity is not an element which a plaintiff must prove in order to have a cause of action for defamation. However, s 25 of the uniform defamation legislation 259 adopts the common law position in allowing the substantial truth of the defamatory imputations to be pleaded as a complete defence. In essence the defence involves a “confession and avoidance” – admitting the imputations pleaded but avoiding liability on the grounds that those imputations are substantially true.

Motive [3.660] The publisher’s motive is irrelevant to the defence of justification. If the publisher can show that the imputation is true then it does not matter that he or she was motivated by malice. Similarly, if the publisher is unable to prove that the imputation is true, perhaps because a journalist wishes to protect his or her sources, then the fact that the publisher was acting with worthy motives on the basis of reasonable information will not serve to excuse the defendant. 260

All imputations to be justified [3.670] The publisher is required to justify all defamatory imputations in the publication. 261 If a publisher can only establish that one of two or more stings relied upon by the plaintiff was substantially true, the defence of justification fails but the evidence led to establish that defence may be relied upon in mitigation of damages. 262 Accordingly, the defendant must establish the truth not only of the natural and ordinary meaning of the material published, but also of any innuendo meanings which are pleaded. 257 258

DA: ss 25 – 33; ACT: ss 135 – 139D; NT: ss 22 – 30; SA: ss 23 – 31. DA: s 24(1); ACT: s 134(1); NT: s 21(1); SA: s 22(1).

259 260 261 262

ACT: s 135; NT: 22; SA: s 23. Crowley v Glissan (1905) 2 CLR 744. Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [306]. Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [158]. In relation to such “partial justification” see [3.1360]. In the United Kingdom this essential precept of the justification defence was

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This may mean that in practice the defence may in some circumstances not be an attractive one for the media, even where it is confident that the material published is correct. Thus, for example, a report that a person has been charged with an offence which also conveys the imputation that the person is guilty of the offence will not be justified simply by proof that the person was in fact charged. The defendant would be required to go on to also justify the imputation of guilt, a task which would require proof that the person was in fact guilty of the offence. 263 Similarly, where a publication conveys an imputation of suspicion of guilt, to establish the defence of justification the defendant is required to prove that the plaintiff was suspected by the police, with reasonable cause, of having committed the offence in addition to the conduct of the plaintiff which gave rise to the suspicion. 264 It is a prudent precaution for the media when reporting that a person had been charged with an offence to refrain from naming or otherwise identifying the person until the person has appeared in court, thereby removing one of the essential prerequisites for a cause of action for defamation. Once the accused has appeared in court, the media can rely on the defence of privilege in the fair reporting of judicial proceedings. 265 Substantial truth means that provided the justification meets the substance of the imputation, minor inaccuracy will not exclude the defence. It has been held, for example, that to say that a plaintiff had been sentenced to a fine with an alternative of three weeks imprisonment was justified by showing that the alternative jail term was in fact two weeks. 266 Similarly, if the publisher states that the plaintiff stole a car from the garage of a house and sold it the following day, the sting of the defamatory matter may still be justified if the true facts were that the plaintiff stole the car not from the garage but from the driveway and did not sell it the next day but a week afterwards. The mistakes in such a case would make no substantial difference to the quality of the alleged defamation or in the justification pleaded for it. By contrast, if the publication stated that the plaintiff took the car and thereafter sold it, but the true facts were that the plaintiff was acting under the mistaken belief that the car’s owner had authorised him or her to sell the car on his or her behalf, then while the statement that the plaintiff had taken the car and sold it may be meticulously true in fact, it will nevertheless be false in substance and therefore not be justified. 267

264 265

abolished by Defamation Act 2013 (UK), s 2 and replaced by a defence of truth, which provides that if one or more of the imputations is not shown to be substantially true the defence does not fail if, having regard to the imputations which are shown to be substantially true, the imputations which are not shown to be substantially true do not seriously harm the claimant’s reputation. Lewis v Daily Telegraph [1964] AC 234; Mirror Newspaper v Harrison (1982) 149 CLR 293 at 302; Sergi v ABC [1983] 2 NSWLR 669 at 676-679; Lang v Australian Consolidated Press Ltd [1970] 2 NSWR 408 at 415. The uniform defamation legislation now provides that proof that a person was convicted of an offence by an Australian court is conclusive evidence that the person committed the offence, and proved that a person was convicted of an offence by a court of any country or court martial is evidence that the person committed the offence. Further, the contents of a document that is evidence of conviction of an offence and the contents of an information, complaint, indictment, charge sheet or similar document are admissible in evidence to identify the facts on which the conviction is based: DA: s 42; ACT: s 139M; NT: s 39; SA: s 40. Sands v Channel Seven Adelaide Pty Ltd [2010] SASC 202 at [31]. A Smith, “Publish and be damned” (1987) 61 LIJ 914 at 917. In relation to this defence see [3.800]–[3.850].

266 267

Alexander v North Eastern Railway Co (1865) 6 B & S 340. Cf the saddle example proposed by Lord Shaw in Sutherland v Stopes [1925] AC 47 at 79.

263

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The media may be liable for defamation where it republishes a defamatory rumour since such a publication would carry with it the innuendo that there may be substance to the rumour. 268 In such a case, the defendant would be required to show not only that it had accurately reported what another person had said, but also that the substance of the rumour was true. 269 The publisher obtains no protection in this regard by prefacing its remarks with words such as “it is rumoured that”, “I have heard that” or “it has been said that”. Not even a statement that the publisher does not believe that the rumour is true will relieve him or her from liability, 270 although in an appropriate case where an imputation is repeated but then entirely refuted, such that the antidote is equal to the bane, the publication may be discharged of its defamatory sting. 271

Publications containing both fact and opinion [3.680] Where a defendant publishes an opinion which is defamatory, he or she will usually rely on the defence of fair comment or honest opinion. 272 However, where a publication contains defamatory statements both of fact and of opinion, if the defendant wishes to plead justification he or she must prove both that the statements of fact are true and that the statements of opinion are “correct”. 273 While opinions may be thought of as individually-held beliefs, and in that sense incapable of being proven true or false, it seems that the defence of justification will be made out where the comment is accurate, that is actually justified by, in the sense of being naturally implicit in, the facts which are stated and which can be proved to be true. 274 In other words, the defendant must show that the facts warrant the imputation in the sense of being a conclusion which any reasonable person would draw from those facts. 275 In an appropriate case, evidence of facts which occurred within a reasonable time after the publication and which go to show the existence of an alleged tendency may be admitted. 276 The elements of the defence of justification and the fair comment/honest opinion defence are different. While a finding that the imputation involves a comment which is shown to be correct would be sufficient by way of a defence of justification it would not necessarily satisfy the defence of fair comment/honest opinion. For example, a defendant who does not honestly hold the opinion will not be able to rely on the defence of fair comment/honest opinion whereas the state of mind of the defendant is irrelevant to the defence of justification. 277 268

Watkin v Hall (1868) LR 3 QB 396 at 403.

269

Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43 at 49-50; “Truth” (NZ) Ltd v Holloway [1960] 1 WLR 997 at 1002. Savige v News Ltd [1932] SASR 240; McCauley v John Fairfax & Sons Ltd (1933) 34 SR (NSW) 339 at 346. See also Heerey (1985) 59 ALJ 371 at 371.

270 271 272

See [3.240]–[3.280]. See [3.1110]–[3.1120].

273 274 275

Sutherland v Stopes [1925] AC 47 at 62-63, 75. Goldsbrough v Fairfax (1934) 34 SR (NSW) 524 at 530. Hunt v Star Newspaper Co Ltd [1908] 2 KB 309 at 320.

276 277

Maisel v Financial Times Ltd [1915] 3 KB 336. Trad v Harbour Radio Pty Ltd [2011] NSWCA 61 at [56].

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The “Polly Peck” defence Imputations with a common sting [3.690] Where a publication contains two or more separate and distinct defamatory imputations, the plaintiff is entitled to select one for complaint and the defendant is not entitled to assert the truth of others by way of justification. 278 Thus, if the publication conveys imputations X, Y and Z, the plaintiff may seek to sue only in respect of imputation X and it is irrelevant that the defendant could justify imputations Y and Z. If a defendant was to say of someone that he or she murdered his or her father, stole from his or her mother and kicks his or her dog, which statement forms the basis of a defamation action complaining only of the allegation that he or she kicks his or her dog, the defendants cannot seek to justify the major charges of murder and theft because the plaintiff has not complained of them. 279 Whether a defamatory imputation is separate and distinct from other defamatory imputations contained in the publication is a question of fact and degree in every case. It may be that several defamatory allegations in their context have a common sting, in which event they are not properly regarded as separate and distinct allegations. A Polly Peck defence entitles the defendant to justify only the common sting, and need not justify each of the allegations made in the publication, or even series of publications. 280 Such a defence might be appropriate where, for example, a publication alleges that the plaintiff engaged in affairs with a number of named men, with a common sting of promiscuity. Proof that the plaintiff had in fact engaged in a number of affairs would be sufficient, notwithstanding that the defendant may not be able to prove the allegation of the particular affair about which the plaintiff complains. 281 It also follows that where several allegations have a common sting, slight inaccuracies of detail which do not affect the substance of the charge will not prevent the defence being successful. 282

Polly Peck in Australia and the Hore-Lacy defence [3.700] Attitudes to the Polly Peck defence in Australian courts have been mixed. The defence was accepted or assumed to be available in several jurisdictions. 283 However, it was

278 279 280

Polly Peck (Holdings) Plc v Trelford [1986] QB 1000 at 1032. Speidel v Plato Films Ltd [1961] AC 1090 at 1142. Polly Peck (Holdings) Plc v Trelford [1986] QB 1000 at 1032. The same reasoning applies equally to the defence of fair comment. In Australia, the epithet “Polly Peck defence” is sometimes also used to describe a defence where the defendant denies the plaintiff’s meaning and seeks instead to justify another meaning. In England such a defence is instead called a “Lucas-Box defence” after Lucas-Box v News Group Newspapers [1986] 1 WLR 147 (plaintiff alleging article imputed that she knowingly assisted Italian terrorists or was reasonably suspected of doing so – defendant permitted to seek to justify imputation that the plaintiff associated with various Italians); see the discussion of these defences in Kenyon (2006), pp 80-87.

281 282 283

See Khashoggi v IPC Magazines Ltd [1986] 1 WLR 1412 at 1417. Potts v Moran (1976) 16 SASR 284 at 306; Walker (1989), p 171. See, for example, Victoria: Kennett v Farmer [1988] VR 991; Carrey v ACP Publishing Pty Ltd [1999] 1 VR 875 esp at 885-886; South Australia: Jakado Pty Ltd v SA Telecasters Ltd (1997) 69 SASR 440; Western Australia: Gumina v Williams (No 2) [1990] 3 WAR 351 (FC) but note Wallace v Wallace [2001] WASC 134; Australian Capital Territory: TWT Ltd v Moore (1991) A Def Rep 51,030; Woodger v Federal Capital Press of

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strongly criticised in Chakravarti v Advertiser Newspapers Ltd 284 by Brennan CJ and McHugh J, who regarded it as contravening the fundamental principles of pleading by enabling the defendant to allege a different meaning from that relied upon by the plaintiff. This may result in the introduction of evidence that will increase the length of the trial, may tend to cloud the issues and work to the prejudice of the plaintiff. Their Honours thought that it was apt, therefore, to raise “a false issue which can only embarrass the fair trial of actions”. 285 It was suggested in the Victorian Court of Appeal in David Syme & Co Ltd v Hore-Lacy 286 that the criticisms raised by Brennan CJ and McHugh J may be addressed if the defendant were limited to justifying a meaning on which the plaintiff might himself or herself have succeeded at trial on the pleadings as they are. It was once the case at common law that the plaintiff sued on the publication and could succeed on any defamatory meaning the publication could bear. When it became the norm for the plaintiff to be required to plead the meaning he or she was relying upon, he or she could not seek a verdict on a different meaning. However, it was recognised that due to the fact that the plaintiff sued on the publication, and at common law the trier of fact was still not constrained to find for the plaintiff on the meanings he or she particularised, there was an exception where a plaintiff could rely on a different meaning which was a mere shade or nuance of, and not different in substance from, that pleaded. Accordingly there should be no unfairness if the defendant were allowed to rely on a meaning not pleaded by the plaintiff only if it is only a shade or nuance of, and not different in substance from, the pleaded meaning. 287 This approach is much narrower than a Polly Peck defence interpreted to mean that there is latitude for a defendant to plead, at whatever level of abstraction, that there is a common sting to the imputations which can be justified by evidence not bearing directly on the matter of which the plaintiff complains. 288 A defence based not on justifying a common sting as permitted by a Polly Peck defence but instead on denying the meanings pleaded by the plaintiff and justifying nuances or shades of the meaning pleaded by the plaintiff is referred to as a Hore-Lacy defence. The Hore-Lacy defence has been held to have

284 285

286 287

288

Australia Pty Ltd (1992) 107 ACTR 1; Northern Territory: Hart v Wrenn (1995) 5 NTLR 17; 124 FLR 135. The defence previously had no application in New South Wales where each imputation was regarded as giving rise to a separate cause of action, so that it could not be said that there was a common sting to imputations in the publication: Defamation Act 1974 (NSW), s 9 (now repealed) but see Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89 at 100. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 527-528; followed in Robinson v Laws [2003] 1 Qd R 81; cf Gaudron and Gummow JJ who have been interpreted as assuming that the defence was available ((1998) 193 CLR 519 at 543-546): see Advertiser-News Weekend Publications Co Ltd v Manock (2005) 91 SASR 206 at 216. David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667. David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667 at [53]-[54] per Charles JA. Callaway JA also took a narrower view than Polly Peck. Charles JA’s view was approve in substance by Anderson J in Nationwide News Pty Ltd v Moodie (2003) 28 WAR 314 at [13]-[14], while Steytler J’s approach was similar to that of Charles JA under the guise of allowing Polly Peck to be pleaded. McLure J took a similar approach. In Advertiser-News Weekend Publications Co Ltd v Manock (2005) 91 SASR 206 the Full Court of the Supreme Court of South Australia approved Charles JA’s approach. Advertiser-News Weekend Publications Co Ltd v Manock (2005) 91 SASR 206 at 220. See also Robinson v Laws [2003] 1 Qd R 81.

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survived the enactment of the uniform defamation legislation 289 and has been described by the Victorian Court of Appeal as “soundly principled and [a] very useful expression of the common law of defamation”. 290 It represents a departure from what was said in Polly Peck and substantially confines the ability of the defendant to plead meanings other than those pleaded by the plaintiff. 291 It has been subsequently applied in other jurisdictions, 292 although a 2-1 majority of the New South Wales Court of Appeal held that since the Uniform Civil Procedure Rules 2005 (NSW) required all defences to be pleaded with respect to particular imputations, defendants were not permitted to plead their own, different versions of imputations (even if they were not substantially different). 293 As a consequence it was held that the Hore-Lacy defence did not apply in that State but was confined to jurisdictions like Victoria where procedure rules meant that plaintiffs were not strictly bound by pleaded imputations, so that defendants were allowed to plead their own versions of the imputations. 294 Three years later a differently constituted Victorian Court of Appeal in Herald & Weekly Times Ltd v Popovic 295 appeared to soften this stance on the Polly Peck defence. Deflecting the criticism by Brennan CJ and McHugh J, it was held that the Polly Peck defence was a proper defence in Australia, although “a rare animal and not often available”. 296 It was considered appropriate where first the plaintiff does not plead the proper imputations arising from the words complained of and forming the basis of the plaintiff’s case, and secondly, where there is a common sting which is not separate and distinct from the way the plaintiff has pleaded his or her case. Justice and fairness to both parties were thought to require the defence where a defendant intended to plead justification in relation to meanings conveyed by the words about which the plaintiff was complaining. Nevertheless, courts were to be vigilant that a claimed Polly Peck defence was proper and permissible. The defence is not available as a partial justification, nor where there was a separate and distinct defamatory imputation 289 290 291

Setka v Abbott [2014] VSCA 287 at [93]-[116]; [302]-[312]. Setka v Abbott [2014] VSCA 287 at [68]. David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667 at [63] per Charles JA; Setka v Abbott [2014] VSCA 287 at [58].

292

See, for example, Nationwide News Pty Ltd v Moodie (2003) 28 WAR 314; West Australian Newspapers Ltd v Elliott (2008) 37 WAR 387; Advertiser-News Weekend Publications Co Ltd v Manock (2005) 91 SASR 206; John Holland Group Pty Ltd v John Fairfax Publications Pty Ltd (2006) 204 FLR 290 (ACTSC); Hart v Wrenn (1995) 5 NTLR 17; 124 FLR 135; see also Snedden v Nationwide News Pty Ltd [2011] NSWCA 262; Besser v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174.

293

Fairfax Media Publications Pty Ltd v Bateman [2015] NSWCA 154 at [164] per Basten JA, Macfarlan JA agreeing. Fairfax Media Publications Pty Ltd v Bateman [2015] NSWCA 154 at [189]-[194] per Basten JA, Macfarlan JA agreeing. McColl JA dissented on the ground that the Hore-Lacy pleading avoided trial by ambush because it put the plaintiff on notice of the meanings the defendant would be contending at trial were not substantially different from those raised by the plaintiff and which the defendant claimed to be substantially true: at [100]. Moreover his Honour thought that the trial judge erred in striking out the Hore-Lacy pleading in this case because she was bound to follow its approval by the intermediate appellate courts of other States of Australia, particularly in the context of the enactment of uniform defamation legislation: at [77], [110].

294

295 296

Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1. Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [301] per Gillard AJA with whom Winneke ACJ and Warren AJA agreed.

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not relied upon by the plaintiff which is not inextricably bound up with the way the plaintiff has pleaded the imputations. 297 Elsewhere some courts in New South Wales have opined that the Polly Peck defence is not part of the common law of Australia, 298 while courts in others jurisdictions have suggested that it is still available. 299 Accordingly, the position regarding the Polly Peck defence is in a state of flux. State appellate court authority is divided on whether to support, read down or reject the defence, while there was a lack of a clear majority on the point in Chakravarti. The enactment of uniform defamation legislation has not altered this position. The final fate of Polly Peck in this country awaits a clear decision of the High Court.

Contextual truth [3.710] At common law the plaintiff is entitled to choose which of a number of imputations to rely upon, perhaps ignoring some other more serious allegation because the defendant may be able to justify it. 300 This situation is addressed by s 26 of the uniform defamation legislation 301 with a defence of “contextual truth”. This section allows a defendant in such a case to raise and justify the more serious imputation in order to establish that the plaintiff’s reputation has not actually been damaged as alleged by the plaintiff in seeking to confine the complaint to the less serious imputation selected by him or her. 302 The defence of contextual truth under the uniform defamation legislation requires the defendant to show two elements: (a)

that the published matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations – which are known as contextual imputations – that are substantially true; and

(b)

that the defamatory imputations which the plaintiff complains do not further harm of the plaintiff’s reputation because of the substantial truth of the contextual imputations. 303

A contextual imputation must differ in substance from the plaintiff’s imputations. 304 An ordinary reasonable person must have understood the matter complained of as having conveyed at the same time both the imputations relied upon by the plaintiff and the contextual imputations 297

Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [324].

298

John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 at [42] per Handley JA; Hitchcock v John Fairfax Publications Pty Ltd [2007] NSWSC 7 at [60] per Nicholas J; Snedden v Nationwide News Pty Ltd [2011] NSWCA 262 at [152]. See, for example, West Australian Newspapers Ltd v Elliott (2008) 37 WAR 387; Li v Herald & Weekly Times Pty Ltd [2007] VSC 109; Caccavo v Daft [2006] TASSC 36 at [14]-[15]; Madden v Seafolly Pty Ltd [2014] FCAFC 30. Plato Films Ltd v Speidel [1961] AC 1090 at 1142.

299

300 301 302 303 304

ACT: s 136; NT: s 23; SA: s 24. Wookey v Quigley [2009] WASC 284 at [62]. Cf the contextual truth defence that previously existed in New South Wales (Defamation Act 1974, s 16(2)) and Tasmania (Defamation Act 1957, s 18). Ange v Fairfax Media Publications Pty Ltd [2011] NSWSC 204 at [27].

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relied upon by the defendant. 305 A contextual imputation will not be permitted if it is merely an alternative formulation of the plaintiff’s imputation (such as pleading a contextual imputation related to the same class of misconduct but in more general terms) 306 or if its defamatory sting is the same as the defamatory sting of the plaintiff’s imputation. 307 There must be a difference in kind. Whether is more than one imputation relied upon by the plaintiff, it is necessary to consider all of the imputations separately and in combination to determine whether there is a contextual imputation that is carried in addition to them. 308 That said, no different from the determination of whether the plaintiff’s imputations are capable of being defamatory, determination of a defendant’s contextual imputation is an “exercise in generosity not parsimony”. 309 Nevertheless, alleged contextual imputations will be struck down where they are vague, imprecise or not “in addition to” the plaintiff’s imputations. 310 Each case will depend on its own circumstances. Like the defence of truth under s 25, a defence of contextual truth under s 26 must defeat the whole defamatory matter of which the plaintiff complains. 311 The section requires the tribunal of fact to conduct a weighing exercise and to conclude that because of the substantial truth of the contextual imputations the defamatory imputations relied on by the plaintiff do not further harm the plaintiff’s reputation. 312 There may be some cases in which the potentially defamatory effect of the defendants’ imputation could not, on any rational view, be such as to further the harm brought on a plaintiff’s reputation, by reason of the imputation relied on by the plaintiff. Generally, however, it will be a matter for the judgment of the jury (if there is one), bringing into court their worldly experience and knowledge of human affairs, to determine whether the plaintiff’s imputation did not further harm his or her reputation, because of the substantial truth of the defendant’s contextual imputation. 313 Because the contextual truth defence under s 26 requires the defendant to respond to all of the plaintiff’s imputations the defendant is unable to “plead back” any of the plaintiff’s imputations as being contextual imputations. 314 In other words, any imputation pleaded by the defendant must be different from those pleaded by the plaintiff. Accordingly a contextual truth defence under s 26 and a Hore-Lacy defence under the common law are, at least in a 305 306

307 308 309 310 311 312 313 314

Ange v Fairfax Media Publications Pty Ltd [2011] NSWSC 204 at [16]. John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 at [16]; Ange v Fairfax Media Publications Pty Ltd [2011] NSWSC 204 at [18]; Ives v State of Western Australia (No 8) [2013] WASC 277. Accordingly an imputation that “the plaintiff is a conman” would not be a valid contextual imputation to an imputation that “the plaintiff is a conman in that he scams customers of his electrical business”: Jones v TCN Channel Nine Pty Ltd [2014] NSWSC 1453 at [20]. Ange v Fairfax Media Publications Pty Ltd [2011] NSWSC 204 at [27]. Ange v Fairfax Media Publications Pty Ltd [2011] NSWSC 204 at [28]. Jones v TCN Channel Nine Pty Ltd [2014] NSWSC 1453 at [31]. See, for example, King v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1244. Besser v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174 at [78]. Besser v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174 at [79]. Soultanov v The Age Co Ltd (2009) 23 VR 182 at [51]-[52]. Besser v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174 at [80]; cf the practice previously permitted in New South Wales with respect to the contextual truth defence provided by Defamation Act 1974, s 16(2) due to the fact that each imputation constituted a separate cause of action.

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practical sense, alternatives – both cannot be successful. The former involves rejecting the plaintiff’s imputations and instead asserting imputations which are different in substance whereas the latter proceeds on being permissible variants of the plaintiff’s imputations. 315 There are authorities supporting the view that s 25 and s 26 should be applied sequentially. Accordingly, in Besser v Kermode 316 the New South Wales Court of Appeal stated the correct approach for a defendant would be essentially as follows: (a)

prove under s 25 that the defamatory imputations alleged by the plaintiff are substantially true;

(b)

prove under a common law Hore-Lacy defence that rather than the defamatory imputations pleaded by the plaintiff, the defamatory matter carries nuance imputations which are substantially true;

(c)

to the extent that the defendant fails to establish all the defamatory imputations alleged by the plaintiff are substantially true, rely on those proved to be true (in other words, “partial justification”) in mitigation of the plaintiff’s damages; 317 and

(d)

to the extent that the defendant cannot prove that the defamatory imputations alleged by the plaintiff are substantially true, under s 26 prove that the defamatory matter carries contextual imputations that are substantially true and because of that the defamatory imputations alleged by the plaintiff do not further harm the reputation of the plaintiff.

The Queensland Court of Appeal in Mizikovsky v Queensland Television Ltd 318 approved a similar literal meaning of the sections adopted by the trial judge in that case: Section 25 allows the defence of justification only “if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true”. That reflects the fact that the cause of action under the Act is for publication of defamatory matter, rather than for publication of a severable defamatory imputation. It requires proof of the substantial truth of every defamatory imputation of which the plaintiff complains. In the absence of such proof, s 25 does not provide a defence. Section 26 then requires the defendant to prove that “the defamatory imputations” – meaning all of the defamatory imputations of which the plaintiff complains – do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

Subsequently, a differently constituted New South Wales Court of Appeal in Born Brands Pty Ltd v Nine Network Australia Pty Ltd 319 suggested without finally deciding that there may be an alternative approach that involves reading s 25 and s 26 together. This would mean that the tribunal of fact must consider holistically the effect of the defamatory matter on the reputation of the plaintiff and then decide whether, by reference to the imputations pleaded by 315 316 317 318 319

Setka v Abbott [2014] VSCA 287 at [299]. Besser v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174 at [86] per McColl JA (Beazley and Giles JJA agreeing). See [3.1360]. Mizikovsky v Queensland Television Ltd [2014] 1 Qd R 197 at [14] per Fraser JA (Holmes JA and Fryberg J agreeing). Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369 at [86] per Basten JA (Meagher and Tobias JJA agreeing).

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both the plaintiff and the defendant, any imputations which have not been shown by the defendant to be substantially true cause any further harm to the reputation of the plaintiff. Thus if the plaintiff alleges imputations A, B and C, and the defendant suggests there are contextual imputations D and E in the publication, reading s 25 and s 26 together would mean that if the defendant was able to prove that imputation B, C, D and E were substantially true there would a complete defence if by reason of that proof imputation A did not cause any further harm to the plaintiff. There may be some attraction in this alternative interpretation. Apart from anything else, there is nothing in s 26 that suggests a sequence whereby it is to apply where s 25 does not apply.

Absolute privilege [3.720] In some cases the law considers that the occasion upon which statements are made are such that the speaker should be wholly immune from suit for defamation. In such a case of “absolute privilege,” the privilege attaches not to the content or speaker but to the occasion. Under s 27 of the uniform defamation legislation 320 it is a defence if the defendant proves that the defamatory matter was published on an occasion of absolute privilege. It then proceeds to provide a non-exhaustive list of relevant occasions which includes proceedings of a Parliamentary body or of an Australian court or tribunal. The legislation also provides that absolute privilege applies to matter published on an occasion that if published in another Australian jurisdiction would be an occasion of absolute privilege in that jurisdiction. Accordingly, there is no doubt that statements made in, for example, a Queensland Parliament or court attract absolute privilege whether the plaintiff contemplates bringing a defamation action in Queensland or any other Australian jurisdiction. The legislation also allows for further occasions attracting absolute privilege to be included by a jurisdiction, if it so chooses, in Schedule 1 of its defamation statute. For example, New South Wales had done so by including a wide range of other matters within the ambit of absolute privilege. These include matters relating to offices such as those of the Ombudsman, the Privacy Commissioner and the Information Commissioner, and organisations such as the Law Reform Commission, the Independent Commission Against Corruption and the State Parole Authority, as well as matters arising under various statutes such as the Workers Compensation Acts, the Anti-Discrimination Act 1977 (NSW), the Legal Profession Act 2004 (NSW) and the Public Interest Disclosures Act 1994 (NSW). South Australia has extended absolute privilege to matter published by the Parole Board or by a registered victim of an offence for the purposes of a proceeding of the Parole Board. It should also be remembered that since common law defences have been preserved by the statutes, absolute privilege at common law which has not been caught by the statutes will still be applicable (or will now be applicable in the case of Queensland and Tasmania, which previously had codified regimes). Accordingly, absolute privilege will apply to defamatory statements made in the executive communications and communications between spouses. 320

ACT: s 137; NT: s 24; SA: s 25.

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Although absolute privilege is enjoyed by those who may become the subject of a story by the media, such as someone making a statement in parliament or court, generally the absolute privilege does not extend to the media. Instead, reports of parliamentary or judicial proceedings normally attract only qualified privilege. 321

Proceedings of parliamentary bodies [3.730] Immunity from any kind of suit was conferred upon members of the United Kingdom Parliament pursuant to Art 9 of the Bill of Rights 1689, which provided that “the freedom of speech or debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”. This immunity has been re-enacted in Australia. 322 In the defamation sphere, the immunity has been reflected in the uniform defamation legislation, which provides absolute privilege for “proceedings of parliamentary bodies” including but not limited to Parliamentary debates or proceedings held by or under the authority of Parliament, which would include committee proceedings, documents published by order or authority of Parliament, and giving evidence, or presenting or submitting a document to a Parliamentary body. 323 Consequently no action will lie against a Member of Parliament for defamatory words spoken in the course of such proceedings. 324 There is no objection to Hansard being used as a record of history, for example, to show that a particular statement was made in Parliament at a particular time or referred to a particular person. 325 However, nothing said in the House can be used for the purpose of supporting a cause of action, as a means of proving the motives or intentions of a Member or rebutting a defence (for example, by proving malice), for statements made outside the House. 326 By contrast, where a Member repeats or adopts outside the House, perhaps in an interview with the media, statements he or she made inside Parliament, there is no

321

See [3.800]-[3.850].

322

See Parliamentary Privileges Act 1987 (Cth), s 16(1); Australian Capital Territory (Self-Government) Act 1988 (Cth), s 24(3) (applicable in ACT); Imperial Act Application Act 1969 (NSW), s 6; Legislative Assembly (Powers and Privileges) Act (NT), ss 4, 6; Parliament of Queensland Act 2001 (Qld), s 8; Constitution Act 1934 (SA), s 38; Constitution Act 1975 (Vic), s 19(1); Parliamentary Privileges Act 1891 (WA), s 1.

323

DA: s 27(2)(a); ACT: s 137(2)(a); NT: s 24(2)(a); SA: s 25(2)(a). Chenard & Co v Arissol [1949] AC 127 at 133-134. A person aggrieved by comments made concerning him or her under parliamentary privilege may be able to have a reply incorporated into the relevant Hansard under the Standing Orders of both Houses of Federal Parliament, both Houses of the New South Wales Parliament, and the Legislative Assemblies in the Australian Capital Territory, Queensland and Western Australia: see Gillooly (1998), p 152. Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 337 (PC). In Erglis v Buckley [2004] 2 Qd R 599 the Queensland Court of Appeal refused to strike out a claim based on a letter sent to a Minister later tabled in Parliament because parliamentary privilege was not being impugned. The defamation action was not against the Minister but against the authors of the letter, alleging that they should be liable for the Minister’s republication since they ought to have known that she would table the letter: see [3.450].

324

325

326

Church of Scientology of California v Johnson-Smith [1972] 1 QB 522; Mundey v Askin [1982] 2 NSWLR 369; Amann Aviation Pty Ltd v Commonwealth (1988) 19 FCR 223; Prebble v Television New Zealand Ltd [1995] 1 AC 321 (PC).

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privilege. 327 Where proceedings of the Commonwealth Parliament are concerned, this purportedly has been made plain by the Parliamentary Privileges Act 1987 (Cth), s 16(3) which states that it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament for the purpose of: (a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings; (b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or (c) drawing inferences or conclusions wholly or partly from anything forming part of those proceedings. 328 However, there has been debate over the validity of s 16(3). 329 In particular, a majority in Laurance v Katter, 330 a case involving a Member later “standing by” but not repeating the defamatory statements he made in parliament, held that the terms of s 16(3) go beyond Art 9 and therefore are either rendered void or must be read down because it is contrary to the implied Constitutional freedom of communication concerning government or political matters. 331 However, these interpretations were subsequently not followed in the South Australian case Rann v Olsen. 332 Similarly, an earlier South Australian case Wright & Advertiser Newspapers Ltd v Lewis held that since the primary value sought to be protected by parliamentary privilege was freedom of speech and deliberation in the Parliament, it did not preclude a defendant from alleging and proving the truth of statements made in Parliament where the maker of the statements was the person who initiated the proceedings. 333 However, this approach was rejected by the Privy Council, on appeal from New Zealand, on the grounds that the privilege protected by Art 9 is the privilege of Parliament itself. The actions of any individual member of Parliament, even if he or she has an individual privilege of his or her own, cannot determine whether or not the privilege of Parliament is to apply. The decision of an individual member cannot override the collective privilege of the House to be the sole judge of such matters. 334 The effect of this decision has been overridden by legislation in the United Kingdom, 335 but not in Australia. Wright & Advertiser Newspapers Ltd was also rejected by the South Australian Full Court in Rann v Olsen and in the Queensland Supreme Court in Flegg v Hallett. 336 327 328

Beitzel v Crabb [1992] 2 VR 121; Australian Broadcasting Corporation v Chatterton (1986) 46 SASR 1 at 35 per Prior J, cf 19 per Zelling ACJ; Jennings v Buchanan [2005] 2 NZLR 577 at [19] (PC). See also [4.110]. State and Territory legislation have similar provisions.

329 330 331

The following paragraphs only briefly address this issue. See [4.110]-[4.130] for a more detailed discussion. Laurance v Katter (1996) 141 ALR 447. See the judgments of Pincus JA and Davies JA. The High Court granted special leave to appeal the decision, but the appeal was discontinued.

332

Rann v Olsen (2000) 76 SASR 450 (plaintiff suing for allegation that he lied to Parliamentary Committee – court held that the statements were privileged).

333 334 335

Wright & Advertiser Newspapers Ltd v Lewis (1990) 53 SASR 416 at 426. Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 335. Defamation Act 1996 (UK), s 13 confers a statutory right on individual members of Parliament to waive the privilege. Flegg v Hallett [2014] QSC 278.

336

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At the heart of the debate over s 16(3) and similar provisions lies the paradox that in promoting freedom of speech in parliament, it may impose a limit on freedom of speech by other members of the community. In particular, the section may operate to restrict the freedom to discuss government or political matters which is impliedly guaranteed in the Constitution, particularly if the section exceeds the terms of Art 9. This will be the case whether the Member of Parliament is a plaintiff, trying to rely on something said in Parliament to, perhaps, prove the truth of a claim (as in Wright & Advertiser Newspaper) or a defendant, such as where he or she “stands by” defamatory statements he or she made in Parliament (as in Laurance v Katter). It would appear, therefore, that the precise bounds of the privilege, particularly as reflected in s 16(3), await final determination by the High Court. There is no suggestion that uniform defamation legislation has changed the law providing that parliamentary privilege also embraces the preparation and presentation of documents tabled in the House. 337 This includes collecting or assembling the documents or coming into possession of them. 338

Proceedings of courts or tribunals [3.740] The uniform defamation legislation affords absolute privilege to matter published in the course of the proceedings of an Australian court or tribunal, which are defined as including but not being limited to publication of matter in any document filed, lodged or otherwise submitted to the court or tribunal, in the course of giving evidence, or in any judgment, or other determination of the court or tribunal. 339 The proper and efficient administration of justice requires that statements made in the course of judicial proceedings be absolutely protected from suit for defamation. This privilege extends to judges, parties, counsel, witnesses and jurors. 340 Judges are entitled to the privilege even though their statements may be malicious or even irrelevant to the matter under consideration. However, the other participants are protected if their statements are malicious but only when their statements are relevant, since the making of an irrelevant statement may mean that the person was no longer acting in the character of a participant in judicial proceedings. 341 The public policy underpinning the immunity in cases of statements in judicial proceedings involves two considerations. First, it is necessary that those who are involved in litigation should be able to speak freely without fear of being exposed to a suit for defamation. Secondly, there is the desire to avoid interminable litigation which could result if the merits of a judgment were able to be re-examined by a trial of the testimony of the witness in a defamation suit against him or her. 342 337 338

Holding v Jennings [1979] VR 289. O’Chee v Rowley (1997) 150 ALR 199 (Qld CA).

339 340

DA: s 27(2)(b); ACT: s 137(2)(b); NT: s 24(2)(b); SA: s 25(2)(b). Cabassi v Vila (1940) 64 CLR 130; Royal Aquarium & Summer & Winter Garden Society v Parkinson [1892] 1 QB 431; More v Weaver [1928] 2 KB 520.

341 342

Seaman v Netherclift [1876] 2 CPD 53 at 57; Cabassi v Vila (1940) 64 CLR 130. Cabassi v Vila (1940) 64 CLR 130 at 139; Jamieson v The Queen (1993) 177 CLR 574 at 590.

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It would seem that the position of communications between a solicitor and a client has yet to be finally settled. There is no provision expressly covering solicitors and clients in the uniform defamation legislation. There is authority that statements made within such a relationship are covered by absolute privilege at common law. 343 However, this position may be open to review. 344 In any event, the substance of the communication must be relevant to the occasion on which advice is sought, as opposed to, for example, matter of a gossipy nature. 345 The privilege now expressly extends to tribunals. The section in the uniform defamation legislation refers to the relevant “proceedings” – whether of courts or tribunals – as including matters such as filing, lodging and submitting of documents including originating process, giving evidence and the publication of a judgment, or other determination. It would seem implicit, therefore, that in order to attract absolute privilege for its participants the tribunal must act in a manner similar to courts of justice. The overriding consideration is whether there will emerge from the proceedings a determination, the truth and justice of which is a matter of public concern. 346 A number of factors should also be relevant, 347 including: the authority under which the tribunal acts, a tribunal established by statute or other legal means attracting the privilege, whereas one established merely by, for example, the consent of the members of an association will not; 348 the question being considered by the tribunal being in the nature of an issue between parties rather than, for example, in the nature of a preliminary investigation; 349 the procedure adopted in carrying out proceedings, including the power to summon and examine witnesses; and the legal consequences of the conclusion that is reached by the tribunal as a result of the inquiry. Accordingly, it has in the past been held that absolute privilege extends to tribunals such as a military court, 350 disciplinary hearings against solicitors 351 and barristers, 352 and town planning inquiries. 353 By contrast, absolute privilege has been held to not extend to merely administrative inquiries such as an inquiry into the grant of a liquor or dance licence, 354 the report by an inspector of police to a superior officer concerning another officer 355 or any inquiry by the Attorney-General into the fitness for office of a magistrate. 356 Similar conclusions should apply under the uniform defamation legislation. 343 344 345

More v Weaver [1928] 2 KB 520 at 525-526. Minter v Priest [1930] AC 558. More v Weaver [1928] 2 KB 520 at 525.

346 347 348 349

Mann v O’Neill (1997) 191 CLR 204 at 212. Trapp v Mackie [1979] 1 WLR 377 (HL). Hope v I’Anson [1901] 18 TLR 201. O’Connor v Waldron [1935] AC 76 (PC).

350 351 352

Chatterton v Secretary of Capitalist State for India [1895] 2 QB 189. Addis v Crocker [1961] 1 QB 11; Hercules v Phease [1994] 2 VR 411. Lincoln v Daniels [1962] 1 QB 237.

353 354

Atkins v Mays [1974] 2 NZLR 459. Attwood v Chapman [1914] 3 KB 275 (liquour licence); Royal Aquarium and Summer & Winter Gardens Society v Parkinson [1892] 1 QB 431 (music and dance licence).

355 356

Gibbons v Duffell [1932] 47 CLR 520. Mann v O’Neill (1997) 191 CLR 204.

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A letter of complaint to a disciplinary board may be part of an established procedure which must be set in motion if disciplinary proceedings are to commence, and is therefore analogous to originating process before a court. Such a complaint would be absolutely privileged. 357 By contrast, a letter of complaint to the Attorney-General complaining about the ability of a public official to perform his or her public functions where there is no procedure for the handling or adjudicating of such complaints does not attract absolute privilege. 358 Even if the Attorney-General were the appropriate authority to investigate and prosecute complaints, there would still be no absolute privilege. The function of an authority charged with investigation and prosecution, whether in the courts or elsewhere, is not to ascertain the truth and justice of a matter in a binding way, but rather to determine whether institution of proceedings is warranted in the circumstances. Absolute privilege is not necessary for the proper discharge of that function. 359 Complaints to prosecuting authorities should enjoy only qualified privilege. 360 Since Royal Commissions are more investigatory than judicial in nature, at common law the participants in such proceedings do not enjoy absolute privilege. However, this position has been altered by legislation which provides that the Commissioner, counsel and witnesses before a commission of inquiry are to have the same protection as is accorded to participants in judicial proceedings. 361 The uniform defamation legislation should not have altered the position that the absolute privilege covers not only statements made in the course of the actual judicial or tribunal proceedings, but also communications preparatory to those proceedings including communications between parties and witnesses or legal advisers 362 and documents initiating proceedings which are sent to the appropriate authority. 363

Internal executive communications [3.750] At common law the freedom of speech protected by parliamentary privilege is supported by absolute protection for communications by some persons holding high executive office when fulfilling an official function. The privilege applies only to “high officers of State,” such as ministers of the Crown acting in an official capacity rather than public servants, and is premised on the need for government functions to be carried out in a fearless fashion without the risk of possible consequences in defamation. The privilege has been held to apply to a report by the High Commissioner for Australia in the United Kingdom to the Prime Minister of Australia, on the basis that as a representative of the Commonwealth the position was 357 358 359 360

Hercules v Phease [1994] 2 VR 411. Mann v O’Neill (1997) 191 CLR 204 at 215-216. Mann v O’Neill (1997) 191 CLR 204 at 216. Finn v Hunter (1886) 12 VLR 656.

361

Royal Commissions Act 1902 (Cth), s 7; Royal Commissions Act 1991 (ACT), 19; Royal Commissions Act 1923 (NSW), ss 6, 7(3); Inquiries Act (NT), ss 5, 15; Commissions of Inquiry Act 1950 (Qld), s 14B, 20; Royal Commissions Act 1917 (SA), s 16; Commissions of Inquiry Act 1995 (Tas), s 8; Evidence Act 1958 (Vic), s 21A; Royal Commissions Act 1968 (WA), ss 20, 31.

362 363

Watson v M’Ewan [1905] AC 480 (HL); Ronald v Harper [1913] VLR 311 (FC). Hercules v Phease [1994] 2 VR 411; Lincoln v Daniels [1962] 1 QB 237.

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analogous to the position of a government minister. 364 It would seem that the protection will extend to communications by the Cabinet Minister not only to a fellow minister, but also to an appropriate subordinate. 365 The privilege attaches to communications made in an official capacity, which may cover not only matters of safety and security of the community but also matters of commerce. 366 The privilege only protects internal communications which will by their nature have a limited audience. It does not extend to press releases or public statements of members of the executive government, although such may attract qualified privilege. 367

Communications between spouses [3.760] At common law communications between a husband and wife are protected by absolute privilege. The modern explanation for this protection may rest in a recognition of the confidential relationship between spouses so as to avoid results which are disastrous to social life. 368

Whistleblowers [3.770] Under legislation in some jurisdictions, absolute privilege against liability for defamation is expressly conferred upon whistleblowers, 369 while in others this protection may be implicit in the general immunity from liability. 370 In the Australian Capital Territory only, qualified privilege is conferred. 371

Qualified privilege [3.780] There are further occasions when the law recognises that a publisher has a reason for, or interest in, publishing which outweighs the right of the plaintiff to his or her unsullied reputation. Often it is the relationship between the parties that establishes the “occasion” of the publication as attracting the privilege to publish. 372 However, such a privilege may be regarded as “qualified” as opposed to “absolute” because it may be lost in certain circumstances. The nomenclature of “qualified privilege” may be broadly applied to the defences of publication of public documents, fair report of proceedings of public concern, statutory qualified privilege for publication of information, common law qualified privilege and 364 365 366 367

Isaacs v Cook [1925] 2 KB 391. Peerless Bakery v Watts [1955] NZLR 339 (Minister’s order to official of Wheat Board). Isaacs v Cook [1925] 2 KB 391 (fruit export); Peerless Bakery v Watts [1955] NZLR 399 (bread supply). See [3.870].

368 369

Wennhak v Morgan [1898] 20 QBD 635 at 639. Protected Disclosures Act 1994 (NSW), s 21; Protected Disclosure Act 2012 (Vic), s 41.

370

See Public Interest Disclosure Act 2010 (Qld), s 36; Whistleblowers Protection Act 1993 (SA), s 5; Public Interest Disclosures Act 2002 (Tas), s 16; Public Interest Disclosure Act 2003 (WA), s 13. Public Interest Disclosures Act 2012 (ACT), s 35. As opposed to, for example, an assessment of the plaintiff’s characteristics, as underlies the “public figure” defence operating in American defamation law: see M Chesterman, “Privileges and freedoms for defamatory political speech” (1997) 19 Adel LR 155 at 157.

371 372

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the extended qualified privilege for communications concerning political government matters. However, differences exist between these distinct defences, including these circumstances in which the defence may be lost.

Publication of public documents [3.790] Section 28 of the uniform defamation legislation 373 provides for a defence where the defamatory manner is contained in a public document, or a fair copy of, summary of or extract from, that document. For these purposes, “public document” means: • any report or paper published by Parliamentary body, or a record of votes, debates or other proceedings published by or under the authority of the Parliamentary body; • any judgment, order or determination of a court or arbitral tribunal of any country in civil proceedings, including any record or report of the court or tribunal relating to the judgment, order or determination and reasons; • any report or other document that under the law of any country is (i) authorised to be published, or (ii) required to be presented, or submitted to, tabled in or laid before a Parliamentary body; • any document issued for the information of the public by a government, including a local government, or government officer, employee or agency. Presumably this will not apply to mere propaganda released by an official on behalf of a Minister. 374 • any record or other document open to inspection by the public that is kept by an Australian jurisdiction, a statutory authority of an Australian jurisdiction, an Australian court or under legislation of an Australian jurisdiction; • any other document issued, kept or published by person, body or organisation of another Australian jurisdiction that is treated in that jurisdiction as a public document under a provision of law of the jurisdiction. 375 Jurisdictions also have the option to specify other documents covered by the privilege in Schedule 2 to the legislation. As at the time of writing no jurisdiction had exercised its option. For these purposes a “fair” copy, summary or extract would be one which contains no embellishment by the publisher. 376 In the case of, for example, a document issued to the information of the public, the document such as a notice or report must be republished without alteration or addition. There may be no protection if the notice or report is used as the basis for a media report which adds to or varies the notice or report. 377 373

374 375 376 377

ACT: s 138; NT: s 25; SA: s 26. Mere failure to comply with formal requirements regarding content or layout, or time limits for preparation, presentation, submission or tabling is not sufficient to prevent a document from being regarded as a public document: subs (2). Forster v Watson (1944) 44 SR (NSW) 399; see also Hanrahan v Ainsworth (1990) 22 NSWLR 73; Nationwide News Pty Ltd v Wiese (1990) 4 WAR 263. DA: s 28(4); ACT: s 138(4); NT: s 25(4); SA: s 26(4). See further [3.800] regarding the meaning of “fair” in relation to “fair reports”. Campbell v Associated Newspapers Ltd (1948) 48 SR (NSW) 301; John Fairfax & Sons Ltd v Hook (1983) 47 ALR 477; Lewincamp v ACP Magazines Ltd [2008] ACTSC 69 at 215.

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The defence provided by this section is not absolute, but may be defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education.

Fair report of proceedings of public concern [3.800] The basis for the protection provided for fair reports of proceedings of public concern by qualified privilege is that the advantage of publicity to the community and keeping the public informed outweighs any private injury resulting from the publication. 378 This then is a defence of no small significance for the media.

Common law [3.810] At common law, the absolute privilege enjoyed by those who make statements in parliament and judicial proceedings is supplemented by a qualified privilege for “fair and accurate” reports of those proceedings 379 although in the case of reports of proceedings in courts in other jurisdictions the privilege only applies if proceedings are of worldwide importance or if they have a special connection with affairs in the jurisdictions in which the report is published. 380 The privilege was previously enacted by legislation in all Australian jurisdictions, although differences existed in the statutes. The uniform defamation legislation has removed these differences and clarified this defence.

Uniform defamation legislation [3.820] Section 29 of the uniform defamation legislation 381 provides a defence of fair report of proceedings of public concern. There is also a defence if the defendant can show that the matter was contained in an earlier published report of proceedings of public concern, that the matter was contained in a fair copy, summary or extract of the earlier published report and that he or she had no knowledge that would reasonably make him or her aware that the earlier published report was not fair. For these purposes “proceedings of public concern” is defined as meaning any of the following: • Any proceedings in public of a Parliamentary body. 382 • Any proceedings in public of an international organisation of any country or the government of any country. • Any proceedings in public of an international conference at which the governments of any countries are represented. • Any proceedings in public of the International Court of Justice or any other judicial or arbitral tribunal for the decision of any matter in dispute between nations, or any other international judicial or arbitral tribunal. 378 379 380

Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510 at 536; Wason v Walter (1868) LR 4 QB 73 at 88. Wason v Walter (1868) LR 4 QB 73. Webb v Times Publishing Co Ltd [1960] 2 QB 535 at 563-570.

381 382

ACT: s 139; NT: s 26; SA: s 27. See further Peters v Television New Zealand (TVNZ) [2012] 2 NZLR 466.

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• Any proceedings in public of a court or arbitral tribunal of any country. Accordingly, the defence will not apply to proceedings which have been closed to the public or where publication has been prohibited by the court. 383 Further, the privilege only protects publication of statements forming part of the proceedings. 384 While it would extend as far as an application to be heard from a non-party who is present in the court room, regardless of whether it is successful or not, it would not include, for example, an interjection shouted by a bystander to the case who had not been sworn as a witness and who was making no application to the court. Such intervention would be wholly irrelevant to the proceedings. 385 If, however, statements are made in the course of proceedings it does not matter that they were irrelevant to the issues being litigated in those proceedings. 386 • Any proceedings in public of an inquiry held under the law of any country or other the authority of the government of any country. This will include the public hearings of a Royal Commission. 387 • Any proceedings in public of a local government body of any Australian jurisdiction. • Proceedings of a learning society or of a committee or governing body of the society but only to the extent that the proceedings relate to a decision or adjudication made in Australia about a member or members of the society or a person subject by contract or otherwise by law to control by the society. A “learned society” is defined as a society whose objects include the advancement of any art, science or religion or the advancement of learning in any field, and which is authorised by its constitution to exercise control or to adjudicate over matters connected with those of objects and to make findings or decisions having effect by law or custom in any part of Australia. • Proceedings of a sport or recreation association, or of a committee or governing body of the association but only to the extent that the proceedings relate to a decision or adjudication made in Australia about a member or members of the association or a person subject by contract or otherwise by law to control by the association. A “sport or recreation association” is defined as an association whose objects include the promotion of any game, sport, or pastime to which the public is admitted as spectators or otherwise, and the promotion or protection of the interests of people connected with the game, sport or pastime; and which is authorised by its constitution to exercise control or to adjudicate over matters connected with the game, sport or pastime and to make findings or decisions having effect by law or custom in any part of Australia. 383

See [5.60], [5.150].

384

385

Hope v Sir WC Leng and Co (Sheffield Telegraph) Ltd (1907) 23 TLR 243 at 244-245 (reported words not made by a person while he was a witness in the witness box but rather words shouted out by him from the body of the court after his examination had been concluded – report held privileged); Leslie v Mirror Newspapers Ltd (1971) 125 CLR 332 at 341 (comments by magistrate after delivering verdict part of the proceedings (per Gibbs J)); cf Delegal v Highley (1837) 3 Bing NC 950; 132 ER 677 at 961 (Bing NC), 681 (ER) (interjection by a bystander); Hughes v West Australian Newspapers Ltd (1940) 43 WALR 12 (outburst after the proceedings had been closed). Cf Farmer v Hyde [1937] 1 KB 728.

386 387

Hutchison v Robinson (1900) 21 LR (NSW) 130 at 145. See also Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519.

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• Proceedings of a trade association, or of a committee or governing body of the association but only to the extent that the proceedings relate to a decision or adjudication made in Australia about a member or members of the association or a person subject by contract or otherwise by law to control by the association. A “trade association” is defined as an association whose objects include the promotion of any calling (that is, a trade, business, industry or profession) and the promotion or protection of the interests of people engaged in any calling; and which is authorised by its constitution to exercise control or to adjudicate over matters connected with a calling or the conduct of people engaged in the calling and to make findings or decisions having effect by law or custom in any part of Australia. This would include the proceedings of a medical disciplinary tribunal. 388 • Any proceedings of a public meeting (with or without restriction on the people attending) of shareholders of a public company under the Corporations Act 2001 (Cth) held anywhere in Australia. • Any proceedings of a public meeting (with or without restriction on the people attending) held anywhere in Australia if the proceedings relate to a matter of public interest, including the advocacy or candidature of a person for public office. • Any proceedings of an ombudsman of any country if the proceedings relate to a report of the ombudsman. • Any proceedings in public of a law reform body of any country. • Any other proceedings adapted by, or proceedings of, a person, body or organisation of another Australian jurisdiction that are treated in that jurisdiction as proceedings of public concern under a provision not of a law of the jurisdiction. Jurisdictions also have the ability to nominate further proceedings in Schedule 3. As at the time of writing no jurisdiction had exercised this right.

Meaning of “fair” [3.830] Section 29 of the uniform defamation legislation 389 contains no definition of “fair”, and it is not immediately clear whether there is an intention that it bear a different meaning from “fair and accurate” at common law. There is no reason to suppose that the Standing Committee of Attorneys-General proposed that privilege should be afforded to inaccurate reports. A more likely explanation is that the quality of accuracy is to be seen as an attribute of a fair report, so that “fair and accurate” is a tautology. In order for a report to be “fair” it must not be slanted or distorted. The question of fairness is one of fact. 390 Although it is permissible to summarise any part of the proceedings which may be of particular interest to the public, such a summary will be privileged only if made fairly and honestly with the intention of conveying to the viewer or reader the impression which the 388 389

See also Allbutt v General Council of Medical Education and Registration (1889) 23 QBD 400 at 409-410. ACT: s 139; NT: s 26; SA: s 27.

390

Leslie v Mirror Newspapers Ltd (1971) 125 CLR 332; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 540.

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proceedings themselves would have made. 391 This will be particularly demanding for journalists reporting complex and perhaps contradictory evidence: great care will need to be taken to ensure that the full scope of the evidence is represented and misleading (and possibly defamatory) impressions are not created. 392 In the case of a report of judicial proceedings, direct attribution of a judgment is not required provided it is clear on the face of the report that it is of a decision or judgment given in court. 393 Substantial accuracy is sufficient, provided the report does not give a misleading impression of what was said or done in the proceedings. 394 The report must be regarded from the standpoint of persons whose function it is to give the public a fair account of what had taken place in the proceedings: it would be wrong to judge a report likely to have been compiled and published under conditions of urgency by the exact standard of accuracy which would be expected in a report purporting to come from, for example, the hand of a trained lawyer. 395 Particular attention may be given to headlines and graphics which, by definition, have the object of capturing maximum public attention. 396 In a high pace society, such eye-catching matter will for many be the entirety of what is perceived or at least remembered: it would be a fiction to suggest that the scrutiny applied to a scholarly book will also be applied to the mass media. 397 The question is not whether it is fair or unfair to any particular person: the question is whether it substantially records what was said and done. 398 If the report is fair in the sense of reporting with substantial accuracy what in fact was said and done in the proceedings then it matters not if those statements so reported are themselves factually untrue. 399 If the statements made in the course of the proceedings were in fact false, they were nevertheless made and those present at the proceedings heard them: a fair report which includes those false statements does no more than inform the public of what they would have heard had they been present. 400

Meaning of “report” [3.840] A “report” is essentially descriptive and is limited to an account of events which have happened. It cannot properly include the independent comments, opinions or gloss of the 391 392 393

394

395 396 397 398 399 400

Cook v Alexander [1974] 1 QB 279 at 288. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519. Nationwide News Pty Ltd v Rogers [2002] NSWCA 71 at [112] (sufficient that the subject matter was plainly a judgment handed down by Hill J of the Federal Court on the preceding day, together with references such as “test case” and “landmark ruling”). James v John Fairfax & Sons Ltd (1986) 4 NSWLR 466; Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 63; Thom v Associated Newspapers Ltd (1964) 64 SR (NSW) 376 at 380; MacDougall v Knight (1890) 25 QBD 1 at 7; Nationwide News Pty Ltd v Rogers [2002] NSWCA 71 at [113]. Hope v Sir WC Leng and Co (Sheffield Telegraph) Ltd (1907) 23 TLR 243 at 244; (1971) 125 CLR 332. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 575 per Kirby J. Farquhar v Bottom [1980] 2 NSWLR 380 at 386. Thom v Associated Newspapers Ltd (1964) 64 SR (NSW) 376 at 383. Hutchison v Robinson (1900) 21 LR (NSW) 130 at 145; MacDougall v Knight (1886) 17 QBD 636 at 640; Cook v Alexander [1974] QB 279 at 288. Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58.

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reporter. 401 The publication must clearly be a report: if the reporter takes information from the proceedings and presents it as his or her own then there will be no privilege. 402 In addition, misleading headlines or hyperbolic commentary may in particular circumstances lose the privilege. 403

Defeating the defence [3.850] The defence for publication of a fair report of proceedings of public concern, including publication from an earlier published report, is qualified because it may be defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education. 404 A similar wording appeared in the previous Australian Capital Territory counterpart section. As with that provision, precisely how an ordinary member of the public who has been defamed might obtain the evidence needed to show that a large media organisation, or even one or several of its employees, did not honestly publish the material for the information may be a matter for conjecture. Presumably the plaintiff will be entitled to rely on inferences from the available evidence.

Common law qualified privilege: interest or legal, moral or social duty and reciprocal interest Generally [3.860] At common law a publisher has privilege where he or she has an interest or legal, moral or social duty to publish the material, despite its defamatory content, to a recipient who has a reciprocal interest in receiving it. 405 It has been said that cases of qualified privilege exist for “the common convenience and welfare of society”. 406 The categories of common law qualified privilege cannot be precisely stated and are not regarded as closed. 407 Nevertheless, no distinction is drawn between one class of privileged communications and another, and precisely the same considerations apply to all cases of qualified privilege. 408 Where the case is being tried before a jury, the question whether an occasion is privileged if the facts are not in dispute is a question of law only, for the judge not for the jury. If there

401 402 403

Burchett v Kane [1980] 2 NSWLR 266(n) at 273 per Samuels JA. Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43 at 50. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 587 per Kirby J.

404 405

DA: s 29(3); ACT: s 139(3); NT: s 26(3); SA: s 27(3). Toogood v Spyring (1834) 1 CM & R 181 at 193; 149 ER 1044 at 1049; Adam v Ward [1917] AC 309 at 334; Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510. Toogood v Spyring (1834) 1 CM & R 181 at 193; 149 ER 1044 at 1050. London Association for the Protection of Trade v Greenslands Ltd [1916] 2 AC 15; Perera v Peiris [1949] AC 1. Jenoure v Delmege [1891] AC 73 at 78.

406 407 408

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are questions of fact in dispute upon which this question depends they are left to the jury, but when the jury has determined the facts it is for the judge to say whether they constitute a privileged occasion. 409 Rarely will the media have an interest or duty to publish something, which the general public will all have a reciprocal interest in receiving. 410 “Interest” for these purposes has the narrow meaning of an interest material to the affairs of the recipient of the information such as would, for instance, assist in the making of an important decision or the determining of a particular course of action. 411 The interest cannot be based on mere curiosity, news or gossip. 412 For the most part, therefore, the defence only applies in situations where there is a publication to a limited audience. The defence includes within its ambit a publication for the protection of the interest of the recipient, analogous to the defence of another to a physical assault. The case of a response by a journalist to a complaint made against him or her to the Australian Press Council which is conveyed to both the journalist’s employer and to the APC itself is a clear example of a person with both an interest to protect and a duty to respond, with both recipients having a reciprocal interest in receiving the communication. 413 Another manifestation of the defence occurs where there is community of interest between the publisher and the recipient, in other words there is not only a reciprocity of interest but indeed a commonality of interest, such as where statements are made by one creditor to another creditor about their debtor. 414 Generally speaking, therefore, the requirement of reciprocity in duty and interest means that common law qualified privilege provides little protection to the media.

Exceptions [3.870] Only in certain exceptional cases will a defamatory publication made to the general public emanating from neither an official nor quasi-official sources attract qualified privilege. Most of the cases in which the defendant’s claim have succeeded involved publications of material from a person or body connected with government, or with some institution having responsibility for the administration of an aspect of community affairs. In other words, the nature of the source is the best practical guide to the likely result, at least where the material is published at large. 415 Importantly for the media, a defamatory publication does not attract qualified privilege merely because it deals with a matter of public interest. 416

409 410 411 412 413 414 415 416

Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 at 509; Adam v Ward [1917] AC 309 at 318. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 572; Aktas v Westpac Banking Corporation Ltd (2010) 241 CLR 79 at 87; Daily Examiner Pty Ltd v Mundine [2012] NSWCA 195. Austin v Mirror Newspapers Ltd [1986] AC 299 (PC). Barrow v Bolt [2013] VSC 599 at [19]. See, for example, Barrow v Bolt [2013] VSC 599 not disturbed on appeal Barrow v Bolt [2015] VSCA 107. See, for example, Spill v Maule (1869) LR 4 Ex 232. Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510 at 593 per Pincus J. Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510; Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749.

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Retort [3.880] One such exceptional case is that the defence of qualified privilege extends to a person who has been publicly defamed to freely to submit his or her answer, whether it be strictly defensive or by way of counter-attack, to the public to whom the plaintiff has appealed or before whom the plaintiff has attacked the defendant. 417 For the privilege to attach the reply, or “retort”, must be sufficiently connected with the content of the attack, go to the credibility of the attack, or to the credibility of the person making that attack. 418 A reply or retort to a defamatory attack is equivalent to self-defence against a physical assault. 419 Like self-defence at criminal law, the response must be proportionate to the attack both in terms of content and the persons to whom it is addressed: the response must not go beyond defence to offence. 420 Accordingly, to the extent that the retort is not commensurate with the attack and is in the nature of fresh and distinct defamatory allegations, the qualified privilege will extend only so far as those portions of the defamation which would have been within its protection if they had stood alone and constituted the entire defamation, the irrelevant matter not being privileged at all 421 and furnishing possible evidence that the relevant portion was published with actual malice. 422 Further, if the attack is only to a small audience, the response must be equally limited, but if the plaintiff chooses a wide public forum such as parliament 423 or the media 424 for publicity of the attack, he or she cannot complain if the defendant uses the media as a medium for retort. 425

417

418

419 420

421 422 423 424 425

Norton v Hoare (No 1) (1913) 17 CLR 310; Loveday v Sun Newspapers Ltd (1938) 59 CLR 503; Penton v Calwell (1945) 70 CLR 219. It is immaterial whether the attack has been previously published (as in Norton and Penton) or if the attack and retort are in the same publication (as in Loveday). Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31 at [35] (Radio 2GB announcer responded to accusations by the plaintiff at a peace rally that the station engaged in “tabloid journalism” that incited the Cronulla riots by directing attention to the credibility of the plaintiff, imputing hypocrisy to the him as one who himself incited people to commit acts of violence and to have racist attitudes, and as one who at the peace rally had stirred up hatred against a 2GB reporter). Norton v Hoare (No 1) (1913) 17 CLR 310 at 318; Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449 at 470; Mowlds v Fergusson (1946) 64 CLR 206. See, for example, Harding v Essey (2005) 30 WAR 1 (defence denied where in reply to defamatory statements in newsletters distributed to 178 outlets the defendant forward a defamatory letter in retort to 1,000 outlets); Madden v Seafolly Pty Ltd [2014] FCAFC 30. As Fleming (9th ed, 1998), p 625 said of the retort: “The privilege is a shield, not a sword.” See, for example, Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31. Adam v Ward [1917] AC 309 at 340; Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 228. Penton v Calwell (1945) 70 CLR 219; Adam v Ward [1917] AC 309. See, for example, Loveday v Sun Newspapers Ltd (1937) 59 CLR 503; Kennett v Farmer [1988] VR 991. Norton v Hoare (No 1) (1913) 17 CLR 310 at 318; Adam v Ward [1917] AC 309 at 324; Loveday v Sun Newspapers Ltd (1937) 59 CLR 503 at 512.

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The interest being vindicated need not be the defendant’s own reputation. The defendant may be seeking to defend the reputation of a family member 426 or his or her employer or co-worker. 427 However, no privilege attaches where the defendant responds on behalf of a group or section of a community of which he or she is a member, and which has been the subject of a defamatory attack. 428 Example

Penton v Calwell [3.890] Penton v Calwell (1945) 70 CLR 219 For some years there had been an ongoing feud between the plaintiff, who was at the time a Federal Minister of State, and the defendant who was the editor of the Daily Telegraph newspaper and the publisher of that newspaper. In the course of that feud the plaintiff attacked the defendant, the Daily Telegraph and the metropolitan daily press in the Commonwealth Parliament under the protection of parliamentary privilege. The defendant wrote an article which accused the plaintiff of being a habitual liar and challenged him to abandon his privilege and to fight the controversy out in the courts. The plaintiff sued, alleging that the article was defamatory. The defendant pleaded qualified privilege on the basis that the words complained of were published in retort to attacks made by the plaintiff (1) upon the defendant as an individual (2) upon the defendant as editor of the Daily Telegraph (3) upon the company which owned that newspaper and (4) upon newspapers published and circulated within the Commonwealth. The High Court held that as the attacks had been made in Parliament and thus reached the widest possible audience, the use of the public press for the purpose of reply could not be regarded as involving any abuse of the privileged occasion created by the plaintiff’s attacks. The defendant was entitled to defend himself against the attacks by the plaintiff upon him as a person and as a journalist. He also had a personal interest which entitled him to protect the reputation of the company. However, the defendant had no relevant interest to protect in relation to the attacks upon the metropolitan daily press in general.

[3.900] If the words used by a defendant are capable of being construed as a retort to a defamatory attack, a jury may find that they were used in self-defence, whether or not they were combined with a challenge to sue. A challenge to sue is a challenge to fight out in the

426

Bowen-Rowlands v Argus Press Ltd (1926) The Times, 10 February; (1926) The Times, 26 March (defendant writing letter to newspaper attempting to vindicate her father’s memory against accusation made in a book repeated in a different newspaper), cited by Dixon J in Loveday v Sun Newspapers Ltd (1937) 59 CLR 503 at 519-520.

427 428

Trad v Harbour Radio Pty Ltd [2011] NSWCA 61 at [108]. Penton v Calwell (1945) 70 CLR 219 at 243; Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 at 519.

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courts the relevant issue – the defamation of the plaintiff by the defendant. A willingness to be sued or an anxiety to be sued indicated by such a challenge has no effect in limiting the defences open to the defendant. 429 While a retort to a defamatory attack attracts qualified privilege, that privilege does not extend to protect a riposte, that is a reply, to the retort. 430 Example

Kennett v Farmer [3.910] Kennett v Farmer [1988] VR 991 The defendant, a political correspondent and journalist, wrote an article in the Bulletin magazine which alleged that the plaintiff, who was at the time the leader of the Opposition in the Victorian Parliament, had told him that he would block Supply to the Government. The politician then appeared on radio and television programmes and denied that he had ever told the journalist that he would block Supply and that if the journalist insisted that he had said so, he was not telling the truth. The journalist, in riposte, also appeared on radio and television programmes to say that what the politician was now saying was not what he had originally told him and that the politician was either telling an untruth on the radio and television programmes or had told him an untruth at an earlier time. The journalist claimed that it was he who was attacked by the politician in the course of the politician responding to the original Bulletin article and that in turn all the journalist was doing was exercising his right of self-defence. It was held that while a retort to a defamatory statement, such as the original Bulletin article, may attract qualified privilege, that privilege does not extend to a riposte to the retort. Accordingly, privilege attached to the politician’s appearances on radio and television but not the journalist’s appearances on radio and television.

[3.920] The rule that qualified privilege attaches to a retort to a defamatory attack, 431 but not to a riposte to the retort may at first glance seem incongruous but may be supported on a number of grounds, including a need to encourage an end to defamatory exchanges, particularly in a climate in which editors or executive producers may not deem future rejoinders to be newsworthy. 432 Usually the media organisation itself will not have been the subject of a defamatory attack, but will merely be the means of communicating the retort. However, in order to ensure the effectiveness of any retort made via the media, there is a derivative qualified privilege which

429 430

Penton v Calwell (1945) 70 CLR 219 at 245. Kennett v Farmer [1988] VR 991 at 1003-1004.

431 432

See further Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31. See Kennett v Farmer [1988] VR 991 at 1003-1004.

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extends to protect any media organisation that published the retort. 433 However, the protection does not extend to gratuitous comments made by a journalist interviewing the person who is the subject of the original attack. 434 Corrections [3.930] A second exceptional case where the common law of qualified privilege may protect a media defendant occurs where the media publishes a correction to previously published information. 435 Public warnings [3.940] A third exceptional instance of common law qualified privilege that may offer protection for the media involves publication of public warnings against public threats such as a suspected terrorist attack or contaminated food 436 (although to the extent that that warning originates from the government this defence has already been discussed above in relation to protected reports). Example

Camporese v Parton [3.950] Camporese v Parton (1983) 150 DLR (3d) 208 The defendant newspaper journalist, reporting on matters of interest to consumers, wrote an article alleging that the plaintiff was selling canning lids that he knew were defective in that they could cause death due to formation of a deadly toxin. In fact, while the lids were defective, their use was unlikely to lead to formation of toxin. Although the journalist honestly believed what she had written, her research into the possibility of formation of toxin was inadequate. The Supreme Court of British Columbia held that the defendant was protected by qualified privilege. A matter of possibly deadly contamination of food was of vital concern to the general public. Accordingly, the defendant had a duty to communicate the matter to the public, and as there had been no express malice, had a good defence.

Malice [3.960] Unlike the protection offered by absolute privilege, that offered by qualified privilege may be lost in some cases. This will occur where the plaintiff can prove that the defendant used the occasion for an improper purpose. Where there is a purpose or motive that is foreign 433 434 435 436

Loveday v Sun Newspapers Ltd (1937) 59 CLR 503 at 514; Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 at 461; Bass v TCN Channel Nine Pty Ltd (2003) 60 NSWLR 251. Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 at 461. Dunford Publicity Studios Ltd v News Media Ownership Ltd [1971] NZLR 961. Camporese v Parton (1983) 150 DLR (3d) 208; Blackshaw v Lord [1984] QB 1; cf Bowin Designs Pty Ltd v Australian Consumers Association (unreported, Federal Court, Lindgren J, 6 December 1996) (consumer magazine warning public about alleged dangerous gas heaters held to attract qualified privilege).

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to the occasion and which actuates the making of the statement, there is said to be “express malice” or simply “malice”. 437 Moreover, when determining whether there has been malice, the plaintiff must show not only that there was an improper motive but that it was the dominant reason for the publication. 438 Mere proof of the defendant’s lack of belief in the truth, recklessness, ill-will, prejudice, bias, or other improper motive is not sufficient to establish malice. Instead, the plaintiff must show some ground for concluding that the lack of belief in the truth, recklessness, ill-will, prejudice, bias, or other motive existed on the privileged occasion and actuated the publication. 439 By contrast, in the special case where there is knowledge of falsity, proof of such knowledge is “almost invariably conclusive evidence” of an improper motive, except where the defendant is under a legal duty to publish the defamatory material, without endorsement. 440 Where there is recklessness which is so gross as to amount to wilful blindness, this may be treated as the equivalent of knowledge of falsity and justify a finding of malice. However, recklessness of a lesser kind may need to be combined with other factors, such as unreasoned prejudice on the part of the defendant, to present cogent evidence of improper motive and therefore abuse of the occasion. 441 By contrast, mere carelessness of expression or in making a defamatory statement never provides a basis for inferring malice: the defendant is required to use the occasion honestly, not carefully. 442 Ill-will may be inferred from the extravagancy of the allegation and the language in which it is expressed, 443 although some liberty is afforded in the case of a retort to a defamatory attack since a measure of resentment and antagonism is likely to be an incident of the occasion. 444 Malice may also be inferred where the publisher introduces into the publication matter that is wholly or substantially unconnected with the occasion giving rise to the privilege. 445 For example, the privilege may be lost in the case of a retort to a defamatory attack where the reply goes far beyond a mere response to the initial attack and becomes instead a counter-attack which raises unrelated imputations against the plaintiff. 446 An improper motive may also be inferred where the manner or extent of the exercise of the privilege exceeds what is reasonable for the occasion. Ordinarily it will not be reasonable to

437 438 439 440 441 442 443 444 445 446

Roberts v Bass (2002) 212 CLR 1 at 179. “Implied malice”, by contrast, is a term sometimes used at common law to denote a false and defamatory statement. Roberts v Bass (2002) 212 CLR 1 at 41. See also Horrocks v Lowe [1975] AC 135 at 149. Roberts v Bass (2002) 212 CLR 1 at 31 per Gaudron, McHugh and Gummow JJ. See also Gleeson CJ at 166. Roberts v Bass (2002) 212 CLR 1 at 32. Roberts v Bass (2002) 212 CLR 1. Roberts v Bass (2002) 212 CLR 1 at 41. Calwell v Ipec Australia Ltd (1975) 135 CLR 321. Muller v Hatton [1952] St R Qd 150. Adam v Ward [1917] AC 309 at 318; Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 228. News Media Ownership Ltd v Finlay [1970] NZLR 1089.

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resort to the media for communicating privileged information, although it has been seen that a person who is attacked in the media may legitimately retort to the attack to the same wide audience. 447 Improper motive has been found where there was a desire to publish a sensational story in order to enhance the reputation of a magazine and the author of the articles in question and to increase the circulation of the magazine, even in the absence of any particular desire to injure the plaintiff. 448 It was noted above that a publisher’s knowledge of falsity is “almost conclusive evidence” of an improper purpose, which will defeat qualified privilege. There may, therefore, be an exceptional case where the urgency in communicating a warning is so great or the source of the information is so reliable that the truth is not a matter that concerns the defendant and the publication of suspicion or speculation is justified. It has been suggested that an example would be where there is danger to the public from a suspected terrorist attack or the distribution of contaminated food or drugs. 449 As has been seen, such a situation is likely to attract protection for the media by reason of the interests of the public at large to be informed. Normally the malice of one participant in the defamatory publication cannot be imputed to another person. Thus, where liability is shared because the publication is jointly made, for example by partners or members of a committee, the malice of one defendant will not defeat the claim to privilege by the others. 450 However, if an employee in the course of employment is actuated by malice when publishing material, his or her employer will be imputed with that malice and will lose the protection of the privilege. 451 A media organisation may lose its derivative qualified privilege when it knows that its joint publisher has been actuated by malice and therefore lost his or her primary privilege. 452 Thus, if a television station presents a programme knowing that statements made by a participant in the programme are untrue or slanted to create an injurious impression which is known to be erroneous, it would be an abuse of the occasion by the television station. 453

447 448 449

Adam v Ward [1917] AC 309; Penton v Calwell (1945) 70 CLR 219. Lewincamp v ACP Magazines Ltd (No 3) [2008] ACTSC 81 at [250]. Blackshaw v Lord [1984] QB 1 at 27. Note, however, that in Bass v TCN Channel Nine Pty Ltd (2003) 60 NSWLR 251 at [122] Handley JA took a narrow interpretation of “exceptional cases” and saw no justification for publication of statements about terrorists or contaminated food or drugs when the publisher knows the statements to be false. It might still be possible to conceive of a situation where the public benefits from a false warning, such as where a false warning about a specific terrorist threat leads to greater alertness that discourages or even foils subsequent terrorist action. Contrast the broader interpretation of the “exceptional cases” adopted by Spigelman CJ (in dissent) at [29] which includes a third party publishing a retort to a defamatory attack. Wood CJ in CL at [168] supported the Blackshaw examples.

450

Egger v Lord Chelmsford [1965] 1 QB 248. Webb v Bloch (1928) 41 CLR 331. Bass v TCN Channel Nine Pty Ltd (2003) 60 NSWLR 251 at [114], [165]. Australian Broadcasting Corporation v Comalco (1986) 12 FCR 510 at 544 approved in Bass v TCN Channel Nine Pty Ltd (2003) 60 NSWLR 251 at [113]-[114]. See also [166].

451 452 453

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Extension of qualified privilege in cases of political communication 454 Implied constitutional protection [3.970] It has been seen that a limitation on the common law defence of qualified privilege is the requirement of reciprocity of interest, which only in exceptional cases has been recognised in the case of publications to the general public. Prima facie, therefore, common law qualified privilege is not an appropriate defence for a person who mistakenly but honestly publishes government or political matter to a large audience. 455 For example, it has been held that election speeches made to large audiences of unidentified persons are not necessarily privileged even if the speeches deal with matters of general interest to the electors. 456 Against this backdrop, the High Court in two decisions in 1994 457 held that a right to freedom of speech concerning political matters could be implied into the Commonwealth Constitution and provided a good defence to an action for defamation. 458 However, as discussed in Chapter 2, 459 the Court was sharply divided in relation to the legitimacy of implying rights into the Australian Constitution. Any uncertainty was to be removed by a subsequent unanimous joint judgment of the Court in Lange v Australian Broadcasting Corporation (ABC), 460 which managed to confirm an extended common law defence of qualified privilege related to political communication justified by reference to an implied constitutional freedom of communication but without needing to resort to the implication of personal rights into the Constitution. 461 The Court in Lange v Australian Broadcasting Corporation held that prima facie the existing rules of defamation, at least in those jurisdictions that applied the common law, failed to be appropriate and adapted to serve the system of government prescribed by the Australian Constitution 462 because they arguably provided no appropriate defence for a person who mistakenly but honestly published government or political matter to a large audience. 463 Yet the “common convenience and welfare of society” 464 required the people to be able to 454

In Chesterman (1997) 19 Adel LR 155 there is a useful discussion of this topic, which includes argument regarding the degree of conformity between this and other privilege and fair comment defences.

455 456

See [3.860]. Lange v Willis (1934) 52 CLR 637; see also Duncombe v Daniell (1837) 3 Car & P 223; 173 ER 470.

457

Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211.

458

These decisions developed the notion of a right to free speech implied into the Constitution first recognised in a non-defamation context in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd v Commonwealth (No 2) (1992) 177 CLR 106. See [2.90].

459 460 461

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. See also A Stone, “Freedom of political communication, the Constitution and the common law” (1998) 26 Fed LR 219.

462

In particular, sections such as ss 7 and 24 (senators and members of the House of Representatives “directly chosen by the people”) and 128 (amendment of Constitution requires a referendum) prescribe a system of representative and responsible government for the Commonwealth.

463 464

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 569-570. Toogood v Spyring (1834) 1 CM & R 181 at 193; 149 ER 1044 at 1050.

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communicate with each other with respect to matters which could affect their choice in federal elections or constitutional referenda or which could throw light on and assist in their evaluation of the performance of federal ministers and the conduct of the executive branch of government. 465 As McHugh J once explained: With the increasing integration of the social, economic and political life of Australia it is difficult to contend that the exercise or failure to exercise public functions or powers at any level of government or administration, or in any part of the country, is not of relevant interest to the public of Australia generally. 466

Accordingly, the court was prepared to declare that each member of the Australian community had an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affected the people of Australia and that the common convenience and welfare of the Australian society were advanced by discussion – the giving and receiving of information – about government and political matters. The interest that each member of the Australian community had in such a discussion therefore warranted an extension of common law qualified privilege to protect a communication made to the public on a government or political matter. 467

Elements of the defence [3.980] The parameters of this extension of common law qualified privilege might be summarised as follows: The communication must be about government or political matters [3.990] It was suggested in Lange v Australian Broadcasting Corporation that it embraced discussion of government or politics at not only a federal level but also a State or Territory level, and even at a local government level, whether or not it bore directly on matters at a federal level. Discussion of matters at State, Territory or local level might well bear upon the people’s evaluation of the performance of federal ministers or their departments and the choice that they have to make in federal elections or constitutional referenda. The existence of national political parties operating at federal, State, Territory and local government levels, the financial dependence of State, Territory and local governments on federal funding and policies, and the increasing integration of social, economic and political matters in Australia made that conclusion “inevitable”. 468 While the publication must concern government or political matters,

465 466 467 468

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 571. Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 264. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 571. In ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 Callinan J expressed a desire to revisit Lange, a suggestion dismissed by Kirby J. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 571-572.

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it is not necessary for the plaintiff to be a politician or other type of public figure: the High Court did not establish a “public figure” style defence akin to that applicable in the United States. 469 Moreover, it was recognised that in some respects the extended qualified privilege could go beyond what was required for the law of defamation to be compatible with the freedom of communication required by the Constitution. For example, discussion of matters concerning the United Nations or other countries could be protected by the extended defence of qualified privilege even if those discussions could not affect the choice of electors at federal elections or in amending the Constitution, or could not throw light on the administration of federal government. Thus, it was held that by reason of matters of geography, history and constitutional and trading arrangements, the discussion of matters concerning New Zealand (as in this case) may often affect or throw light on government or political matters in Australia. 470 The meaning of the expression “communication about a government or political matter” is imprecise. 471 A publication might concern a matter of public interest but not qualify as a government and political matter. 472 When determining the character of the publication a relevant factor will be the nature of the discussion, rather than the office or function of the person making the publication. 473 There is support 474 for the view that nothing said in Lange v Australian Broadcasting Corporation derogates from those matters identified in Theophanous v Herald & Weekly Times Ltd as included within the scope of a “political discussion”. It was said in Theophanous that “political discussion” extended to “all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about”. 475 However, Heerey J in the Rabelais case argued that Lange confined the scope of “political discussion” to matters concerning the system of representative and responsible government, but only to the extent that the text and structure of the Constitution establish it 476 and there is growing support for the view that the reasoning in Lange did not 469

470 471 472 473 474 475 476

As per New York Times v Sullivan 376 US 254 (1964): see Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1180], [1184]. See also S Walker, “Lange v ABC: the High Court rethinks ’Constitutionalisation’ of defamation law” (1998) 6 TLJ 9 at 17; TEF Hughes, “Defaming public figures” (1985) 59 ALJ 482. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 572. APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; 219 ALR 403 at [27] per Gleeson CJ and Heydon J. Peek v Channel Seven Adelaide Pty Ltd (2006) 94 SASR 196; 228 ALR 553 at [16]. Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 at 458, See, for example, Brown v Members of the Classification Review Board of the Office of Film and Literature Classification (1998) 154 ALR 67 at 80 per French J. See also Walker (1998) 6 TLJ 9 at 18. Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 124, adopting a statement by E Barendt, Freedom of Speech (1985), p 152. Brown v Members of the Classification Review Board of the Office of Film and Literature Classification (1998) 154 ALR 67 at 86; see also Chesterman (1997) 19 Adel LR 155 at 161-162. Cf the limitation of the expanded defence to matters of and concerning serving politicians or political candidates by Mildren J in Hart v Wrenn (1995) 5 NTLR 17; 124 FLR 135 at 137 (FLR), criticised as being too narrow in Walker (1998) 6 TLJ 9 at 19.

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equate government or political matters with matters of public interest. 477 For the time being, whether something is a “government or political matter” falls to be determined on a case by case basis. However, the phrase would seem to embrace discussion concerning: the conduct or fitness for office of elected members, 478 political parties, public bodies, public officers 479 and those seeking public office; 480 government conduct, 481 policy 482 or legislation; 483 and political views and public conduct of persons who are engaged in activities that have become the subject of political debate, including trade union leaders, Aboriginal political leaders, and perhaps political and economic commentators. 484 However, the mere fact that a publication mentions some political or government issue, or names some politician, does not mean that the publication is necessarily a communication “concerning” a government or political matter. 485 It is important to consider the true nature and character of the publication so that it may be properly characterised. 486 A relevant factor is that it is the nature of the discussion that is important rather than the office or function of the person making the publication, although the office or function might, depending on the circumstances, affect or colour the manner in which the nature of the discussion is characterised. 487 Whatever its meaning, “government or political matters” will not extend to, for example, a publication advocating the commission of a crime as a means of redistributing wealth in a 477 478

479 480 481 482

483

484 485

486 487

Peek v Channel Seven Adelaide Pty Ltd (2006) 94 SASR 196; 228 ALR 553 at [16]; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1. See, for example, Peterson v Advertiser Newspapers Ltd (1995) 64 SASR 152 (performance of parliamentary duties by elected member); cf Australian Broadcasting Corporation v Hanson (unreported, Qld CA, 28 September 1998) (“free and general discussion of public matters” did not extend to a purportedly satirical song relating to the sexual orientation and preferences of the then Member for Oxley). See, for example, Nationwide News Pty Ltd v International Financing & Investment Pty Ltd [1999] WASCA 95 (conduct of the ACCC and its chairman). See, for example, Brander v Ryan (2000) 78 SASR 234 at 249. See, for example, Moriarty and Wortley v Advertiser Newspapers Ltd (1998) 198 LSJS 31 (SA District Court, 9 July 1998) (cancellation of enquiry into government utility). See, for example, Sporting Shooters’ Association (Vic) v Gun Control Australia (1995) A Def R 52,030 (government policy concerning gun control); Nulyarimma v Thompson (1999) 96 FCR 153; 165 ALR 621 (Fed Ct) (government “10 point plan” policy on native title); Chapman v Conservation Council (SA) (2002) 82 SASR 449 (State or local government development policies). See, for example, Communications, Electrical, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Commissioner Laing of the Australian Industrial Relations Commission (1998) 89 FCR 17; 159 ALR 73 (“third wave” industrial legislation); Levy v Victoria (1997) 189 CLR 579 (legislation permitting duck hunting); Registrar of the Western Australian Industrial Relations Commission v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Workers Union of Australia, Engineering and Electrical Division WA Branch [1999] WASCA 170 (State legislation regulating political donations by industrial organisations). Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 124. Baltinos v Australian Consolidated Press Ltd (unreported, NSW Supreme Court, Scully J, 21 July 1995); Conservation Council of SA Inc v Chapman (2003) 87 SASR 62; APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; 219 ALR 403 at [28]; Peek v Channel Seven Adelaide Pty Ltd (2006) 94 SASR 196; 228 ALR 553 at [19]. Peek v Channel Seven Adelaide Pty Ltd (2006) 94 SASR 196; 228 ALR 553 at [19], Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 at 458; Peek v Channel Seven Adelaide Pty Ltd (2006) 94 SASR 196; 228 ALR 553 at [17].

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capitalist society from the rich to the poor. 488 It is also not enough for the subject matter to be something of “utmost public importance to the citizens” of a State or the Commonwealth, such as a report about the arrest and charging by police of a suspected child abuser. 489 Discussion of the conduct of a judge or magistrate, including the correctness or otherwise of his or her decisions, ordinarily has no connection with the concept of representative government and will generally fall outside the ambit of the Lange defence. 490 The implied freedom will only apply to communications concerning the judiciary in exceptional cases such as discussion of the appointment or removal of judges, the prosecution of offences, the withdrawal of charges, the provision of legal aid and the funding of courts. The principle applies in these exceptional cases because communications of this kind also concern the acts or omissions of the legislature or executive government. 491 It would seem that the defence does not require the political discussion to already be under way. 492 Accordingly, the “first cab off the rank” in a particular political discussion will be covered by the extended defence. 493 The defendant’s conduct in publishing must have been “reasonable” [3.1000] Reasonableness is a question to be judged in all the circumstances of the case. For this reason, it was seen as subsuming the additional elements identified in Theophanous, namely, the defendant being required to prove that it was unaware of the falsity of the matter published and that it did not publish the matter recklessly. In all but exceptional cases, the proof of reasonableness will fail as a matter of fact unless the publisher establishes that it was unaware of the falsity of the matter and did not act recklessly in making the publication. 494 The Court in Lange v Australian Broadcasting Corporation thought that as a general rule, a defendant’s conduct in publishing material will not be reasonable unless the defendant: • had reasonable grounds for believing the imputation was true; • took proper steps, so far as they were reasonably open, to verify the accuracy of the material; • did not believe the imputation to be untrue; and

488

Brown v Members of the Classification Review Board of the Office of Film and Literature Classification (1998) 154 ALR 67 at 87 (per Heerey J), 98 (per Sundberg J); cf French J at 80.

489 490

492

Deren v New South Wales (1998) Aust Torts Reports 81-463 at 64,859. Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [9]; Conservation Council of SA Inc v Chapman (2003) 87 SASR 62; Peek v Channel Seven Adelaide Pty Ltd (2006) 94 SASR 196; 228 ALR 553 at [12]; John Fairfax Publications Pty Ltd v Attorney General (NSW) (2000) 181 ALR 694 at [83]; O’Shane v Harbour Radio Pty Ltd (2013) 85 NSWLR 698 at [126]. APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; 219 ALR 403 at [65]; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [6]-[9]; Peek v Channel Seven Adelaide Pty Ltd (2006) 94 SASR 196; 228 ALR 553 at [9]. Walker (1998) 6 TLJ 9 at 19.

493 494

Hartley v Nationwide News Pty Ltd (1995) 119 FLR 124 at 125. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 573.

491

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• had sought a response from the person defamed and published the response made (if any), except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond. 495 It has been suggested that these factors are neither “principles of law” nor “essential elements” of the defence. 496 Thus, for example, it was held that it was not necessary to take a response from the persons defamed when they were freely making use of the media themselves to convey their points of view. 497 Nevertheless, in most cases failure to satisfy one of the factors will prove fatal. 498 It has been said that the expected journalistic standard is not set at “some pinnacle of unreal perfection”. 499 Nevertheless, sloppy or lazy journalism is unlikely to be regarded as resulting in a reasonable publication. 500 The defence will not be available where errors are made when they are easily discoverable 501 or where the defendant is wilfully blind as to the truth or falsity of the imputations. 502 Reasonableness is unlikely to be shown where efforts to obtain a response are viewed in the circumstances as being lax or half-hearted, or if the opportunity to respond is made subject to conditions, particularly when the journalist knows or ought to know that the subject would want to respond and/or the publication is not urgent. 503 In the case of an inadequate opportunity to respond, publication of the plaintiff’s denials when used merely to juxtapose against the defendant’s allegations will not be a sufficient substitute. 504 Further, the mere unreasonableness of the plaintiff’s behaviour will not automatically make the defendant’s publication reasonable. 505 The requirement of reasonableness has been a demanding standard for media defendants to meet in practice, considering that their conduct is judged objectively by courts with the benefit of hindsight, far divorced in time from the pressures of deadlines or other factors that 495

496 497 498 499 500 501 502 503

504 505

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 574. The first requirement is objective. The third is subjective. Neither amount to a requirement as under Defamation Act 1974 (NSW), s 22 that subjectively the defendant honestly believed in the truth of the publication: see Walker (1998) 6 TLJ 9 at 25-26. Brander v Ryan (2000) 78 SASR 234 was a case where seeking a response from the plaintiff was held to be not practicable. Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [92] per Gillard AJA. Conservation Council of SA Inc v Chapman (2003) 87 SASR 62 at 143. Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [92] per Gillard AJA; Lewincamp v ACP Magazines Ltd (No 3) [2008] ACTSC 81. Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [989]. See, for example, Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 (failure to confirm certain temporal facts which were basic to the report). See, for example, Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 (mayor criticising wrong company). Lewincamp v ACP Magazines Ltd (No 3) [2008] ACTSC 81 at [231]-[234]. See, for example, Moriarty and Wortley v Advertiser Newspapers Ltd [1998] SADC 3843 (9 July 1998) (half-hearted efforts); Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1018] (opportunity to respond subject to conditions). Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1019]. Brander v Ryan (2000) 78 SASR 234.

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may have attended the story. 506 It may not be sufficient to show “proper steps … to verify the accuracy of the material” if the media defendant relied on only one source. Further, when it comes to attempting to persuade a court that there were reasonable grounds for believing that an imputation was true, a media defendant may be required to identify the sources on which it relied in compiling the story. This may pose serious difficulties when those sources have asked not to be named or were promised anonymity in return for the supply of information. It is important to note that reasonableness of conduct is imported as an element only when the extended category of qualified privilege is invoked to protect a publication concerning a government or political matter that would otherwise be held to have been made to too wide an audience. Thus, for example, reasonableness of conduct is not a necessary element of the defence of qualified privilege which protects a member of the public who makes a complaint to a Minister concerning the administration of his or her department. 507 The publication must not have been actuated by malice [3.1010] The Court held that the publication must not have been actuated by malice 508 in the sense of the publication being made not for the purpose of communicating government or political informational ideas but for some improper purpose. 509 Existence of ill-will or other improper motive will not of itself defeat the qualified privilege: the publication must be actuated by the ill-will or improper motive. Also, considering that the subject matter of the communication will be government or politics, publication with the motive of causing political damage to the plaintiff or his or her party cannot be regarded as an improper motive. Nor can the vigour of an attack or the pungency of a defamatory statement, without more, ground a finding of ill-will or other improper motive. 510 Publication that exceeds what is necessary in manner or extent may be evidence of improper purpose. Collins cogently argues that, unlike, for example, a national newspaper, publication on the internet to people around the globe who do not have the same interest as the people of Australia in receiving information concerning Australian government or political matters may amount to a publication exceeding the necessary manner and extent. 511

506

507 508 509 510 511

See A Kenyon, “Lange and Reynolds qualified privilege: Australian and English defamation law and practice” (2004) 28 MULR 406. Brander v Ryan (2000) 78 SASR 234 is one of a few cases in which the Lange defence has been successful. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 573. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 citing Mowlds v Fergusson (1939) 40 SR (NSW) 311 at 327-329. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 574. For a discussion of malice at common law see [3.930]. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 574. Collins (2001), pp 129-130. Collins actually addresses this as a matter affecting the reasonableness of the publication, as it may be in relation to the Defamation Act 1974 (NSW), s 22 and now DA, s 30: see [3.1080]. At common law, exceeding manner and extent is evidence of abuse of privilege, which is preferred here: see also [3.960]. Either analysis might therefore be available in relation to the Lange defence, the effect being the same in any event.

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Common law public interest privilege after Reynolds and Jameel [3.1020] The House of Lords considered facts similar to Lange v Australian Broadcasting Corporation in Reynolds v Times Newspapers Ltd. 512 The response of a majority was to recognise a new-found “elasticity” in the common law enabling the court to give “appropriate weight, in today’s conditions, to the importance of freedom of expression by the media on all matters of public concern”. 513 In other words, there was a new acknowledgment that the “classical tests of reciprocal interest and duty or common interest” could be satisfied in the case of the media publishing at large in an appropriate case. In the subsequent House of Lords case Jameel v Wall Street Journal Europe Sprl (No 3) 514 Lord Hoffmann observed that Reynolds had seemed to have had little impact upon the way the law was applied at first instance and that it was “therefore necessary to restate the principles”. 515 The House of Lords saw the Reynolds defence as entailing at least two questions: (1)

Was the subject matter of the article, considered as a whole, a matter of public interest? The Reynolds defence had developed from the traditional form of qualified privilege based on a generalisation that in matters in the public interest, there could be said to be a professional duty on the part of journalists to impart information and a corresponding interest in the public in receiving it. That generalisation should now be regarded as a proposition of law rather than question of fact to be decided in every case. 516 In this connection there is familiar distinction between what is properly in the public interest and what may be merely of interest to the public.

(2)

If the publication, including the defamatory statement, passes the public interest test, the question becomes whether the steps taken to gather and publish the information were responsible and fair. This “responsible journalism” test should be applied in a practical and flexible manner having regard to practical realities. It is for the purposes of this test that Lord Nicholls in Reynolds developed his non-exhaustive list of guidelines. 517

Lord Hoffmann actually suggested a third test: that is, whether the inclusion of the defamatory statement was justifiable. The fact that the material was a public interest does not allow the journalist to drag in damaging allegations that serve no public purpose. They must form part of the story. Nevertheless, he saw this question as requiring a degree of latitude, making 512 513

Reynolds v Times Newspapers Ltd [2001] 2 AC 127. Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 204 per Lord Nicholls.

514 515 516

Jameel v Wall Street Journal Europe Sprl (No 3) [2007] 1 AC 359. Jameel v Wall Street Journal Europe Sprl (No 3) [2007] 1 AC 359 at [38]. This is a distinguishing factor from the traditional qualified privilege, which attaches to the occasion rather than the type of material. This has led some to suggest that the Reynolds defence is a “different jurisprudential creature” from the traditional defence from which it sprung: see, for example, Lord Hoffmann in Jameel v Wall Street Journal Europe Sprl (No 3) [2007] 1 AC 359 at [46] .. See in particular Lord Hoffmann in Jameel v Wall Street Journal Europe Sprl (No 3) [2007] 1 AC 359 at [48]-[56] and Baronness Hale at [145]-[149]. Lords Bingham (at [31]-[35]) and Hope (at [107]-[108]) discussed Reynolds in more general terms, as did Lord Scott (at [137]-[138]), who perceived no difference in the views of the court, but noted that if there was any difference he preferred the view of Lord Hoffmann.

517

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allowance for editorial judgment. The decision should not be made with the benefit of leisure and hindsight. His Lordship thought that to do so would make publication in the public interest too risky and would discourage investigative reporting. 518 The Supreme Court of the United Kingdom had an opportunity to consider the Reynolds defence and in particular expectations concerning verification in Flood v Times Newspapers Ltd. 519 When deciding whether to publish, and when attempting to verify the content of the publication, a responsible journalist should have regard to the full range of meanings that a reasonable reader might attribute the publication. 520 Whether the duty of verification imposed by the requirement of responsible journalism has been satisfied depends upon the facts of the case. It involves a spectrum, the steps required depending upon the extent to which the defamatory allegations that are being reported have been adopted or endorsed by the publication. 521 The more serious the gravity of the allegations, the more onerous will be the duty of verification. Thus, where the publication is not confined to the mere reporting of accusations, inquiries or reasonable grounds to suspect but instead asserts guilt, the duty of verification will correspondingly be more demanding. 522 Verification involves both a subjective and objective element – the journalist must believe in the truth of the defamatory allegation and that belief must be the result of a reasonable investigation and must be a reasonable belief to hold. 523 Example

Flood v Times Newspapers Ltd [3.1030] Flood v Times Newspapers Ltd [2012] 2 AC 273 The defendant published a report which stated that allegations had been made against the plaintiff, a police officer in the extradition unit, that he was the subject of a police investigation into whether he was guilty of corruption. Subsequently the police investigation concluded that there was no evidence that the plaintiff had acted corruptly. The plaintiff thereupon sued the defendant for defamation. The trial judge accepted the evidence of the plaintiff that he was not guilty of corruption. The defendant sought to rely upon a Reynolds defence. The Supreme Court of the United Kingdom held that the defendant’s defence was successful. It had been in the public interest for the accusation of corruption to be published. Merely naming the plaintiff was not contrary to responsible journalism because it would not have been possible to publish the details of the case without disclosing to those close to the plaintiff that he was the officer to whom related or bringing others in the extradition unit under suspicion. Further, where a journalist

518 519 520 521

Jameel v Wall Street Journal Europe Sprl (No 3) [2007] 1 AC 359 at [51]. Flood v Times Newspapers Ltd [2012] 2 AC 273. Flood v Times Newspapers Ltd [2012] 2 AC 273 at [51] per Lord Phillips P. Flood v Times Newspapers Ltd [2012] 2 AC 273 at [158].

522 523

See, for example, Hunt v Times Newspapers Ltd [2012] EWHC 1220 (QB). Flood v Times Newspapers Ltd [2012] 2 AC 273 at [79].

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Chapter 3 – Defamation Flood v Times Newspapers Ltd cont. alleges that there are grounds for suspecting that a person has been guilty of misconduct, the duty of verification requires that a responsible journalism should satisfy himself or herself that such grounds exist, but it is not necessary that he or she should know what those grounds are. Their existence may be based on information from reliable sources or inferred from the fact of a police investigation in circumstances where such an inference is reasonable. Before publishing such an article responsible journalism would require that the journalist be reasonably satisfied that the supporting facts are true and that there is a serious possibility that the plaintiff had been guilty of the misconduct of which he or she has been accused. That had been the case here.

[3.1040] The Reynolds defence was repealed by the Defamation Act 2013 (UK), s 4, which enacted in its place a new offence of “publication on a matter of public interest”. This defence arises where a statement complained of was, or formed part of, a statement on a matter of public interest and the defendant reasonably believed the publishing statement complained of was in the public interest. By contrast with the Reynolds defence, if the statement was, or formed part of, and accurate and impartial account of the dispute to which the claim was a part, the court must in determining whether it was reasonable for the defendant to believe that the state was in the public interest disregard any omission of the defendant to take steps to verify the truth of the imputation. The court must also make allowances for editorial judgement as it considers appropriate when deciding whether it was reasonable for the defendant to believe that the statement was in the public interest. It has in the past been held in the New South Wales Court of Appeal that for a number of reasons, including the influence on Reynolds of the Human Rights Act 1998 (UK) and the endorsement of the traditional common law approach by a unanimous High Court in Lange v Australian Broadcasting Corporation and, more recently, in Roberts v Bass, this change does not apply in Australia. 524 The restatement of Reynolds in Jameel post-dates both of those decisions but it too has been held to be at odds with the approach in Lange. 525 It remains to be seen whether the High Court is prepared to revisit its pronouncements and similarly adopt the more elastic approach to the concept of reciprocal duty and interest. 526 That said, even if the High Court were not to revisit Lange v Australian Broadcasting Corporation and adopt instead a common-law defence akin to the Reynolds defence, there would seem to be no reason why cases which have considered Lord Nicholls’ guidelines such as Flood v Times 524

525 526

John Fairfax & Sons Ltd v Vilo (2001) 52 NSWLR 373 at [107]-[112]; Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1168]-[1170]; John Fairfax Publication Pty Ltd v Hitchcock (2007) 70 NSWLR 484 at [63]. Griffith & Macartney-Snape v Australian Broadcasting Corporation [2008] NSWSC 764 at [758]. See further Bashford v Information Australia Pty Ltd (2004) 218 CLR 366 where a majority of the High Court was prepared to find an occasion of privilege arose in a case of an extensive publication of defamatory statements that could be related to a widely defined subject of public interest (in that case occupational health and safety) when they are published to persons who have some responsibility for matters falling within the subject of interest: cf, for example, McHugh J at 381 who saw such a proposition as a potentially expansive interpretation of common law qualified privilege with far-reaching consequences

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Newspapers Ltd should not have relevance when considering the application of similar guidelines now enacted as part of the statutory qualified privilege under the uniform defamation legislation.

Statutory qualified privilege for provision of information Generally [3.1050] While common law qualified privilege may have limited relevance to the media due to the requirement of reciprocity, the statutory qualified privilege provided by s 30 of the uniform defamation legislation 527 provides for greater protection for publications in the public interest. Section 30 applies to the publication of material where: • the recipient has an interest or apparent interest in having information on some subject; • matter is published to the recipient in the course of giving to him or her information on that subject; and • the conduct of the publisher in publishing the matter is reasonable in the circumstances. Section 30 is a re-enactment of the statutory qualified privilege for provision of information previously enacted by the New South Wales Defamation Act 1974, s 22. The case authorities that have interpreted this section will therefore continue to be relevant to the application of s 30.

Interest or apparent interest in having information [3.1060] For the purposes of s 30 “interest or apparent interest” has a broader meaning than the type of interest relevant to common law qualified privilege. 528 Section 30 provides that a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication the defendant believes on reasonable grounds that the recipient has that interest. Further, the interest or apparent interest of the recipient must be in knowing a particular fact, not simply as a matter of curiosity but as a matter of substance apart from its mere quality as news. 529 For example, it was held that the general audience of a television or radio programme or newspaper has an interest in receiving information in relation to matters such as the disappearance of a well known anti-drug campaigner from Griffith and the continued liberty of six Griffith men identified in a Royal Commission Report as being

527 528 529

ACT: s 139A; NT: s 27; SA: s 28. Austin v Mirror Newspapers Ltd [1986] AC 299 (PC); Griffith v Australian Broadcasting Corporation [2010] NSWCA 257 at [104]. Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 40.

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responsible for his murder, 530 the training regime for a rugby league team, 531 proposed changes to a government scheme for home buyers 532 and the competence of a business consultant. 533

Published in the course of giving information [3.1070] Whether the matter is published in the course of giving the recipient information on a subject is not affected by the imputations being untrue. 534 However, the imputations must be relevant to the information that is published. 535 The imputation must not be distinct or separate from matter published in the course of giving the audience information on the subject in question. 536

Conduct of the publisher in publishing the matter is reasonable [3.1080] While s 30, like its New South Wales predecessor, is designed to enlarge the protection afforded by the common law qualified privilege, it does not give carte blanche to the media to publish defamatory matter on the basis that the public has an interest in receiving information on the relevant subject. The section substitutes a requirement of reasonableness in the circumstances in lieu of the reciprocal duty and interest required by the common law qualified privilege. 537 Section 30(3) provides some guidance regarding the factors which a court may take into account when determining whether the publication is reasonable, viz: (a)

the extent to which the matter published is of public concern;

(b)

the extent to which the matter published concerns the performance of the public functions or activities of the person;

(c)

the seriousness of any defamatory imputation carried by the matter published;

(d)

the extent to which the matter published distinguishes between suspicions, allegations and proven facts;

(e)

whether it was necessary in the circumstances for the matter published to be published expeditiously;

(f)

the nature of the business environment in which the defendant operates;

(g)

the sources of the information in the matter published and the integrity of those sources;

(h)

whether the matter published contained the substance of the person’s side of the story and, if not whether a reasonable attempt was made by the publisher to obtain and publish a response from the person; and,

530

Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30.

531 532 533

Austin v Mirror Newspapers Ltd [1986] AC 299 (PC). Smith v John Fairfax & Sons Ltd (1987) 81 ACTR 1. Morgan v John Fairfax & Sons Ltd (No. 2) (1991) 23 NSWLR 374.

534 535

Austin v Mirror Newspapers Ltd [1984] 2 NSWLR 383 at 391. Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697; Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30.

536 537

Griffith v Australian Broadcasting Corporation [2010] NSWCA 257 at [113]. See [3.860].

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(i)

any other steps taken to verify the information in the matter published.

(j)

any other circumstances that the court considers relevant.

Relevant “other circumstances” might include, for example, whether each imputation was relevant to the subject about which information is being given and whether the manner and extent of publication exceeds what is reasonably required in the circumstances. In a given case publication on the internet, with its worldwide reach, may mean that the publication is unreasonable due to the manner and extent of publication exceeding what was necessary. 538 The previous New South Wales section did not prove to be a particularly attractive defence for the media, perhaps due to high expectations regarding what type of conduct should be regarded as reasonable. 539 Conduct and decisions which may have seemed reasonable at the time under the pressure of deadlines may not be considered reasonable by a court months or years later. Further, to the extent that sources of information may need to be disclosed in order to judge their “integrity”, the section continued to pose a problem for journalists. The list of guidelines in s 30(3) for the determination of reasonableness are based on the non-exhaustive list set out by Lord Nicholls in the House of Lords in Reynolds v Times Newspapers Ltd, 540 a case which expanded the common law qualified privilege in the United Kingdom. This list also appeared in the New South Wales section, with the exception of the reference to the “nature of the business environment in which the defendant operates” which is a new guideline created for the uniform defamation legislation. This, perhaps, is an effort by the Standing Committee for Attorneys-General to indicate that courts ought to take a more flexible approach to the media which takes into account the fact that it is a business often conducted in an environment involving the pressure of deadlines. This factor may allow Australian courts to follow overseas courts in allowed greater latitude to the media, particularly in the case of reporting matters in the public interest. 541 The objective truth or falsity of what is said is irrelevant to this defence. What the defendant must do is show that he or she acted reasonably in publishing the material. 542 Further, while an honest belief in the truth of the imputations will usually be a critical element in the proof of reasonableness, it may not always be an essential element: it is not the case that in all cases reasonableness cannot be established without proof of honest belief. 543 Section 30(3) involves a balancing exercise with respect to the various factors, in light of practical realities. 544 Reasonable conduct may demand that the person who is the subject of the allegations should be given an opportunity to respond to allegations made against him or 538 539

540 541 542

Collins (2001), p 133. John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346. Evatt v Nationwide News (unreported, NSW Supreme Court, Newman J, 6 March 1997) and Lear v Malter (unreported, NSW Supreme Court, Donovan AJ, 14 March 1997) have been two of the few cases where the media defendant was held to have acted reasonably and where the previous NSW defence was successfully relied upon: Gillooly (1998), p 202. Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 205. See, for example, Jameel v Wall Street Journal Europe Sprl (No 3) [2007] 1 AC 359. See further [3.990]. Austin v Mirror Newspapers Ltd [1986] AC 299 (PC).

543 544

Barbaro v Amalgamated Television Services Pty Ltd (1990) 20 NSWLR 493 at 500. Daily Examiner Pty Ltd v Mundine [2012] NSWCA 195 at [130].

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her. The defence may therefore fail if the defendant fails to provide an opportunity to respond or fails to mention a denial of the allegations. 545 However, if it is apparent that the person who is the subject of allegations will not agree to an interview, the journalist may be relieved from seeking one, particularly where there is other evidence corroborating the allegations. 546 As noted by the Supreme Court of the United Kingdom, the expectations in relation to verification may involve a spectrum: the more serious the gravity of the allegations, the more onerous will be the duty of verification. 547 The defence may fail if the defendant did not make adequate enquiries to verify his or her information, so that the defamatory imputation is based on a flimsy, or no, foundation. 548 Normally it will not be reasonable to publish what is no more than a rumour and speculation of a person’s allegedly discreditable conduct. 549 However, there may be a case where, for example, a defendant is excused from taking what might otherwise be regarded as adequate steps to verify the information because of the necessity to publish urgently, meaning that it would not have been practical to make further enquiries. 550 Further, where the defendant personally observed the event which forms the foundation of the published imputations where there is no basis for the defendant to doubt the accuracy of what was personally observed, he or she will not have acted unreasonably merely because he or she made no further inquiry into the accuracy of what was observed. 551 Also, the defendant does not conduct himself or herself unreasonably if he or she publishes the matter complained of notwithstanding his or her knowledge that the plaintiff does not want it published. 552

545

546 547 548

549 550

551 552

Hansen v Border Morning Mail Pty Ltd (1987) 9 NSWLR 44; Daily Examiner Pty Ltd v Mundine [2012] NSWCA 195 at [149].; cf Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1019] (report of denial should be more than utilised as a juxtapose to emphasise allegations). Baltinos v Australian Consolidated Press Ltd (unreported, NSW Supreme Court, Studdert J, 14 July 1989). Flood v Times Newspapers Ltd [2012] 2 AC 273 at [79]. Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697; Austin v Mirror Newspapers Ltd [1986] AC 299 at 318 (defence failed where newspaper published statements about the training methods of a rugby league trainer without speaking to the trainer, interviewing players or attending training sessions); Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 (failure to confirm certain temporal facts which were basic to the report); Daily Examiner Pty Ltd v Mundine [2012] NSWCA 195 at [149]. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 797. Daily Examiner Pty Ltd v Mundine [2012] NSWCA 195 at [130]. Nevertheless, an ongoing crisis in the provision of mental health services in a region did not mean that there was a necessity for an article to be published expeditiously and promptly: [150]. Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 48. Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 48.

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Malice [3.1090] Under s 30(4) of the uniform defamation legislation the defence will be lost if the plaintiff proves that the publication was actuated by malice, 553 as that term is understood at common law. 554 As at common law, malice may be inferred from the words of the publication itself where, considered as a whole, the language used is grossly exaggerated or disproportionate to the facts. 555

The relationship between the uniform defamation legislation and the extended common law qualified privilege [3.1100] In Lange v Australian Broadcasting Corporation the High Court stressed that it had only been necessary to examine the effect of the defamation law of New South Wales because the argument before it was conducted on the footing that the plaintiff’s action was to be determined solely by a regard to that law. 556 In the result, it was held that s 22 of the Defamation Act 1974 (NSW) ensured that even without the common law extension of qualified privilege developed by the court, the New South Wales law of defamation did not place an undue burden on communications falling within the protection of the Constitution. 557 In other words, a defendant in New South Wales had available to him or her both the Defamation Act 1974 (NSW), s 22 and the extended common law qualified privilege concerning communications related to government or political matters. While the Reynolds elasticity in common law qualified privilege was said to have not flowed on to common law qualified privilege in Australia, the New South Wales Parliament nevertheless appropriated the list of guidelines developed in that case to determine when it was appropriate for reciprocity to be relaxed and for the media to be able to claim the defence, as guidelines for when the publisher’s conduct would be regarded as reasonable for the purposes of s 22 of the Defamation Act 1974 (NSW). 558 As noted above, 559 this section lives on in the form of s 30 of the uniform defamation legislation. 560 Based on Lange itself, defendants in cases of defamatory publications concerning government or political matters should therefore be entitled to rely on s 30 of the uniform defamation legislation as an alternative to the extended common law qualified privilege, since s 30 will be consistent with the constitutional freedom of communication recognised in Lange. However, while both of these defences contains an element requiring the defendant’s conduct to have been reasonable, the guidelines provided for determining reasonableness 553

ACT: s 139A(4); NT: s 27(4); SA: s 28(4).

554

556 557 558

DA: s 24(2); ACT: s 134(2); NT: s 21(2); ACT: s 22(2). See further [3.960]. Pinniger v John Fairfax & Sons Ltd (1979) 26 ALR 55 at 61-62, applying Calwell v Ipec Australia Ltd (1975) 135 CLR 321 at 332-333. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 569. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 575. The guidelines were inserted as s 22(2A).

559

See [3.1050].

560

The Lange defence might be seen as a “political or government communication” subset of the wider statutory defence: A Kenyon“Lange and Reynolds qualified privilege: Australian and English defamation law and practice” (2004) 28 MULR 406 at 429.

555

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differ. Those identified in Lange are based on factors that were commonly taken into account when applying Defamation Act 1974 (NSW), s 22 as at the time of the High Court’s judgment, 561 which predated the inclusion of the Reynolds guidelines into that section. The Reynolds guidelines, with the addition of the guideline concerning “the nature of the business environment in which the defendant operates” now appear in s 30. Although there is some commonality between the two lists in the form of whether steps were taken to verify the accuracy of the material and whether the defamed person’s response was published or at least attempts made to obtain a response, s 30 no longer expressly refers to whether the publisher had reasonable grounds for believing the invitation was true, nor requires that the publisher not believe the invitation to be untrue, although in a given case it may be that these factors are relevant as “any other circumstances”, which may also be taken into account. By contrast, there are factors in the s 30 list which might be considered as holding greater promise for a media defendant. These include the extent to which the matter published was of public concern, the extent to which it concerns the performance of the public functions or activities of the defamed person, the seriousness of the defamatory imputation and the nature of the business environment in which the defendant operates. Consequently, while media defendants have in the past had difficulty in finding protection from the Lange defence and the original s 22 of the Defamation Act 1974 (NSW), s 30 of the uniform defamation legislation may have a wider application. If this is the result, and s 30 proves to be a more favourable defence then it may mean that while both may be pleaded in the alternative, the section will have reduced the significance of Lange in the defamation sphere. 562

Honest opinion and fair comment [3.1110] The freedom to express an honestly held opinion or to express a comment or criticism is an important aspect of freedom of speech and is accorded precedence over an unqualified right to individual reputation. 563 Honest opinion is an important defence for the media. Amongst other things, it allows the media to publish restaurant, literary, concert and art reviews, review and comment on theatre, cinema, music and sports, and review and comment on public affairs. At common law the balance is struck between free speech and reputation in this respect by a defence called “fair comment”. This has been restyled under the uniform defamation legislation as the “honest opinion” defence.

561

Chapman v Conservation Council (SA) (2002) 82 SASR 449. See [3.1000].

562

Although naturally it will remain significant in all other instances of limitations on free communications concerning government or political matters: see, for example, [3.730], [5.790], [7.570], [8.1050] and [9.30]. Alternatively, the courts could take a more flexible approach to reasonableness in the Lange defence to give greater account to the public interest, without fundamental change of the freedom of communication principle recognised in Lange: see an interviewee’s response noted in A Kenyon“Lange and Reynolds qualified privilege: Australian and English defamation law and practice” (2004) 28 MULR 406 at 431. However, since the public interest or concern may now be considered under the wider s 30 defence this step may have been rendered unnecessary. Lyon v The Daily Telegraph Ltd [1943] KB 56 at 72.

563

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Fair comment [3.1120] At common law, the “fair comment” defence has three elements: (1)

a comment rather than a statement of fact;

(2)

a subject matter of public interest;

(3)

the comment must be fair.

Comment rather than fact [3.1130] The defence requires a statement of opinion or comment, as opposed to a statement of fact. In other words there must be a “deduction, inference, conclusion, criticism, judgment, remark or observation” as distinct from a “direct statement concerning, or description of,” a matter. 564 For example, suppose the defendant stated: “Harry took illegal drugs at the party. Such conduct is disgraceful.” The first sentence would be a statement of fact and the second would be an expression of the defendant’s opinion or comment on Harry’s conduct. The first sentence would need to be justified or defended on the basis of privilege, while the second sentence may be the subject of a fair comment defence. 565 However, if the defendant merely asserted that Harry had been guilty of disgraceful conduct, without stating what that conduct was, then that would amount to an allegation of fact, for which there is no defence except justification or privilege. 566 The relevant test is not what the defendant intended to say, but rather whether an ordinary, reasonable recipient would understand it as being a statement of opinion or a statement of fact. 567 It is a question for the jury to decide what is fact and what is comment, unless no jury could reach any other conclusion. 568 Merely prefacing remarks with words such as “it seems to me” or “in my opinion” is not conclusive as indicating a comment. 569 An important requirement is that the facts upon which the comment is based must be “stated, referred to or notorious to those to whom the matter [was] published”. 570 In other words, the facts must either be expressly stated in the same publication as the comment, in another existing publication to which the publication containing the comment clearly refers, or to already be well known to the audience. Three examples illustrate the distinction between these alternatives: 564

Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 167-168.

565

See, for example, Carleton v Australian Broadcasting Corporation [2002] ACTSC 127 where allegations of plagiarism and “lazy journalism” against a television journalist after identifying the similarity between his report and an earlier report by another journalist were said to be “clearly” matters of opinion: at [220]. Kemsley v Foot [1952] AC 345 at 356 per Lord Porter. See also Gillooly (2004), p 62 where a similar example is given. Clarke v Norton [1910] VLR 494 at 501; Goldsborough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524 at 532.

566 567 568

569 570

Jones v Skelton [1963] SR (NSW) 644; [1963] 1 WLR 1362; [1963] 3 All ER 952 at 964 (All ER); O’Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166 at 174; Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 317. Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449. Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 316; Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at 270.

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• “the Minister is unfit to hold public office because he lied to Parliament” is an example of where the fact is expressly stated in the same publication as the comment; • “the Minister is unfit to hold public office because of what he said in Parliament last week” is an example of a fact being referred to; and • “Mr A (who is widely known to have pleaded guilty to perjury) is unfit to hold public office” is an example of facts that are notorious. 571 The purpose of the rule is that, in one way or another, the facts are made known to the persons to whom the publication was made to enable recipients to judge for themselves whether they agree with the opinion published by the defendant. 572 Sometimes this is referred to as including the “substratum of fact”, 573 although this term should not be understood as anything other than an express statement of the facts, reference or circumstance in which the facts that are notorious. 574 Failure to include sufficient linkage between the comment alleged and the factual material relied on by way of a statement of the facts or reference, where the facts are not notorious, may result in the publication being regarded as a statement of fact rather than opinion. 575 Example

Channel Seven Adelaide Pty Ltd v Manock [3.1140] Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 The defendant broadcast a promotion for its television programme Today Tonight which featured a picture of the plaintiff, a forensic pathologist who had given evidence at a murder trial and retrial, with a voice-over that stated: “The new Keogh facts. The evidence they kept to themselves. The date, dates and documents that don’t add up. The evidence changed from one court to the next.” The plaintiff sued for defamation, claiming that the broadcast had imputed that the plaintiff had deliberately concealed evidence from the trials. The defendant claimed that the words constitute fair comment on a matter of public interest. The High Court held that the four sentences in the promotion voiceover did not expressly state any facts on which the comment was being made. They did not identify the “evidence they kept to themselves” or any facts on which the statement was based. They did not specify the “date, dates and documents” or the discrepancies between them which prevented them from adding up. They did not say what the “new” facts were. They did not specify the “evidence” which changed or any facts on which that statement was based. Secondly, the four sentences did not identify “by clear reference”

571 572

573

Lowe v Associated Newspapers Ltd [2007] QB 580 at 600. Myerson v Smith’s Weekly Publishing Co (1923) 24 SR (NSW) 20 at 27; Goldsborough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524 at 531, 532; Kemsley v Foot [1952] AC 345 at 356; Sims v Wran [1984] 1 NSWLR 317 at 322; Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 327. Kemsley v Foot [1952] AC 345 at 357 per Lord Porter.

574 575

Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at 276. Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at 269.

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Australian Media Law Channel Seven Adelaide Pty Ltd v Manock cont. or otherwise any facts. Thirdly, it was not shown that there were any notorious facts on which those four sentences could be understood as making comment. No notorious facts were suggested by the statement “the new Keogh facts” – if they were new to viewers and only to be revealed when the programme being promoted was broadcast they could not be notorious.

[3.1150] Channel Seven v Manock demonstrates that brief advertisements are sometimes unpromising material for a defence of fair comment. The impact they are designed to achieve may be difficult to reconcile with the requirement that the allegation must be recognisable as comment and not as a statement of fact. 576 An exception to what has been described as “the conventional case” 577 of facts needing to be “stated, referred to or notorious to those to whom the matter [was] published” is where the factual basis for the comment is matter which has been submitted to the public for its consideration, such as a literary, musical or artistic work or sporting event. 578 This would also include, for example, the food and/or service in a restaurant. 579 The rationale for this exception is that the submission of the work or event to the public for its consideration amounts to an implied invitation for comment. 580 In such cases mere identification or reference to the work or event is sufficient. Were it otherwise, it would be necessary or at least very expedient to set out verbatim the entire contents of the subject matter upon which the opinion is made, such as the full text of a play. 581 In England this exception of matters submitted to the public for consideration was extended to cover how well-known newspapers were managed, including their accuracy, truthfulness and use of tone. 582 The validity of such an extension, and the scope of this exception is yet to be finally determined in Australia. 583

576

Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at 256 per Gleeson CJ. See also C v L [2005] SASC 315 (promotions for the A Current Affair television programme, which featuring an interview with a woman who claimed that her former de facto partner had an overbearing and arrogant manner towards her and treated her poorly, included the statement “you just can’t treat women like a doormat” extracted from the interview – it was held that while the programme itself may have had sufficient statement of the facts to provide a basis for the comment, the statement “you just can’t treat women like a doormat” in the promotions implied assertions of fact rather than comment and therefore were outside the ambit of the fair comment defence).

577 578 579 580 581

Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 341 per McHugh J. O’Shaughnessy v Mirror Newspapers (1970) 125 CLR 166; Kemsley v Foot [1952] AC 345 at 385; Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at 254. See, for example, Gacic v John Fairfax Publications Pty Ltd [2009] NSWSC 1403 at [173]. Gardiner v John Fairfax and Sons (1942) 42 SR (NSW) 171 at 173-175. Telnikoff v Matusevitch [1992] 2 AC 343 at 361.

582 583

Kemsley v Foot [1952] AC 345 at 385. Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at 283.

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Subject matter of public interest [3.1160] The comment must relate to a subject matter of public interest because free comment on such matters is supposed to promote the common good. 584 There are differing views concerning the meaning of “public interest” for these purposes. A broad interpretation suggests that “public interest” refers to matters in the public domain either because: (1)

they are such as to affect people at large so that they may be legitimately interested in, or concerned at, what is going on, or what may happen to them or to others; 585 or

(2)

they have been submitted to the public and thereby invited comment. 586

The first class includes, for example, the conduct of a person (usually the plaintiff) involved in matters of government or public administration; 587 so far as it is relevant to their public positions and not their private lives; 588 the conduct of the affairs of a public company or trade union; 589 or even the administration of a football team. 590 The second class relates to matters made available to the public including public places such as restaurants or entertainment facilities; literary, artistic and other works such as books, plays and newspapers; 591 and the performance by actors in public entertainment or sporting performances. 592 In relation to literary or artistic works, the criticism may relate to its content or form: it may be criticised for its treatment of life or morals that it depicts as much as for bad writing or style. 593 Even the work of a newspaper or broadcast critic can properly be a matter of public interest subject to criticism. 594 While such a broad interpretation was endorsed by Brennan CJ and Gaudron J in Bellino v Australian Broadcasting Corporation, 595 the majority when interpreting the meaning of “a subject of public interest” for the purposes of the previous fair comment defence in s 377(8) of the Queensland Criminal Code referred to “matter of public interest” under the common law 584 585 586

Lyon v Daily Telegraph [1943] KB 746 at 752. London Artists Ltd v Littler [1969] 21 QB 375 at 391 per Lord Denning. Kemsley v Foot [1952] AC 345 at 355.

587

Slim v Daily Telegraph Ltd [1968] 2 QB 157; Henwood v Harrison (1872) LR 7 CP 606; Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 217-218. Renouf v Federal Capital Press of Australia Pty Ltd (1977) 17 ACTR 35 (conduct of officer of the Department of Foreign Affairs relevant to his fitness for the office of secretary of that Department); cf Mutch v Sleeman (1928) 29 SR (NSW) 125 (criticism of member of parliament as being “a brutal wife-basher” not a matter of public interest). South Hetton Coal Co Ltd v North Eastern News Association Ltd [1894] 1 QB 133 (company); Duane v Granrott [1982] VR 767 (trade union). Allworth v John Fairfax Group Pty Ltd (unreported, ACT Supreme Court, Higgins J, 25 March 1993).

588

589 590 591

592 593 594 595

See for example, Thomas v Bradbury Agnew & Co Ltd [1906] 2 KB 627 (book); Merivale v Carson (1887) 20 QBD 275 (play); Kemsley v Foot [1952] AC 345 (newspaper); Harry Seidler & Associates Pty Ltd v John Fairfax & Sons Ltd (1986) Aust Torts Reports 80-002 (architecture). London Artists Ltd v Littler [1969] 2 QB 375; Cornwell v Myskow [1987] 2 All ER 504 (performance of actor); Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 (sporting performance). Kemsley v Foot [1952] AC 345 at 356. Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449. Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 189-198 (per Brennan CJ) and 240-242 (per Gaudron J).

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defence of fair comment as meaning “the actions or omissions of the personal institution engaged in activities that either inherently, expressly or inferentially invited public criticism or discussion”. 596 Such an interpretation focuses on the conduct of individuals rather than “some concept defined at a level of generality divorced from” such conduct, including “organised crime and corruption in Queensland” as alleged by the defendant in that case or the other topics that might be contemplated by the broad interpretation as set out above. 597 References to general topics such as “political matters” or the “administration of public affairs or institutions” are no more than “shorthand statements” to focus the attention on the individuals participating in those activities. 598 It is insufficient to make a matter in the public interest for the plaintiff to be a public figure who has a high public profile. It is not the case that public figures do not have a private life. 599 A public figure’s private behaviour or character may become a matter of public interest in one of two ways: either because it affects the performance of his or her public duties or because he or she makes it such a matter himself or herself. In relation to the second way, if the plaintiff deliberately puts himself or herself forward to the public as subscribing to such high standards in private behaviour so that he or she may be taken as having appealed to the public for its judgment on that private behaviour, it cannot then be heard to say that the public does not have the right to pronounce the judgment which he or she asked of it. 600

Comment must be fair [3.1170] There are different aspects to the requirement that the comment be “fair”. In the first place, the comment must be based on facts that are either true 601 or, if erroneous, published under privilege. 602 The former is based on the notion that a defendant cannot simply invent or misrepresent the facts and then claim that his or her opinion based on those facts is fair. 603 If the comment is based on facts expressly stated in the published material, the defendant must prove all those facts upon which the comment is based to be true in substance and failure to do so with respect to any one will result in the defence failing. 604 On the other hand, where the opinion is based not on facts stated in the published material but on facts assumed to be known to the recipient and only implied in the defamatory material, the defendant is required to only show what facts are to be implied and the truth of them. 605 Proof 596 597 598 599 600 601 602 603

604 605

Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 215 (per Dawson, McHugh and Gummow JJ). Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 217. Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 217-218. Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 165. Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 167. Goldsbrough v John Fairfax and Sons Ltd (1934) 34 SR (NSW) 524 at 532. See, for example, Lewincamp v ACP Magazines Ltd (No 3) [2008] ACTSC 81 at [288]. Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 320 Hunt v Star Newspaper Co Ltd [1908] 2 KB 309 at 319-320; Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at 252-253 (per Gleeson CJ), 266, 270 (per Gummow, Hayne and Heydon JJ). See, for example, Madden v Seafolly Pty Ltd [2014] FCAFC 30. Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510 at 553-554, 585. Kemsley v Foot [1952] AC 345.

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of facts sufficient to support the objective fairness of the opinion is all that is required. 606 The latter is an exception to the former, and is derivative of the protection provided for privileged publications. 607 It requires, however, that the commentator based the comment on a fair and accurate account of the statement. 608 Secondly, the comment must be “objectively fair”. The relevant question will be whether a fair-minded person could honestly express the opinion on the proved facts. 609 It does not mean that the opinion must be “fair” in the sense of being objectively reasonable 610 or correct. 611 Thus, if the opinion is honestly held, it may be obstinate, foolish, offensive or prejudiced. 612 The essence of the defence is that everyone is entitled to express an opinion provided those hearing or seeing the publication can identify it as an opinion and decide for themselves whether they agree with it. 613 However, even if the opinion is honestly held, the fair comment defence will fail where the comment was actuated by malice in the sense of spite or ill-will, or some irrelevant motive, such that it does not represent a disinterested judgment upon the subject matter. 614 As such, the notions of honesty and malice are distinct issues.

Honest opinion [3.1180] As may be seen, the name “fair comment” is something of a misnomer. This may have been the impetus for the name of the defence being changed when it was enacted in the uniform defamation legislation as s 31(1). 615 This section provides a defence if the defendant can show that: (1)

the matter was an expression of opinion rather than a statement of fact;

(2)

the opinion related to a matter of public interest; and

(3)

the opinion is based on “proper material”.

There is therefore a degree of commonality in the elements in the statutory and common law defences. 616 606

Gillooly (1998), p 131.

607 608 609

Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 321. Brent Walker Group Plc v Time Out Ltd [1991] 2 QB 33 at 45. London Artists Ltd v Littler [1969] 2 QB 375 at 392; Telnikoff v Matusevitch [1992] 2 AC 343 at 354.

610

Gardiner v John Fairfax and Sons (1942) 42 SR (NSW) 171 at 174; Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at 252 per Gleeson CJ. London Artists Ltd v Littler [1969] 2 QB 375 at 393.

611 612 613 614 615 616

Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at 252 per Gleeson CJ French v Triple M Melbourne Pty Ltd (No 5) [2008] VSC 553 at [10]. Renouf v Federal Capital Press of Australia Pty Ltd (1977) 17 ACTR 35; Gardiner v John Fairfax and Sons (1942) 42 SR (NSW) 171. ACT: s 139B; NT: s 28; SA: s 29. In the United Kingdom the common law defence of fair comment has been abolished under Defamation Act 2013 (UK), s 3 and replaced by a new “honest opinion” defence, where there is (a) a statement of opinion; (b) the statement indicated, whether in general or specific terms, the basis of the opinion; and (c) an honest person could have held the opinion on the basis of any fact which existed at the time the statement was

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Additional defences are now provided where the opinion published by the defendant is that of an employee or agent 617 or a commentator. 618 The first of these additional defences will provide express protection for publication of opinions by, for example, columnists, while the second should cover, for example, interviewees, guests appearing on talk shows or talkback shows and authors of letters to the editor. Freelance journalists might alternatively be seen as either an agent or commentator, depending on the relationship with the defendant.

Opinion rather than fact [3.1190] The principles relevant to judging whether a statement is comment rather than fact the purposes of the common law will also apply to whether a statement is opinion rather than fact for the purposes of s 31. 619 There must be a “deduction, inference, conclusion, criticism, judgment, remark or observation” rather than a “direct statement concerning, or description of,” a matter. 620 Further, in light of the views expressed by the majority of the High Court in Channel Seven Adelaide Pty Ltd v Manock it is likely that the opinion will need to be based on facts which must be “stated, referred to or notorious to those to whom the matter [was] published” 621 so that the recipient will be able to determine that it is an expression of opinion and form a view for himself or herself whether it is fair. The exception for work or events submitted to the public for its consideration will also apply. There was nothing in the passage of the uniform defamation legislation to suggest a watering down of this requirement so that it would be sufficient for the defence under s 31 to simply identify the subject matter of the comment in the publication rather than the facts themselves. 622

Matter of public interest [3.1200] Like the common law, honest opinion under s 31 must relate to a matter of public interest. A similar issue will arise concerning the exact scope of “public interest” for these purposes but it also will not extend to the private conduct of individuals unless that conduct has a bearing on public duties.

Based on proper material [3.1210] “Proper material” is defined as meaning material that is substantially true or which was published on occasion of absolute or qualified privilege (whether under the Act or at general law); or a publication covered by s 28 (public document or fair copy, summary, or

617 618 619 620 621 622

published or anything asserted to be a fact in a privileged that was published before the statement. This defence is defeated if the claimant shows that the defendant did not hold the opinion. Where, on the other hand, the statement is a republication or a republication of the statement made by another person the defence is defeated if the claimant shows that the defendant knew or ought to have known that the original author did not hold the opinion. DA: s 31(2); ACT: s 139B(2); NT: s 28(2); SA: s 29(2). DA: s 31(3); ACT: s 139B(3); NT: s 28(3); SA: s 29(3). Herald & Weekly Times Pty Ltd v Buckley (2009) 21 VR 661 at [84]. Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 167-168. Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 316; Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at 270. Herald & Weekly Times Pty Ltd v Buckley (2009) 21 VR 661 at [84].

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extract of a public document) or s 29 (fair report of proceedings of public concern). The requirement that the opinion be based on “proper material” reflects the common law requirement that the comment must be fair in the sense of being based on facts which are true or protected by privilege. Accordingly a defence of honest opinion cannot succeed if the publisher misstates the facts on which the opinion is based, unless the misstatement of facts is protected by privilege. In relation to facts protected by privilege under the uniform defamation legislation, honest opinion may be based on, for example, the statement made or fairly reported to have been made in Parliament, court or a public meeting related to a matter of public interest. Section 31(6) expressly provides that opinion has not ceased to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material.

Honesty [3.1220] Unlike the common law, which regards “fairness” or honesty as an essential element of the defence, under the uniform defamation legislation, absence of honesty is regarded as a means of defeating the defence. The significance of this change lies in the onus of proof. Requiring a defendant to prove his or her honesty may impose difficulties in practice from an evidentiary point of view. By contrast the uniform defamation legislation provides that the defence of honest opinion will be defeated if, and only if, the plaintiff is able to prove that in the case of publication of the opinion of: • the defendant, the opinion was not honestly held by the defendant at the time of publication; • an employee or agent, the defendant did not believe that the opinion was honestly held by the employee or agent at the time of publication; • a commentator, the defendant did not believe that the opinion was honestly held by the commentator at the time of publication. 623

Relationship between fair comment and honest opinion [3.1230] For the most part the defence of honest opinion under the uniform defamation legislation re-enacts the common law fair comment defence. There is, however, one important difference. The fact that s 31 provides that the defence will be defeated “if, and only if” the plaintiff can show that the opinion was not honestly held, or that there was no belief that the opinion was honestly held by the employee/agent/commentator, without mention of malice would seem to suggest that the fact that the opinion was actuated by malice, including ill will or spite, will not cause the defence to fail. It may be that the presence of malice in an appropriate case constitutes evidence of an absence of honesty. Otherwise, while the two defences may continue to be pleaded in the alternative it may be that the statutory honest opinion defence has wider application than the common law fair comment defence. 623

DA: s 31(4); ACT: s 139B(4); NT: s 28(4); SA: s 29(4).

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Relationship between fair comment/honest opinion, justification and privilege [3.1240] As already noted, where an imputation is characterised as both comment/opinion and fact both the fair comment/honest opinion defence and the defence of justification may be available. 624 However, if the facts stated in the publication that form the basis of the opinion are themselves defamatory the defendant will need to plead justification or privilege and will be unable to plead fair comment or honest opinion. 625 Proving an opinion “correct” for the purposes of a justification plea entails a heavier burden than a fair comment defence, 626 which only requires the defendant to show that the opinion was “objectively fair” in the sense of being honestly held. 627 The defendant’s state of mind is irrelevant to a plea of justification, but a fair comment defence, like qualified privilege, will fail if the defendant was actuated by malice while an honest opinion defence will fail if the opinion is not honestly held. Further, the defence of comment will not be available in relation to a statement only capable of being a statement of fact. 628

Innocent dissemination [3.1250] It has already been noted that the criterion of liability is the understanding produced in the recipient and not the intention actuating the publisher. 629 Nevertheless, an innocent intention may be relevant for the purposes of the defence of “innocent dissemination”. The innocent dissemination defence in the uniform defamation legislation replaces a variety of differing provisions in that the previous statutes. Under s 32, 630 the defence requires the defendant prove that: • he or she published the matter merely in the capacity, or as an employee or agent, of a “subordinate distributor”. A “subordinate distributor” is someone who was not the first or primary distributor of the matter, was not the author or originator of the matter, and did not have any capacity to exercise editorial control over the content or publication of the matter; • he or she neither knew, nor ought reasonably to have known, that the matter was the defamatory; and • such lack of knowledge was not due to any negligence on his or her part. The defence operates as an exception to the general rule that all persons who participate in the publication of defamatory matter are jointly liable for it. However, the defence is available 624 625 626

See [3.680]. Broadway Approvals v Odhams Press [1964] 2 QB 683. See further London Artists Ltd v Littler [1969] 2 QB 375 at 393.

627 628

Sutherland v Stopes [1925] AC 47 at 62. Griffith v Australian Broadcasting Corporation [2010] NSWCA 257 at [54]; Trad v Harbour Radio Pty Ltd [2011] NSWCA 61 at [57]; Spiller v Joseph [2010] 3 WLR 1791.

629 630

E Hulton & Co v Jones [1910] AC 20; Lee v Wilson (1934) 51 CLR 276 at 287-292. ACT: s 139C; NT: s 29; SA: s 30.

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to those who have only taken a subordinate part of in disseminating it. The section proceeds to provide a non-exhaustive list of examples of parties who are regarded as subordinate distributors, namely: • a bookseller, newsagent or news vendor; • a librarian; • a wholesaler or retailer the matter; • a provider of postal or similar services; • a broadcaster of a live programme (whether by television, radio or otherwise) containing the matter in circumstances in which the broadcaster has no effective control over the person who makes the statements that comprise the matter; • a provider of services consisting of (i) the processing, copying, distributing or selling of any electronic medium in or on which the matter is recorded or (ii) the operation or provision of any equipment, system or service by means of which the matter is retrieved, copy, distributed or made available in electronic form; • an operator of, or provider of access to, a communication system by means of which the matter is transmitted, or made available, by another person over whom the operator or provider has no effective control; or, • a person who, on the instructions or at the direction of another person, prints or producers, reprints or reproduces, or distributes the matter for or on behalf of that other person. A “broadcaster of a live programme (whether by television, radio or otherwise) containing the matter in circumstances in which the broadcaster has no effective control over the person who makes the statements that comprise the matter” may include a broadcaster relaying content that originates from another broadcaster. Whether the relaying broadcaster has “effective control” over the person who makes the defamatory statement will depend upon the circumstances. Example

Thompson v Australian Capital Television Pty Ltd [3.1260] Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 The programme The Today Show was broadcast live to air from the studios of Channel 9 in Sydney. Pursuant to a licence agreement, the programme was received by microwave link at Channel 7’s transmitting site in the Australian Capital Territory and relayed from there by a further microwave link to the studios of Channel 7 in the Australian Capital Territory. From those studios it was broadcast to viewers in the Australian Capital Territory and nearby parts of New South Wales. The programme in question included a live interview with a young woman during which it was alleged that her stepfather had committed incest with her and had fathered her child. The stepfather sued Channel 7 and Channel 7 pleaded, inter alia, the defence of innocent dissemination.

[3.1260] 129

Australian Media Law Thompson v Australian Capital Television Pty Ltd cont. The High Court held that while Channel 7 did not participate in the production of the original material constituting the programme, it had the ability to control and supervise the material it televised. It was true that time did not permit monitoring the content of the programme between its receipt at the transmitting site and its telecast from the studios in the Australian Capital Territory, but it did not follow that Channel 7 was merely a conduit for the programme and hence a subordinate disseminator. It was Channel 7’s decision that the telecast should be near instantaneous, an understandable decision given the nature and title of the programme, but its decision nevertheless. Given that the nature of a live to air current affairs programme carries a high risk of defamatory statements being made, it would have been curious if Channel 7 could claim to be a subordinate disseminator simply because it adopted the immediacy of the programme. The defence therefore failed.

[3.1270] This case was decided in relation to an “innocent dissemination” defence under one of the previous defamation statutes, pursuant to which the relevant question was whether there was effective control over the content of the publication. Nevertheless, it might be argued that in such circumstances there was equally effective control over the person making the defamatory statement. Similar questions may be raised in relation to, for example, television or radio talkback programmes. It might be thought that a broadcaster of such a show has no effective control over the callers or interviewees who contribute to the show, and for that reason such a broadcaster should be regarded as a subordinate disseminator. Once again time would not allow a proper monitoring of the statements made by contributors for defamatory content. However, in such a case it is possible to raise a similar argument to that which was accepted in Thompson v Australian Capital Television. Talkback programmes have the same propensity for attracting defamatory content, perhaps an even greater propensity. Moreover they clearly have control over the topics that they raise for discussion by their callers or guests. In other words, it is a risk that broadcasters choose to take when they make the business decision to broadcast such shows, and to feature particular topics for discussion. In effect, in some cases they may be inviting defamatory statements. In such a case, the broadcasters cannot claim that they were merely innocent disseminators because they had no effective control over the makers of those statements and the words they might say. The position might be different where, for example, a sports reporter is conducting a post-match interview and the interviewee unexpectedly makes a defamatory statement, or a radio station is broadcasting a less volatile programme, such as a gardening or pet advice show, and a caller or guest makes an unexpected defamatory remark. By contrast, it may be that an internet service provider who exercises no editorial control over content on its bulletin board may be seen as an innocent disseminator, provided any ignorance of defamatory content was not negligent in the circumstances. 631 One relevant factor for this question may be the practicality of monitoring a large volume of material and the 631

See furrther Cubby Inc v CompuServe Inc 776 F Supp 135 (SDNY) (1991).

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technology required. The defence may also be available to a search engine for the period prior to notification. 632 However, the defence would clearly not be available where a service provider or search engine has been advised of the presence of defamatory material and has failed to remove it within a reasonable time. 633

Triviality [3.1280] Section 33 of the uniform defamation legislation 634 provides a defence where the circumstances of the publication are such that the person defamed is unlikely to sustain any harm. The principles governing this section may be listed as follows. 635 First, the section requires an examination of the circumstances at the time of the publication and a consideration respectively of the likelihood of harm. 636 Subsequent acts or statements need or can have only limited bearing on the question. 637 Secondly, for this defence to apply, the triviality must relate to the circumstances “of the publication” and not, for example, the reputation of the person defamed, such as a prior tarnished reputation. 638 Those circumstances extend beyond the content of the publication itself and include the occasion and surrounding circumstances of the defamatory statements. 639 Circumstances “of the publication” may therefore include, for example, the extent of the publication, the identity of the recipients and any special knowledge they may have had of the defamed person, and the defamatory nature of the imputation measured against the size of the audience. 640 As such the defence may have limited relevance for the media for defamatory matter published to the general public, as opposed to, for example, defamatory words spoken to a couple of friends in a bar. 641 Circumstances “of the publication” may, however, not be sufficiently wide to encompass the previous bad reputation of the plaintiff. 642

632 633

Bleyer v Google Inc LLC (2014) ALR 529 (NSWSC). Trkulja v Google (No 5) [2012] VSC 533 at [41].

634 635 636 637

ACT: s 139D; NT: s 30; SA: s 31. See Barrow v Bolt [2015] VSCA 107 at [34]-[38] per Kaye JA. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 799. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 799.

638 639 640 641

Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691 at 68,947. Barrow v Bolt [2013] VSC 599 at [62]. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 800. See, for example, Cornes v Ten Group Pty Ltd [2011] SASC 104 at [113]. Cf Barrow v Bolt [2013] VSC 599 where a journalist successfully relied on the defence in relation to “mild” defamatory imputations about a complainant to the Australian Press Council published to a “minute” audience consisting of the journalist’s employer and an officer of the APC. Jones v Sutton (2004) 61 NSWLR 614, 621 [30]; King and Mergen Holdings v McKenzie (1991) 24 NSWLR 305 at 309–310; Chappell v Mirror Newspapers Ltd (1984) Aust Torts Rep 68-948.

642

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Thirdly, “unlikely to suffer any harm” does not mean “more probable than not” – instead, the defendant must demonstrate that there is an “absence of a real chance” or “the absence of a real possibility of [any] harm”. 643 Fourthly, the defendant bears a heavy onus to negate not merely that there would be substantial harm, but that there would be harm at all. 644 In this connection, it remains to be settled whether “harm” means only injury to reputation or whether it includes injury to feelings. 645 On the one hand the New South Wales Court of Appeal held in Morosi v Mirror Newspapers Ltd that the equivalent of s 33 could not be relied on based on the plaintiff’s existing bad reputation because his feelings (as opposed to his reputation) were likely to be hurt when he found that bad reputation spread across a newspaper. 646 By contrast, a differently constituted New South Wales Court of Appeal in Jones v Sutton suggested that whether or not feelings were hurt was a matter for damages but was irrelevant to s 33. 647 The issue is complicated from a statutory interpretation perspective because the use of the words “the harm” in s 34 and s 36 suggests that “any harm” in s 33 includes injury to feelings and distress whereas the use of the term “harm in” s 11 supports the contrary position. 648 This is because s 11(3) refers to the court considering the “extent of harm” in each relevant Australian jurisdiction for the purposes of deciding which area the harm as close connection, thus suggesting that “harm” as used in the uniform defamation legislation must mean harm to reputation since harm to feelings does not differ across various jurisdictions. 649 Final determination of the issue will need to reconcile two relevant considerations: the fundamental basis of defamation is damage to reputation in the eyes of reasonable ordinary members of the community, not the hurt feelings of the plaintiff. Nevertheless, it is well recognised that one of the objectives of the award of damages is compensation for the distress suffered by the plaintiff as a result of the publication of the defamatory material. 650

Consent [3.1290] There is no defence of consent under the uniform defamation legislation. However, under the common law, there is a defence that the plaintiff expressed or impliedly consented to the act being done towards him or her of which he or she complains. However, the consent must be to the publication of the particular imputation which was conveyed. 651 The defence 643 644 645 646 647

648 649 650 651

Jones v Sutton (2004) 61 NSWLR 614 at 624. Skalkos v Assaf (2002) Aust Torts Reports 81-644 (NSWCA); Szanto v Melville [2011] VSC 574 at [157]. Barrow v Bolt [2015] VSCA 107 at [44]. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 800. Jones v Sutton (2004) 61 NSWLR 614 at 623; but see Barrow v Bolt [2015] VSCA 107 at [49]. See also the discussions in Szanto v Melville [2011] VSC 574 and Enders v Erbas & Associates Pty Ltd [2014] NSWCA 70, neither of which states a concluded view. Barrow v Bolt [2015] VSCA 107 at [51]. Barrow v Bolt [2013] VSC 599 at [66]. See Barrow v Bolt [2015] VSCA 107 at [52]-[56]. Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 at 525 per Dixon J; Moore v News of the World Ltd [1972] 1 QB 441 at 448.

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does not mean that if there is consent to publication of one kind, there will be a voluntary assumption of risk that the publication will convey an imputation which was not anticipated. 652 Example

Ettingshausen v Australian Consolidated Press Ltd [3.1300] Ettingshausen v Australian Consolidated Press Ltd (unreported, NSW Supreme Court, 11 March 1993). The plaintiff, a member of the touring Kangaroos Rugby League team was photographed naked under a shower. The defendant subsequently published a photograph in its magazine HQ which, while grainy, was capable of being interpreted as depicting the plaintiff’s penis. The plaintiff alleged that while he knew that the photographer was the official team photographer, and that he intended to use photographs taken on the tour in a book to be published for a charity, he assumed that the photographer would “choose wisely” which photographs would be used in the book, that they would be “in good taste” and that he would be informed if any photograph of him in the book was to be produced elsewhere. Hunt CJ in CL of the Supreme Court of New South Wales held that for the defence of consent the defendant must establish that the plaintiff had consented to the act being done towards him or her of which he or she complains. The first of the acts of which the plaintiff complained was that the photograph was published in a context which conveyed the imputation that he had consented to its publication showing his penis. It was his consent to that act which the defendant was required to establish. Any implied consent by the plaintiff to the reproduction of the photograph in a publication with a widespread readership was not a consent to the publication of everything which the photograph may show. There was nothing in the evidence to suggest that his consent went so far. Therefore it was not sufficient for the defendant to establish that, having consenting to the photographer taking the photograph, the plaintiff had voluntarily assumed the risk that the photographer would act so irresponsibly so as not to crop the photograph to be reproduced in his book so that it would not show his penis. Further, while the plaintiff may have consented to the reproduction in a magazine of a photograph of him which had already appeared in a book being published for charity (for example, by way of publicity for the book), there was no evidence that the plaintiff had consented to the reproduction in a magazine such as the defendant’s magazine of any photograph which had not already passed a test of good taste which would be expected for photographs included in a book being published for charity.

[3.1310] It may not be sufficient for the defence that the plaintiff merely allowed himself or herself to be interviewed, especially where the plaintiff does not see the interview “written up” before publication. Moreover, it may not be sufficient for the defendant to invite the plaintiff to 652

Ettingshausen v Australian Consolidated Press Ltd (unreported, NSW Supreme Court, Hunt CJ in CL, 11 March 1993).

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repeat a defamatory remark in the presence of another if such a challenge is interpreted as merely a mark of defiance rather than a consent. 653 In jurisdictions which allow jury trials, whether there was consent to the imputation and whether that consent was exceeded or not is a question of fact for the jury.

Remedies Damages Purpose of damages [3.1320] For disputes that proceed to court, the remedy usually sought by a defamed person is an award of damages. Since defamation is a tort, the rules of causation and remoteness apply in the normal way. An award of damages has three overlapping purposes: vindication of the plaintiff’s reputation, consolation for the plaintiff’s personal distress and hurt caused by the publication, and reparation for the harm done to the plaintiff’s personal and (if relevant) business reputation. 654 Injury to the plaintiff’s feelings includes the anxiety and uncertainty associated with litigation properly undertaken to vindicate the plaintiff’s reputation. 655 Substantial damages may be appropriate where vindication is of particular importance in the circumstances, such as where the plaintiff’s professional reputation and personal honesty have been seriously impugned. 656 Further, economic loss may also be recovered where, for example, the defamatory publication was a cause of the plaintiff being dismissed from his or her position. 657 Significance may also be placed on the defendant’s standing in the community and the authority ordinarily attached to his or her statements, as well as if the statements are published in the course of a concerted campaign which may have a cumulative effect. 658 Compensation here is a solatium rather than a monetary recompense for harm measurable in money. 659 This is because, unlike other injuries where the loss may be able to be assessed with some precision, it is impossible to ascertain exactly how far other people’s minds have been affected or to equate damage to reputation to a sum of money. Assigning a sum of money as sufficient to remedy personal distress and hurt and harm to personal and/or professional reputation translates losses which have no market value into amounts of 653 654

657

Orr v Isles [1965] NSWR 677 at 694. Carson v John Fairfax & Sons Pty Ltd (1993) 178 CLR 44 at 60. See also Uren v John Fairfax & Sons Pty Ltd (1965) 117 CLR 118 at 150 per Windeyer J; Humphries v TWT Ltd (1993) 120 ALR 693 (Fed Ct (FC)); Holt v TCN Channel Nine Pty Ltd [2014] NSWCA 90. Uren v John Fairfax & Sons Pty Ltd (1965) 117 CLR 118 at 150. Crampton v Nugawela (1996) 41 NSWLR 176 (CA) (imputations caused plaintiff to lose the previous eminent and honoured position he had held in his field in this country and prevented him from obtaining a more eminent and honoured position internationally). Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519.

658 659

Chapman v Conservation Council (SA) (2002) 82 SASR 449. Uren v John Fairfax & Sons Pty Ltd (1965) 117 CLR 118 at 150 per Windeyer J.

655 656

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money. 660 The best that can be achieved is to have in mind a wide bracket within which any sum could be regarded by the person fixing the compensation as not unreasonable. 661 It should be borne in mind, however, when dealing with defamation in a permanent form, such as may be published by the media, that compensation for harm to reputation must not only cover the estimated sum of past and future losses but cover also the case of that libel or defamation, driven underground by the action, emerging from its lurking place at some future date so that the plaintiff may be able to point to a sum awarded which is sufficient to convince a bystander of the baselessness of the charge. 662 Where a plaintiff is a trading company and is able to sue under the uniform defamation legislation, different considerations apply. A company cannot be injured in its feelings, only its pocket. Its reputation can be injured but that injury must sound in money. Nevertheless, the injury need not necessarily be confined to the loss of income, but may also include damaged goodwill. 663

Calculation of damages [3.1330] Even in those jurisdictions in which the action may be heard before a jury, 664 it is the judge who has the task of calculating the appropriate measure of damages. 665 The uniform defamation legislation provides a guideline to the extent that the court must ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded. 666 It would be appropriate, for example, for a court to have regard to current level of awards for pain and suffering in personal injury claims to ensure that there is a rational association between the injury to reputation and the amount of damages awarded. 667 However, the award of damages is to provide reparation for the harm done to the particular plaintiff’s reputation, reflecting the subjective effect of the defamation on the particular plaintiff. It follows that drawing direct comparisons between particular cases of defamation are apt to mislead, just as the drawing of direct comparisons in personal injuries cases can mislead. 668 A judge may express a low opinion of the plaintiff’s claim by making its award contemptuously small. The uniform defamation legislation also provides that damages for non-economic loss are limited to a maximum of $250,000 or such other amount as may be adjusted annually in accordance with the percentage change in the average weekly total earnings of full-time adults over the preceding four quarters as calculated by the Australian 660 661

Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at 349. Cassell & Co v Broome Ltd [1972] AC 1027 at 1085 per Lord Reid.

662 663

Cassell & Co v Broome Ltd [1972] AC 1027 at 1070. Lewis v Daily Telegraph [1964] AC 234 at 262; Australian Broadcasting Commission v Comalco (1986) 12 FCR 510 at 599.

664 665 666

Namely New South Wales, Queensland, Tasmania, Victoria and Western Australia. See DA: s 22(3). DA: s 34; ACT: s 139E; NT: s 31; SA: s 32.

667 668

Carson v John Fairfax & Sons Pty Ltd (1993) 178 CLR 44 at 56-60. Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at 350.

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Statistician. 669 Further, in awarding damages the judge must disregard the malice or other state of mind of the defendant at the time of the publication except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff. 670 The general rule that tortfeasors must take their victims as they find them applies to defamation. Accordingly, a damages award may be increased where the plaintiff was of a particularly good reputation, 671 or was particularly susceptible to criticism. 672

Aggravated damages [3.1340] Aggravated damages may also be awarded where the plaintiff’s hurt has been increased by the conduct of the defendant, 673 including conducting a defence where there was behaviour that was in some way unjustifiable, improper or lacking in bona fides. 674 This may be contrasted with a bona fide defence raised properly or justifiably in the circumstances which are known to the defendant, and any evidence given honestly in support of that defence, which cannot be taken into account when deciding damages. 675 Persistence in a plea of justification does not necessarily amount to a lack of bona fides, impropriety or unjustifiability. It may, however, increase the scope of the publication and the effect on those who read/heard/saw it and properly result in compensation for continuing harm as a component of normal compensatory damages. 676 A failure to apologise or retract may warrant aggravated damages where the failure amounts to conduct which is in some way unjustifiable, improper or lacking in bona fides. 677 This includes a situation where the defendant rejects the plaintiff’s request for an appropriate apology and instead makes a deficient or incompetent “apology”. 678 Mere negligence in the conduct of a journalist, such as failure to check a source or follow up a lead will not be sufficient to support a claim for aggravated damages. 679 Instead, gross negligence or “reckless disregard of an appreciable risk” is required. 680 669

DA: s 35; ACT: s 139F; NT: s 32; SA: s 33.

670

DA: s 36; ACT: s 139G; NT: s 33: SA: s 34. Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474. Humphries v TWT Ltd (1993) 120 ALR 693 at 706.

671 672 673 674 675 676 677

678

679 680

Lamb v Cotogno (1987) 164 CLR 1 at 8; Cassell & Co v Broome Ltd [1972] AC 1027 at 1071, 1125. Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 248-250; Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 495-497; Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 653. Triggell v Pheeney (1951) 82 CLR 497 at 514. Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at 237-238 per Toohey J (with whom Dawson and McHugh JJ concurred). Howe v Lees (1910) 11 CLR 361 at 373; Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 660, 665; Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 77 at 78; cf Edginton v South Australian Telecasters Ltd (1986) 126 LSJS 254 at 258-259. Packer v Australian Broadcasting Corporation (1993) 116 FLR 306 at 312 (purported “apology” asserted a lack of intent to convey defamatory meaning but scoffed at suggestion the imputations were conveyed, imputed undue sensitivity to plaintiff, hinted that the complaint was merely that of lawyers and thereby not genuine, and did not expressly deny the allegations previously made – damages award of $40,000 increased by further $5000 for arrogant and incompetent “apology”). North Queensland Newspaper Co Ltd v Kendell (unreported, Qld Court of Appeal, 12 May 1994). David Syme & Co Ltd v Maher [1977] VR 516.

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Again, since the basis for the award of such aggravated damages is the increase in injury to the plaintiff’s feelings, such damages are not available to a plaintiff which is a corporation that is able to sue. 681 Falsity of the matter complained of is a matter which goes to aggravated damages, rather than ordinary compensatory damages. 682 Furthermore, falsity is relevant only so far as it affects the imputations upon which the plaintiff relies: the falsity of any other part of the report is irrelevant to the issue of aggravated damages. 683 Under the uniform defamation legislation the maximum for damages for non-economic loss of $250,000 or such amount as has been adjusted may be exceeded if, and only if, the court is satisfied that the circumstances of the publication are such as to warrant an award of aggravated damages. 684

Exemplary or punitive damages [3.1350] The uniform defamation legislation now provides that exemplary or punitive damages, which are normally designed to punish the defendant and to deter him or her from repeating the conduct or profiting from the wrong, cannot be awarded by the judge in a defamation action. 685

Mitigation [3.1360] The uniform defamation legislation provides a non-exhaustive list of matters that may be admitted in evidence on behalf of the defendant in order to mitigate the damages to be awarded, namely that: • the defendant has made an apology to the plaintiff about the publication of the defamatory matter; • the defendant has published a correction of the defamatory matter; • the plaintiff has already recovered damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; • the plaintiff has brought proceedings for damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or • the plaintiff has received or agreed to receive compensation for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter. 686 681 682 683 684

Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510. Aldridge v John Fairfax & Sons Ltd [1984] 2 NSWLR 544 at 549; Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 77; Packer v Australian Broadcasting Corporation (1993) 116 FLR 306 at 312. Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 77. DA: s 35(2); ACT: s 139F(2); NT: s 32(2); SA: s 33(2).

685

DA: s 37; ACT: s 139H; NT: s 34; SA: s 35.

686

DA: s 38; ACT: s 139I; NT: s 35; SA: s 36.

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The apology or correction must seek to undo the harm caused by the publication and not merely say that the publication was wrong. 687 Neither must it consist merely of a retraction some time after, with less prominence than the original publication. 688 The uniform defamation legislation provision expressly states that other matters may be pleaded in mitigation. Thus, for example, while evidence that the plaintiff was of particularly good character may serve to increase the damages awarded, the defendant may seek to mitigate the damages by leading evidence that before the publication was made the plaintiff did not enjoy a high reputation. A defendant is also entitled to rely in mitigation on any other evidence properly before the court, including evidence which has been primarily directed to, for example, fair comment or justification, 689 including evidence relevant to the truth of contextual imputations. 690 In effect, the defendant will be alleging that any reputation injured was of small value in the first place. 691 However, mere evidence of rumours of bad character will not suffice. 692 However, when evidence of character is given, it must be directed to that sector of the plaintiff’s character which is relevant. 693 Thus, if the defamatory matter imputes theft, the relevant sector is the plaintiff’s character for honesty and not, for example, his or her character as a motorist or their sexual morality. 694 Similarly, where the relevant sector was the plaintiff’s reputation as a husband who was loving, responsible and considerate towards his wife, evidence of the plaintiff committing social security fraud was properly discounted from those matters which when found to be true mitigated the damages to be awarded. 695 A consequence of the uniform defamation legislation adopting the common law meaning of justification, that is truth alone, is that now in all jurisdictions (including those that previously required truth and public benefit/interest) a defendant cannot allege truth in mitigation of damages. This is because, if proved, truth would be a complete defence. However, evidence lead in partial justification, where a defence of justification has failed in that the defendant has only been able to prove the truth of some but not all of the imputations in the published matter, may nevertheless be relied upon in mitigation of damages. 696 687 688 689 690

Fairbairn v John Fairfax & Sons Ltd (1977) 21 ACTR 1. Lawrie v NT News Services Pty Ltd (1985) 82 FLR 70. Pamplin v Express Newspapers Ltd (No 2) [1988] 1 WLR 116 at 120. Holt v TCN Channel Nine Pty Ltd [2014] NSWCA 90.

691 692

Scott v Samson (1882) 8 QBD 491. Scott v Samson (1882) 8 QBD 491; Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691 (unsuccessful attempt to rely on a large bundle of 60 newspaper articles to establish a prior tarnished reputation). Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 430 at [16]-[23]; Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [162]. Plato Films Ltd v Speidel [1961] AC 1090 at 1141; Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 801, 805-806. Holt v TCN Channel Nine Pty Ltd [2014] NSWCA 90 at [31], [77]. In that case it was held that the mitigory effect of the findings of fact of the plaintiff’s “disgraceful” conduct towards his wife almost wholly negated the impact of the untrue imputations upon which the plaintiff relied and therefore justified the comparatively small damages awarded. Besser v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174 at [47], [59], [86].

693 694 695

696

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Nevertheless, a defendant who does not plead what would be a defence should not be permitted to elicit the same facts to reduce damages. 697

Injunction [3.1370] In some rare cases, a forewarned plaintiff may be able to prevent an upcoming publication by means of an interlocutory injunction. The effect of such an injunction is to preserve the status quo until the final determination of the parties’ rights at the trial. Normally in order to obtain an interlocutory injunction a plaintiff is required to show only that there is a serious question to be tried between the parties and that the balance of convenience lies in favour of the plaintiff: that is, that the injury which the plaintiff is likely to suffer if an injunction were refused outweighs the injury which the defendant is likely to suffer if the injunction were granted. 698 However, courts approach the power to grant interlocutory injunctions in the case of defamation actions with great caution, and will do so only in very rare cases. 699 The reason for this caution is that in the case of defamation such an injunction represents a fetter on freedom of speech, particularly when an action for damages may later be brought in any event. It is one thing to impose civil or criminal consequences for an abuse of free speech, but quite another for a court to interfere with the right of free speech by prior restraint. 700 In other words, it is usually better that some plaintiffs should suffer some untrue damage to reputation for which damages will be paid than for members of the community in general, including the news media, to suffer restraint of free speech, upon which our society places very great importance. 701 In the case of an interlocutory injunction sought to restrain defamation, in addition to showing that there is a serious question to be tried, and that damages will not be an adequate remedy for the likely injury to be suffered so that the balance of convenience favours the granting of an injunction, further factors must be taken into account. The major factors to consider are: • the general public interest in free speech. • the fact that in the defamation context, the outcome of the trial is especially likely to turn upon issues that are unresolved. Thus, for example, until a defence of justification is resolved it will not be known whether the publication has invaded a legal right of the plaintiff. • that a defence of justification is typically an issue for jury decision. 697

Rigby v Associated Newspapers Ltd [1969] 1 NSWR 729 at 738; Age Co Ltd v Elliott (2006) 14 VR 375 at [21]-[22].

698

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [19] (per Gleeson CJ and Crennan J), [65] (per Gummow and Hayne JJ); Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618. Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; Bonnard v Perryman [1891] 2 Ch 269 at 284-285; Stocker v McElhinney (No 2) (1961) 79 WN (NSW) 541 at 544; Church of Scientology of California Inc v Reader’s Digest Services Pty Ltd [1980] 1 NSWLR 344 at 349; Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 172. Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [31]-[32] (per Gleeson CJ and Crennan J). See also Hatfield v TCN Channel Nine Pty Ltd [2010] NSWCA 69. National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd [1989] VR 747 at 764.

699

700 701

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• that the defamed person’s character may be found to be such that, even were the publication defamatory, only nominal damages would be awarded. For instance, to say of a convicted murderer that he or she was responsible for another murder, even if found to be defamatory, is unlikely to result in a substantial award of damages. 702 It has been said 703 that an injunction ought not to be granted unless: (1)

a subsequent finding by a jury that the matter complained of was not defamatory of him or her would be set aside as unreasonable;

(2)

there is no real ground for supposing that the defendant may succeed upon any defence of justification, 704 privilege, or comment/opinion; and,

(3)

the plaintiff is likely to recover more than merely nominal damages. 705

However, a series of cases advocated that a “flexible” approach be taken, balancing the elements so that the weight of one or more may compensate for the lesser weight of another. 706 Such an approach has now been criticised in the High Court, partly because it may lead too readily to an assumption that all that is involved is the exercise of an unbounded discretion, which thereafter is insusceptible of appellate interference. 707 Although there are instances where an interlocutory injunction has been granted, 708 the public interest in free speech is an important overriding consideration which makes it difficult to obtain an interlocutory injunction. 709 For example, as a majority of the High Court recognised

702 703

704

705

706

707 708

709

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [16]-[17]; Bonnard v Perryman [1891] 2 Ch 269 at 283-285. Stocker v McElhinney (No 2) (1961) 79 WN (NSW) 541 at 544; Bonnard v Perryman [1891] 2 Ch 269 at 284-285; Lennox v Krantz (1978) 19 SASR 273 at 276; Church of Scientology of California Inc v Reader’s Digest Services Pty Ltd [1980] 1 NSWLR 344 at 349; Shiel v Transmedia Productions Pty Ltd [1987] 1 Qd R 199 at 201, 203-206. See, for example, Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153; National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd [1989] VR 747; Hatfield v TCN Channel Nine Pty Ltd [2010] NSWCA 69. See, for example, Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [33], [89] (if the injunction were not granted, the general character of the plaintiff, who was a convicted murderer serving a life sentence who had confessed to another murder, may have assumed such importance at trial that the imputations that he was suspected of the murder of the Beaumont children and that he was a multiple murderer might attract an award of only nominal damages). Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153; National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd [1989] VR 747; Jakudo Pty Ltd v South Australian Telecasters Ltd (1997) 69 SASR 440. Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [83] (per Gummow and Hayne JJ). See, for example, Hemmes v Seven Network Ltd [2000] NSWSC 246 (report alleging plaintiff wrongly failed to acknowledge paternity of two children – application granted due to absence of any matter of public interest) and Australian Broadcasting Corporation v Hanson (unreported, Qld Court of Appeal, 28 September 1998) (song satirising politicians’ policies and opinions – application granted for “cheap denigration”). See, for example, Meriton Apartments Pty Ltd v SBS Corp [2002] NSWSC 915 (report alleging that plaintiff responsible for dangerous condition of building – injunction refused due to arguable defences and overriding principle of freedom of public discussion of matters of public interest).

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in ABC v O’Neill 710 while sometimes “trial by media” may be rightly condemned, that cannot be allowed to obscure the reality that investigation and exposure of wrongdoing is not the exclusive province of police and the criminal justice system. Sometimes criminal charges are laid following media exposure of alleged misconduct. Indeed sometimes allegations of misconduct are made against the police and public officials. In addition, the balance may be strongly against granting an interlocutory injunction where there has already been widespread access to the publication, such as where a book has already been made available electronically and hard copies have already been distributed to bookshops, so that the topic has already been extensively published. 711 In some jurisdictions the changes made in the uniform defamation legislation will mean that it will be harder to obtain an interlocutory injunction to restrain defamatory matter being published than was previously the case. Previously, in Queensland, Tasmania, the Australian Capital Territory and New South Wales, the justification defence required truth and public benefit or interest. At an interlocutory stage a plaintiff could argue that the proposed publication, even if shown to be true, concerned private affairs and therefore was not for the public benefit or in the public interest. 712 Now that all jurisdictions have adopted the common law meaning of justification, this argument is no longer available and if there are any prospects of the defamatory allegations being proved an application for an interlocutory injunction should be dismissed. A further practical limitation of these principles has been demonstrated by an attempt to restrain publication of defamatory material on the internet. 713 The application was refused on the ground that it would effectively restrain publication to any place in the world on the basis of New South Wales law when it could not be assumed that the law of defamation in other countries was co-extensive with the law in New South Wales. 714 Nor was it practicable, due to the nature of the internet, to restrict the operation of the injunction to only New South Wales. These special principles applicable in the case of an interlocutory injunction restraining defamation cannot be avoided by the simple expedient of pleading the plaintiff’s claim in some cause of action other than defamation, such as injurious falsehood or Australian Consumer Law (ACL), s 18. 715 The special principles will not apply, however, where the cause of action 710

711 712

713 714

715

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [26] per Gleeson CJ and Crennan J (Gummow and Hayne JJ agreeing at [87], [89] (report alleging convicted murderer had committed another murder). See, for example, Moran v Schwartz Publishing Pty Ltd [2014] WASC 334 at [85]-[86]. See, for example, Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 (no prospect of justifying allegations of sexual activities of former Australian cricket captain because publication was not in the public interest in the sense of promoting the public good). Macquarie Bank Ltd v Berg [1999] NSWSC 526. Macquarie Bank Ltd v Berg [1999] NSWSC 526 at [14]: “It may very well be that, according to the law of the Bahamas, Tazhakistan, or Mongolia, the defendant has an unfettered right to publish the material” (per Simpson J). Church of Scientology of California Inc v Reader’s Digest Services Pty Ltd [1980] 1 NSWLR 344 at 350-351; Gulf Oil (Great Britain) Ltd v Page [1987] 1 Ch 327 at 333-334.

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other than defamation does not involve any concept of free speech, such as a conspiracy between the author and the publisher of a newspaper article that has the sole or dominant purpose of injuring the plaintiff. 716

Costs in proceedings [3.1380] The objective of encouraging early settlement is now supported in the uniform defamation legislation, which provides for costs to be awarded taking into account matters including the conduct of the parties (such as a misuse of a superior financial position to prolong proceedings) and any other matters considered relevant. 717 One such matter might be (as under the previous New South Wales provision on which the uniform provision is based) the fact that costs may exceed the damages awarded. Further, unless the interests of justice require otherwise, where proceedings are successful the plaintiff must be awarded costs on an indemnity basis if the court believes the defendant unreasonably failed to make a settlement offer or failed to accept a settlement offer by the plaintiff, whereas if the proceedings are unsuccessful, the defendant must be awarded costs on an indemnity basis where the plaintiff unreasonably failed to accept a settlement offer by the defendant. “Settlement offer” includes a reasonable offer to make amends, where they are made before or after the proceedings are commenced.

Mediation or other alternative dispute resolution [3.1390] The offer of amends processes discussed above involve settlement of disputes by the parties without recourse to court. An additional alternative to court action would be for the parties to submit the dispute to resolution by mediation. Mediation is a consensual dispute resolution process where a neutral third party assists the parties to negotiate a mutually acceptable resolution of matters in dispute. 718 The advantages of mediation include the speed, lower costs, flexibility, informality, confidentiality and the consensual and creative nature of settlements. 719 However, while mediation or other dispute resolution techniques might offer a speedier and cheaper means of resolution, they are not a panacea for all cases of defamation. There may be practical problems involved in persuading some parties to submit to this method of resolving their dispute, including antagonism between the parties which may lead one or other to only be satisfied with a court verdict, and there may also be difficult questions of law which, while not precluding mediation, may create difficulties in the process. 720 Also, in some cases it may be doubted by the plaintiff that it is a means of obtaining effective vindication, particularly where any agreed settlement is kept private and does not involve public restoration of the plaintiff’s reputation. Nevertheless, in its report on 716

Gulf Oil (Great Britain) Ltd v Page [1987] 1 Ch 327; National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd [1989] VR 747.

717 718

DA: s 40; ACT: s 139K; NT: s 37; SA: s 38. See, for example, New South Wales Law Reform Commission, Training and Accreditation of Mediators, Report 67 (1991), at [2.5].

719 720

New South Wales Law Reform Commission, Defamation, Report 75, (1995), at [14.4]. New South Wales Law Reform Commission, Defamation, Report 75, (1995), at [14.6].

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defamation, the New South Wales Law Reform Commission strongly supported the use of mediation in the resolution of defamation disputes. 721

Other causes of action [3.1400] There are two other causes of action which may be invoked in appropriate circumstances to protect a person’s reputation: the prohibition of misleading or deceptive conduct under the Australian Consumer Law, s 18 and the tort of injurious falsehood.

Misleading or deceptive conduct Cause of action [3.1410] In some circumstances, a publication may not only injure the reputation of a person, it may also constitute conduct that is misleading or deceptive or likely to mislead or deceive in trade or commerce. 722 In the case of a media defendant, any publications will constitute conduct in its trade or commerce. Prima facie, therefore, in the case of a publication that misleads or deceives, or is likely to mislead or deceive an aggrieved person could bring an action under the Australian Consumer Law, s 18 723 in order to obtain a remedy of damages or injunction. 724 Bringing an action for misleading or deceptive conduct presents the aggrieved party with great advantage over an action for defamation, not least of which because the misleading or deceptive conduct legislation does not reproduce the defences to defamation which seek to strike a balance between injury to reputation and freedom of speech. 725 This section may have increased significance as a means of vindicating reputation

721 722

723

724

725

New South Wales Law Reform Commission, Defamation, Report 75, (1995), ch 14. In Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 55 ALR 25 at 29 it was noted that in some cases there is no definable boundary between conduct which is misleading or deceptive and material which is defamatory. The Australian Consumer Law (ACL) is both enacted as part of Commonwealth law as Sch 2 to the Competition and Consumer Act 2010 (Cth) and incorporated into the laws of the States and Territories: see Fair Trading Act 1992 (ACT), s 7; Fair Trading Act 1987 (NSW), s 28; Consumer Affairs and Fair Trading Act (NT), s 27; Fair Trading Act 1989 (Qld), s 16; Fair Trading Act 1987 (SA), s 14; Australian Consumer Law (Tasmania) Act 2010 (Tas), s 6; Fair Trading Act 1999 (Vic), s 9; Fair Trading Act 2010 (WA), s 19. At Commonwealth level the Australian Consumer Law applies to conduct by corporations or natural persons where there is other Commonwealth jurisdiction: see Competition and Consumer Act 2010 (Cth), s 6. All other cases of conduct by natural persons are governed by State or Territory law. In TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd (2008) 71 NSWLR 323 at [77] the New South Wales Court of Appeal rejected a submission that the equivalent of s 18 should be read down so as not to apply to publications otherwise covered by defamation. In TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd (2008) 71 NSWLR 323 at [80]-[92] the New South Wales rejected a submission that s 18 should not apply where a reporter used misleading and deceptive conduct to gain entry to the plaintiff’s property in order to conduct an “ambush interview” confrontation on the grounds that the subsequent report was found to be true and in the public interest, even though there was a connection between the damages awarded for the misleading and deceptive conduct and the injury to the reputation of the plaintiff arising from the confrontation.

[3.1410] 143

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since s 9 of the uniform defamation legislation provides that, generally speaking, a corporation now does not have a cause of action for defamation, unless it is an “excluded corporation.” 726

Exemption A media safe harbour [3.1420] The absence of any defences to strike a balance with free speech means that the use of ACL s 18 against a media defendant could have serious implications for the free flow of information to the public. Accordingly, ACL s 19 provides a “safe harbour defence” for the media, which states that s 18 does not apply to a publication by an “information provider” if: • the information provider made the publication in the course of carrying on a business of providing information; or • if the information is the ABC, SBS or the holder of a licence under the Broadcasting Services Act 1992 (Cth) and the publication was by way of a radio or television broadcast. Section 38 of the ACL provides a similar exemption from the operation of the specific prohibitions against misleading or conduct, such as false or misleading representations about goods or services (ACL s 29). An “information provider” Is defined as a person who carries on a business of providing information. 727 It would therefore include, for example, newspapers, magazines, and television and radio broadcasters, 728 as well as the journalists supplying stories for publication by those media organisations. 729 It will also include a person who carries on the business of freelance journalism. 730 It would thus cover, for example, the transmission by a freelance journalist to a media outlet of an article for publication. 731 However, it is unlikely to cover, for example, an online blogger unless that person can be said to be conducting a business of providing information. The media safe harbour only provides an exemption from liability for misleading or deceptive conduct. It does not provide an exemption for a media organisation which is an accessory to such a contravention. Accordingly, if a news organisation aids, abets or induces somebody who is not covered by ACL, s 19 to make statements in trade or commerce which are misleading or deceptive and breach ACL, s 18, then the news organisation may be liable as being “involved in” that contravention within the meaning of s 2 of the ACL. 732 This exemption greatly restricts potential media liability for misleading or deceptive conduct in circumstances where there would otherwise be an action for defamation. However, the 726 727

DA: s 9; ACT: s 121; NT: s 8. See [3.520]. ACL, s 19(5).

728 729 730 731 732

See also ACL s 19(6). TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd (2008) 71 NSWLR 323 at [53]. Bond v Barry [2007] ATPR 42-187 at [35]; Carlovers Carwash Ltd v Sahathevan [2000] NSWSC 947 at [36]. Bond v Barry [2007] ATPR 42-187. Bond v Barry [2007] ATPR 42-187 at [32]; Advanced Hair Studio Pty Ltd v TVW Enterprises Ltd (1987) 18 FCR 1.

144 [3.1420]

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media safe harbour was never intended to extend to the provision of information where an information provider has what might be regarded as a commercial interest in the content of the information. 733 Accordingly, there are a number of exceptions to the exemption.

Exception: promos for forthcoming publications [3.1430] Section 19(2) of the ACL provides that the “safe harbour” exemption does not apply to the publication of an advertisement. This would include, for example, a promotional statement in a newspaper or a magazine, or on television or radio, regarding future issues of that newspaper or magazine or future programmes of that television or radio channel. 734 Thus if the “promo” contains misleading or deceptive statements that injure the reputation of a person, an action may be brought under ACL, s 18. This is so even though an action could not be brought under that section for the same statements when made in the actual programme, due to the s 19 exemption. Example

Sun Earth Homes Pty Ltd v Australian Broadcasting Corporation [3.1440] Sun Earth Homes Pty Ltd v Australian Broadcasting Corporation (1993) 45 FCR 265 The defendant broadcast a segment on its television programme The Investigators concerning the activities of the applicants, which the applicants claimed was inaccurate and unfair. There was an interview on ABC radio on the day of the broadcast which gave details of the upcoming programme. The applicants alleged that the ABC had contravened s 52 of the Trade Practices Act 1974 (Cth) and its State counterpart (the equivalents of the ACL, s 18). In the Federal Court of Australia, Wilcox J held that s 65A of the Trade Practices Act 1974 (and its State counterparts) (the equivalents of the ACL, s 19) operated to exclude statements made in the report from the operation of the prohibitions of misleading or deceptive conduct. However, the radio discussion constituted an advertisement for the television programme, which fell within the exceptions to s 65A (and the equivalent State provision). An action for breach of s 52 was therefore available as a basis for action in respect of the statements made in the radio promotion. In the circumstances, however, none of the applicants were actually named in the radio discussion and there

733 734

Second reading speech for the Statute Law (Miscellaneous Provisions) Bill (No 2) 1984 (Cth). Sun Earth Homes Pty Ltd v Australian Broadcasting Corporation (1993) 45 FCR 265 at 280; Horwitz Grahame Books Pty Ltd v Performance Publications Pty Ltd [1987] ATPR 48,271 at 48,275; Fastways Couriers (Aust) Pty Ltd v Australian Broadcasting Corporation (unreported, Federal Court, Gummow J, 27 March 1995); Young v Munro (unreported, NSW Supreme Court, Levine J, 12 May 1995) (short promo for forthcoming A Current Affair with voiceover “Just when you thought they were behind bars they’re at it again”).

[3.1440] 145

Australian Media Law Sun Earth Homes Pty Ltd v Australian Broadcasting Corporation cont. was no evidence of a cause or relationship between the radio broadcast and any loss or damage sustained by the applicants.

Exception: supply, or promotion of supply, of goods or services [3.1450] The “safe harbour” exemption also does not apply where there is a publication of matter in connection with the supply or possible supply of, or the promotion by any means of the supply or use of, goods or services if: • the publicised goods or services were goods or services of a kind supplied by the information provider or, if the information provider is a body corporate, by a body corporate that is related to the information provider; or • the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a person who supplies goods or services of the same kind as the publicised goods or services; or • the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a body corporate that is related to a body corporate that supplies goods or services of the same kind as the publicised goods or services. 735 The exception of publications “in connection with … the supply or possible supply of goods or services” refers to a publication the content of which has some relationship to the supply of the goods or services in question. Accordingly, the provision of a journalistic service, for example, by transmission of an article about alleged corporate misdeeds is not a publication “in connection with … the supply of journalistic services.” The exception therefore does not apply to the provision of information articles by a freelance journalist to a media organisation. 736 The second of these exceptions to the exemption will apply where, for example, a news or current affairs programmes features a third party’s goods or services pursuant to a contract or arrangement between the programme and the third party. 737 No payment needs to be made for the goods or services being so featured. 738 Thus where in the course of such a report a misleading or deceptive statement is made which injures the reputation of a person then the exemption will not apply and an action will be available under ACL s 18.

735 736

ACL, ss 19(4), 38(3) and 160(4). Bond v Barry [2007] ATPR 42-187 at [42]-[43].

737 738

ACCC v Channel Seven Brisbane Pty Ltd (2009) 239 CLR 305. See [13.410]. ACCC v Channel Seven Brisbane Pty Ltd (2009) 239 CLR 305. See [13.410].

146 [3.1450]

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Injurious falsehood [3.1460] Unlike defamation, which protects personal reputation, injurious falsehood protects interests in the dispose ability of a person’s property, products or business. 739 Nevertheless, with the enactment of s 9 of the uniform defamation legislation companies with more than 10 employees may seek to protect their reputations through an action for injurious falsehood. 740 Indeed it may be the only avenue to do so against a media defendant which is an “information provider” unless one of the exceptions to the exemption applies. 741 The tort of injurious falsehood has four elements: • a false statement concerning the plaintiff’s goods or business; • publication to at least one person other than the plaintiff; • the defendant was actuated by malice; and, • proof of actual loss suffered as a result of the statement. 742 There are therefore a number of important differences between injurious falsehood and defamation, apart from the respective objectives of the torts. Unlike in defamation, a plaintiff suing for injurious falsehood bears the onus of proving falsity. 743 Accordingly it is not enough to show for example, that there is no evidence to support or justify an imputation in a publication. While that may be sufficient for defamation, where it is for a defendant to justify an imputation, in injurious falsehood the plaintiff must actually prove that the imputation to be false. 744 However, the absence of evidence to justify a falsehood is not without significance since if there is nothing to justify an imputation, it may take very little to establish, on balance, that the imputation is false. 745 Also unlike defamation, malice is an essential element of the injurious falsehood cause of action, and must therefore be proved by the plaintiff. In the context of injurious falsehood the notion of “malice” denotes a question of motive, intention or state of mind, involving the use of an occasion for some indirect purpose or indirect motive such as to cause injury to another person. 746 It has been described as “an intent to injure another without just cause or excuse” or “some indirect, dishonest or improper motive”. 747 The statement must be made mala fide or 739 740 741 742 743 744 745 746

747

Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) Inc (2002) 120 FCR 191 at 223. See, for example, David Jones Ltd v The Australia Institute Ltd [2007] FCA 962; AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395. See [3.1430]-[3.1440]. Ratcliffe v Evans [1892] 2 QB 524 at 527-528. Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at 406. AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 at [30]. AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 at [30]. British Railway Traffic & Electric Co Ltd v CRC Co Ltd & London County Council [1922] 2 KB 260 at 269; Browne v Dunn (1893) 6 R 67 at 72; Shapiro v La Morta [1923] All ER Rep 378; Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275 at 291. Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at 423.

[3.1460] 147

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with a lack of good faith: a person who acts in good faith will not be liable. 748 Since motive often must be inferred from what the defendant did or said or knew, malice is commonly proved by inference. 749 Malice may be inferred from the “grossness and falsity of the assertions and the cavalier way in which they were expressed”. 750 As is the case with defamation, normally proof that the defendant knew that a statement was untrue will be conclusive evidence that its publication was actuated by an improper motive, although mere absence of honest belief in the truth of the statement will be insufficient. 751 Reckless indifference whether a statement is true or false may also be sufficient. 752 This is because in some cases a defendant’s recklessness may be so gross that it constitutes wilful blindness, which the law regards as equivalent to knowledge. 753 However, this does not mean that a journalist’s failure to approach the plaintiff for a comment prior to publication of a story will necessarily constitute recklessness as to the truth or falsity of statements made in the story. 754 Further, whereas defamation is actionable per se under the uniform defamation legislation, the tort of injurious falsehood requires proof of actual damage. The relevant damage must harm of a kind intended or a kind which is the natural probable consequence of the false statement, such as a loss of business. 755 Nevertheless, the requirement for actual damage does not preclude the grant of injunctive relief to restrain a threatened publication. In such circumstances it will be enough to establish a reasonable probability of such damage occurring, as opposed to the damage actually occurring. 756 It has been suggested that the restraint normally exercised in the grant of injunctive relief in defamation cases due to questions of free speech in discussion and liberty of the press do not apply in the case of injurious falsehood. 757

748 749

Joyce v Sengupta [1993] 1 All ER 897. Horrocks v Lowe [1974] 1 All ER 662 at 669.

750 751 752

Joyce v Sengupta [1993] 1 All ER 897 at 905-6. Roberts v Bass (2002) 212 CLR 1 at 31. Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275; Browne v Dunn (1893) 6 R 67; Greers Ltd v Pearman & Corder Ltd (1922) 39 RPC 406 at 417; Kaye v Robertson (1990) 19 IPR 147 at 152; Joyce v Sengupta [1993] 1 All ER 897 at 905.

753 754

Roberts v Bass (2002) 212 CLR 1 at [84]. See, for example, Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369 at [94] (a news broadcast about a warning from the Food and Drug Administration in the United States that linked sleep positioners with baby deaths and the fact that the same type of product was available in Australia was not such as to demand a comment from the manufacturer or distributor of such devices in Australia). Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at 396-397 and 411-412. See, for example, Australand Holdings Ltd v Transparency & Accountability Council Inc [2008] NSWSC 669. Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at 406 per Gummow J; Beechwood Homes (NSW) Pty Ltd v Camenzuli [2010] NSWSC 521 at [18].

755 756 757

148 [3.1460]

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Criminal defamation Common law offence [3.1470] The common law recognises four criminal libels: defamatory libel, obscene libel, blasphemous libel and seditious libel. The latter three offences are discussed elsewhere. 758 However, the first type defamatory libel is more widely known as “criminal libel” or “criminal defamation”. At common law, criminal libel involves the publication to another person in permanent form of defamatory matter concerning a living or deceased person. 759 The rationale for the offence is its supposed tendency to arouse angry passion, provoke revenge and accordingly endanger the public peace. 760 Nevertheless, the prosecution is no longer required to prove that the libel was likely to provoke a breach of the peace, 761 nor is it a defence to show that the publication had no tendency to provoke a breach of the peace. 762 It may be, however, that seriousness is now an additional element to be established. 763 The functions of defamation in criminal law differ greatly from those of defamation in civil law. A private prosecution for criminal defamation is justified only where the subject of the prosecution is such as to affect the community. It has nothing to do with vindicating or protecting the reputation of the person defamed. 764 A squabble between individuals is not the proper subject of a prosecution. 765 In the words of Lord Denning MR, such a civil defamation “does not come up to [the] degree of enormity” of criminal defamation. 766 758

See [9.340] (blasphemous libel), [9.500] (obscene libel), [10.40] (seditious libel).

759 760 761 762

Gleaves v Deakin [1980] AC 477. R v Holbrook (1878) 4 QBD 42 at 46. Williams v Spautz (1992) 174 CLR 509 at 530. R v Hardy [1951] VLR 454 at 455. This famous case arose from publication of the book Power Without Glory by Frank Hardy which depicted the life of the unsavoury John West, said to be based on John Wren who had become one of the wealthiest financiers in Australia. The report is of the summing up by the trial judge. Despite the judge ruling that the absence of a tendency to provoke a breach of peace could not be used as a defence, Hardy was acquitted by the jury after only a few minutes deliberation: see the interesting account of the trial in C Brennan, “Perfect case that had to fail” (1994) LIJ 344. Goldsmith v Sperrings Ltd [1977] 1 WLR 478 at 485 per Lord Denning MR; see also R v Wells Street Stipendiary Magistrate; Ex parte Deakin [1980] AC 477; Williams v Spautz (1992) 174 CLR 509 at 539 per Brennan J.

763

764 765

766

Spautz v Williams [1983] 2 NSWLR 506 at 539-540; Waterhouse v Gilmore (1988) 12 NSWLR 270 at 287-288. Gleaves v Deakin [1980] AC 477 at 491; Waterhouse v Gilmore (1988) 12 NSWLR 270 at 288. In Waterhouse, Hunt J (at 288) suggested that an example of an appropriate case for prosecution was where an anonymous document alleging that an anti-drugs campaigner had not been murdered by a drug cartel, as found by a Royal Commission, but by or on behalf of his wife, son or solicitor, and the accused asked a member of the Legislative Assembly in New South Wales to read the document in Parliament and to keep reading it despite any points of order that might be taken: see Grassby v The Queen (1989) 168 CLR 1 at 8; cf Duffy v Baehnk (unreported, SA Supreme Court, Cox J, 4 March 1993) (conviction for criminal defamation upheld where accused sent defamatory letter to employer of her ex-lover accusing him of having a heroin habit, being a liar and wishing to steal from the homes of aged residents on an estate he was employed to guard). Goldsmith v Sperrings Ltd [1977] 1 WLR 478 at 485.

[3.1470] 149

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Like civil defamation, a matter is defamatory if it is likely to cause ordinary, right thinking members of the community to think less of the person defamed or to expose him or her to hatred, ridicule or contempt. 767 Also like civil defamation, the prosecution is not required to prove an intention to defame, that the libel was false, or that the defendant knew that the libel was false. 768 However, in contrast to common law civil defamation, the offence is limited to publications in permanent form and does not extend to slander. 769 There is sufficient publication if there is communication only to the person defamed, there being no requirement that there be communication to at least one person other than the person defamed, 770 and there may be an offence where there is libel of a deceased person. 771 Originally, truth was not a defence to defamatory libel but this position was modified by a statute which introduced a defence where the publication was true and for the public benefit. 772 This statute also partially addressed the anomaly that a defendant could be found guilty of criminal libel for a publication in which he or she had taken no part and of which he or she had no knowledge by introducing a defence for the proprietors of newspapers where the matter complained of was published without the proprietor’s authority, consent or knowledge, and the publication did not arise from want of due care or caution on the proprietor’s part. 773 The common law offence of criminal libel subsists in Victoria, 774 where it is now complemented by a statutory offence. 775 The common law offence has been abolished and replaced by statutory offences elsewhere. 776

Statutory modifications and additions to the common law intent or knowledge [3.1480] The statutory offences in New South Wales, Queensland, South Australia, Tasmania, Western Australia and the Australian Capital Territory introduced a requirement of mens rea as an element of the offence. In other words, the prosecution must show both knowledge of falsity and an intention to cause serious harm or reckless indifference. 777 It is 767 768 769 770 771 772 773 774 775 776

777

R v Wicks [1936] 1 All ER 384. R v Wicks [1936] 1 All ER 384 at 386-387. R v Hepburn (1889) 15 VLR 84 at 85. R v Holbrook (1878) 4 QBD 42. R v Enson (1887) 3 TLR 366. Libel Act 1843 (Eng) (Lord Campbell’s Act), s 6. Libel Act 1843 (Eng), s 7. See, for example, King v R (1876) 2 VLR 17 at 20. Wrongs Act 1958 (Vic), s 10. Crimes Act 1900 (ACT), s 439; Crimes Act 1900 (NSW), s 529; Criminal Code (NT), s 204; Criminal Code 1899 (Qld), s 365; Criminal Law Consolidation Act 1935 (SA), s 257; Criminal Code 1924 (Tas), s 196; Criminal Code 1913 (WA), s 345. Crimes Act 1900 (ACT), s 439(1); Crimes Act 1900 (NSW), s 529(3); Criminal Code 1899 (Qld), s 365(1) (knowledge and either intention or “without having regard”); Criminal Law Consolidation Act 1935 (SA),

150 [3.1480]

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important to recognise the strong prospective nature of this offence. It cannot be established by proving from the vantage of hindsight that the publication did in fact cause serious harm. In the absence of admissions by the accused, each fact must be proved by inference. 778 In the Northern Territory the element of mens rea was introduced by setting out a requisite intention for which the defamatory matter was published, namely, to publish defamatory matter with an intent to cause a breach of the peace; cause loss; interfere with the free and informed exercise of a political right; deter a person from performing any duty imposed on him by law; deter any person from doing any act that he or she is lawfully entitled to do or to compel him or her to do any act that he is lawfully entitled to not do; prevent any lawful investigation or inquiry; or interfere with or to influence any juridical proceeding. 779 Moreover, intent need not be shown in the Northern Territory where a publication actually causes or is likely to cause a breach of the peace. In Victoria there are two offences following the enactment of an offence of publication of defamatory matter knowing it to be false, which stands alongside the continued operation of the common law criminal libel which does not require an intention to defame or knowledge of falsity. 780

Publication [3.1490] In New South Wales, Queensland, Tasmania, Western Australia, the ACT and the Northern Territory the common law rule that it is sufficient to publish to the person defamed has been replaced by the requirement that, like the tort of defamation, publication must be to at least one person other than the person defamed. 781

Slander [3.1500] Only Victoria has retained the limitation of the mode of publication of criminal libel to publications in permanent form. 782 The other jurisdictions contemplate the possibility of an offence for transient defamation. 783

778 779 780 781

782 783

s 257(1) (knowledge or reckless as to whether true or false, and intention to cause serious harm or recklessness); Criminal Code 1924 (Tas), s 196(1) (knowledge and either intention or “without having regard”); Criminal Code 1913 (WA), s 345(1) (knowledge or without having regard as to true or false, and intention to cause serious harm or “without having regard”). Waterhouse v Gilmore (1988) 12 NSWLR 270 at 290. Criminal Code (NT), s 204. Wrongs Act 1958 (Vic), s 10(1); see the analysis in King v R (1876) 2 VLR 17 at 20. Crimes Act 1900 (ACT), s 439(8); Crimes Act 1900 (NSW), s 529(11); Criminal Code (NT), s 203; Criminal Code 1899 (Qld), s 365(8); Criminal Code 1924 (Tas), s 196(7); Criminal Code 1913 (WA), s 345(7). The South Australian statute does not define “publish”. See Wrongs Act 1958 (Vic), s 10 which refers to “defamatory libel” in relation to the statutory offence. Crimes Act 1900 (ACT), s 439(8); Crimes Act 1900 (NSW), s 529(11); Criminal Code (NT), s 203; Criminal Code 1899 (Qld), s 365(8); Criminal Law Consolidation Act 1935 (SA), s 257(1); Criminal Code 1924 (Tas), s 196(1); Criminal Code 1913 (WA), s 345(1).

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Defamation of the dead [3.1510] All jurisdictions other than Victoria have removed the common law possibility of criminal defamation of the dead by requiring the defamatory matter to be related to a living person. 784 In these other jurisdictions the publication of material defamatory of a dead person is relevant only to the extent that it also is referable to a living person. 785 For example, it may be sufficient to say of a deceased person that he or she was committed to a psychiatric institution, with reference to a hereditary element or quality in the condition or an express or implied suggestion that his or her children would or might inherit the condition.

Defences [3.1520] Most jurisdictions provide that a person charged with criminal libel has a lawful excuse for the publication if he or she would have a defence to the tort of defamation. 786 In Queensland, however, the statutory defence of justification, which requires proof of truth alone, has been replaced by a “modified statutory defence of justification” which requires the publication to be both true and for the public benefit. 787 In Victoria the defences to criminal libel are supplemented by statutory defences with respect to, for example, publication of reports of court and parliamentary proceedings, and publication of parliamentary papers and abstracts. 788

Defences for publishers [3.1530] An issue of some importance to media proprietors and employers is the extent to which they may be implicated in any criminal libel committed by their employees. The defence at common law introduced by Lord Campbell’s Act of the principal escaping liability where the matter complained of was published without his or her authority, consent or knowledge, and the publication did not arise from want of due care or caution on his or her part has been adopted in Victoria. 789 In the other jurisdictions protection for media proprietors may provided by the need for the prosecution to prove intent or both knowledge and intent as an element of the offence. 790 784

785 786

787 788 789 790

Crimes Act 1900 (ACT), s 439(1); Crimes Act 1900 (NSW), s 529(3); Criminal Code (NT), s 203; Criminal Code 1899 (Qld), s 365(1); Criminal Law Consolidation Act 1935 (SA), s 257(1); Criminal Code 1924 (Tas), s 196(1); Criminal Code 1913 (WA), s 345(1). Livingstone-Thomas v Associated Newspapers Ltd (1969) 90 WN (NSW) 223. Crimes Act 1900 (ACT), s 439(2); Crimes Act 1900 (NSW), s 529(4); Criminal Code (NT), s 203; Criminal Code 1899 (Qld), s 365(3); Criminal Law Consolidation Act 1935 (SA), s 257(2); Criminal Code 1924 (Tas), s 196(3); Criminal Code 1913 (WA), s 345(3). Criminal Code 1899 (Qld), s 365(8). Wrongs Act 1958 (Vic), s 4. Wrongs Act 1958 (Vic), s 11(2). Crimes Act 1900 (ACT), s 439(1); Crimes Act 1900 (NSW), s 529(3); Criminal Code (NT), s 204; Criminal Code 1899 (Qld), s 365(1); Criminal Law Consolidation Act 1935 (SA), s 257(1); Criminal Code 1924 (Tas), s 196(1).

152 [3.1510]

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Penalties [3.1540] The penalty for criminal libel varies across the jurisdictions. In New South Wales, Queensland, South Australia, Western Australia and the Northern Territory, the penalty is three years imprisonment, 791 in the Australian Capital Territory three years imprisonment or a fine, 792 in Victoria either two years and a fine or one year with or without a fine depending upon whether the defendant knew that the publication was false 793 while in Tasmania the penalty is at the discretion of the court. 794

Private prosecutions [3.1550] In most jurisdictions a private prosecution cannot be commenced without first gaining the consent of either the Director of Public Prosecutions, 795 or a Crown Law officer. 796 Relevant questions when deciding whether consent should be granted might include whether there is a prima facie case that the defamatory statements were made and that lawful excuses may be negated, and that the intervention of criminal law is called for. The intervention of the criminal law will be called for where the defamation is so serious it requires both punishment of the offender and protection of the community, and is required in the public interest as distinct from the private interest. 797 The applicant’s inability to fund or manage civil litigation should not be a sufficient reason for prosecution. 798 The requirement that consent first be obtained is essential in view of the threat to free speech posed in some cases by the possibility of private prosecutions for criminal defamation. They help prevent such private prosecutions being used as a weapon in cases involving what may in essence only be a squabble between individuals. 799

791

Crimes Act 1900 (NSW), s 529(3); Criminal Code (NT), s 204; Criminal Code 1899 (Qld), s 365(1); Criminal Law Consolidation Act 1935 (SA), s 257(1); Criminal Code 1913 (WA), s 345(1) (summary conviction penalty of 1 year imprisonment and a fine).

792 793

Crimes Act 1900 (ACT), s 439(1). Wrongs Act 1958 (Vic), s 10.

794 795

Criminal Code 1924 (Tas), s 389. Crimes Act 1900 (ACT), s 439(4); Crimes Act 1900 (NSW), s 529(7); Criminal Code 1899 (Qld), s 365(7); Criminal Law Consolidation Act 1935 (SA), s 257(4); Criminal Code 1924 (Tas), s 196(6); Criminal Code 1913 (WA), s 345(6). Criminal Code (NT), s 208. Burton v Parker [1998] TASSC 104, drawing on cases including Gouldham v Sharrett [1966] WAR 129 (FC); Spautz v Williams [1983] 2 NSWLR 506 at 537, 540; Shapowloff v Fitzgerald [1966] 2 NSWR 244 at 249. See also Byrnes v Barry [2003] ACTSC 54. Walsh v Jewell [1998] WASC 304. Waterhouse v Gilmore (1988) 12 NSWLR 270 at 288; see also Spautz v Williams [1983] 2 NSWLR 506 sub nom Williams v Spautz (1992) 174 CLR 509 (private prosecutions for criminal defamation brought by former lecturer against members of Council and staff of University of Newcastle as part of campaign to be reinstated). Cf Duffy v Baehnk (unreported, SA Supreme Court, Cox J, 4 March 1993) which involved proceedings commenced prior to the amendment to Criminal Law Consolidation Act 1935 (SA), s 257 requiring the consent of the Director of Public Prosecutions.

796 797

798 799

[3.1550] 153

Reporting Parliament and Elections

4

[4.10] INTRODUCTION ...................................................................................... 156 [4.20] REPORTING PARLIAMENT ....................................................................... 156 [4.20] Parliamentary privileges .......................................................................... 156 [4.30] The immunity of proceedings in parliament from impeachment or question ............................................................... 157 [4.40] [4.70] [4.80] [4.90] [4.100] [4.110] [4.140] [4.150] [4.170] [4.180]

Ambit of the immunity: immunity from civil and criminal action in respect of what is said in parliament ...... Ambit of the immunity: parliamentary papers ................... Ambit of the immunity: use of parliamentary records and documents in court proceedings ................................ Legislative intervention in the Commonwealth and the Northern Territory ................................................ Ambit of the immunity: actual repetition of statements made in parliament ......................................... Ambit of the immunity: effective repetition of statements made in parliament ......................................... Ambit of the immunity: actions brought by members ....... Proceedings in parliament ................................................. Is s 16(3) a valid law? ........................................................ Freedom of speech and constitutional guarantees of access to courts .............................................................

158 162 164 167 169 171 175 178 182 184

[4.190] Contempt of parliament ....................................................................... 184 [4.200] [4.210] [4.220] [4.230] [4.320] [4.500]

What is contempt of parliament? ...................................... Courts and contempt of parliament .................................. Contempt powers of the House of Commons .................... Contempt powers of the Commonwealth, State and Territory parliaments .......................................... Actions that can constitute contempt of parliament .......... Contempt and the implied freedom of political communication ....................................................

185 188 190 192 201 216

[4.510] Broadcasting parliamentary proceedings on radio, television and the internet ............................................................... 217 [4.510] [4.570]

Federal parliament ............................................................ 217 State and Territory parliaments .......................................... 220

[4.580] REPORTING ELECTIONS ........................................................................ 220 [4.590] Election broadcasts: reasonable opportunities for political parties .... 221 [4.600] Election broadcasts: advertising ban ................................................... 223 [4.610] Identification requirements .................................................................. 224 [4.620] Misleading and deceptive material ...................................................... 227 [4.630] Defaming a candidate ........................................................................... 230 [4.640] IDENTIFICATION AND RECORDS OF POLITICAL MATTER ................. 230 155

Australian Media Law

Introduction [4.10] The public depends on the media as its primary means of obtaining information about parliament and the political process. As a general rule, the media are free to report parliamentary proceedings, elections and other political material. However, this freedom is qualified in certain respects. The constraints come from quite different sources. The reporting of parliament is largely controlled by the parliaments themselves through the exercise of their contempt powers, which exist to enable them to protect the integrity of their processes. The media are also subject to a number of statutory obligations and prohibitions when reporting elections. These requirements are designed to achieve a variety of objectives, such as ensuring that political parties enjoy reasonable access to the electronic media during the lead up to an election, that the electorate is informed of the identity of those who authorise the publication of electoral matter, and that election candidates are not defamed. The reporting of parliament and elections is the subject of this chapter.

Reporting parliament Parliamentary privileges [4.20] Houses of Parliament as collective entities and members of parliament individually, though not in a personal capacity, enjoy certain rights, powers and immunities from the ordinary law which are not possessed by other bodies or individuals. 1 These rights, powers and immunities are collectively known as parliamentary privilege. 2 Parliamentary privilege is regarded as essential to enable the Houses of Parliament and their committees and members to effectively perform their functions and duties, which are to inquire, debate, legislate and hold the government to account. A key component of parliamentary privilege is the right of parliaments to regulate their own internal affairs without incursion by the courts, thereby securing a separation of power between the legislature and the judiciary. 3 This principle is known as “exclusive cognisance”. Parliamentary privilege is part of the common law and is recognised and protected by the courts. 4 Indeed, courts have jurisdiction to declare what are the powers, privileges and immunities of parliament. This was confirmed in R v Richards; Ex parte Fitzpatrick & Browne, where the High Court stated that “it is for the courts to judge of the existence in either House 1

M Jack (ed), Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament (24th ed, 2011), p 203.

2

It should be noted, however, that the term “privilege” is sometimes used to refer to parliament’s immunities in contradistinction to its powers. United Kingdom, Parliamentary Privilege, Cmd 8318 (2012) at [17]. See Bradlaugh v Gosset (1884) 12 QBD 271; Pickin v British Railways Board [1974] AC 765; Office of Government Commerce v Information Commissioner [2010] QB 98 at [46]. Joint Committee on Parliamentary Privilege, United Kingdom Parliament, First Report HC 214 1998/9, Ch 1 [5]; Legislative Council, Parliament of Western Australia, Select Committee of Privilege on a Matter Arising in the Standing Committee on Estimates and Financial Operations (2007), [1.8]. As discussed in [4.30], the right of free speech is also enshrined in legislation.

3

4

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of Parliament of a privilege”. 5 Although the existence and extent of a power or privilege is justiciable in the courts, “given an undoubted privilege, it is for the House to judge of the occasion and of the manner of its exercise”. 6 However, the demarcation between the existence and exercise of a power or a privilege is not entirely clear. Accordingly, there is scope for disagreement between courts and parliaments regarding the aspects of parliamentary privilege over which parliament enjoys exclusive jurisdiction. 7 Indeed, several recent developments indicate that the courts are incrementally contracting parliamentary privilege, particularly where it affects persons outside the house. 8 The privilege of most substance, and the only one of real relevance to the media, is the right of free speech in parliament. 9 The exact nature of the protection afforded by this privilege and its implications for the media is discussed at length in the following sections. Constitutional issues will also be briefly addressed.

The immunity of proceedings in parliament from impeachment or question [4.30] The right of free speech in parliament is enshrined in Art 9 of the Bill of Rights 1689 and forms part of the law of each Australian jurisdiction. 10 Article 9 states that “the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”. However, Art 9 did not create the right to freedom of speech; rather, it “encapsulated a pre-existing claim to exclusive cognisance over things said or done in parliament”. 11 It is a manifestation of the wider principle that the courts and parliament are both vigilant to recognise their respective constitutional roles and will not trespass into each other’s spheres. 12 5

6 7 8

9

10

11

R v Richards; Ex parte Fitzpatrick & Browne (1955) 92 CLR 157 at 162. That the courts are the final arbiters of the scope of parliamentary privilege was established in 1839 in Stockdale v Hansard (1839) 9 Ad & E 1; 112 ER 1112. See also: Egan v Willis & Cahill (1996) 40 NSWLR 650 at 653, 675, 683; Egan v Willis (1998) 195 CLR 424 at 446, 460, 509; R v Chaytor [2011] 1 AC 684 at 697-698. Somewhat ironically, where a parliament considers that a court’s decision has unduly reduced the extent of its exclusive cognisance, it can enact legislation to reverse the court’s decision: United Kingdom Parliament, Joint Committee on Parliamentary Privilege, HL Paper 30, HC 100 (2013) at [32]-[40]. R v Richards; Ex parte Fitzpatrick & Browne (1955) 92 CLR 157 at 162. See also New Brunswick Broadcasting v Nova Scotia (1993) 1 SCR 319 at 350. G Griffith, Parliamentary Privilege: First Principles and Recent Applications, (Briefing Paper No 1/09, NSW Parliamentary Library Research Service 2009), pp 11-13. For examples of these developments see: P Joseph, “Parliament’s Attenuated Privilege of Freedom of Speech” (2010) 126 Law Quarterly Review 568; G Griffith, Parliamentary Privilege: The Continuing Debate (Background Paper No 2/2014, New South Wales Parliamentary Research Service) at [2.1]-[2.4]. Other privileges include the qualified immunity of members of parliament from arrest in civil cases and the exemption of members of parliament from jury service and from attendance as witnesses in a court or tribunal while parliament is sitting. See BC Wright (ed), House of Representatives Practice (6th ed, 2012), pp 747-749; H Evans and R Laing (eds), Odgers’ Australian Senate Practice (13th ed, 2012), pp 72-73. Article 9 is incorporated into the law of the Australian jurisdictions in a variety of different ways, whether as received law, incorporation by legislation which adopts the privileges of the House of Commons as at a certain date or by re-enactment as local legislation: see [3.730]. United Kingdom Parliament, Joint Committee on Parliamentary Privilege, HL 30, HC 100 (2013) at [16]. In similar vein, G Griffith observed that “the privileges encapsulated in Article 9 pre-date its statutory expression

[4.30] 157

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Read literally, the reference to “any … place out of Parliament” would preclude all citizens, including the media, from criticising or questioning statements made by members of parliament in debates in parliament, 13 which would have “absurd consequences”. 14 In reality, the phrase is construed as referring primarily to courts and similar forums, such as royal commissions and tribunals. 15 The right of free speech in parliament is considered necessary to enable houses to carry out their functions without fear that their proceedings will be restricted or regulated by actions in the courts. 16 Article 9 cannot be waived by a member or a house (even by resolution); it can be waived, altered or added to only by legislation. 17 There are two broad issues regarding the scope of Art 9: what does it mean to “impeach or question” freedom of speech and debates or proceedings in parliament, and what are “proceedings in parliament”?

Ambit of the immunity: immunity from civil and criminal action in respect of what is said in parliament [4.40] The most certain and significant application of the immunity pertains to freedom of speech in debates in the house. Members of parliament cannot be sued for defamation or other civil cause of action, or be prosecuted for a criminal offence, such as contempt of court, 18 obscenity or hate speech, in relation to anything said in parliamentary debates. 19 This and can therefore be traced to an alternative source, namely, the inherent rights of Parliament associated with the ‘exclusive cognisance’ doctrine”: G Griffith, Parliamentary Privilege: The Continuing Debate (Background paper No 2/2014, New South Wales Parliamentary Research Service) at [4.2]. See also: United Kingdom, Parliamentary Privilege, Cmd 8318 (2012) at [40], where the right of free speech is described as an aspect of exclusive cognisance since its effect is to exclude any role for the courts in questioning proceedings in parliament. 12

13 14 15

16 17

18

Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 332. For a brief history of Art 9 see: C Harders, “Parliamentary Privilege – Parliament Versus the Courts: Cross-examination of Committee Witnesses” (1993) 67 Australian Law Journal 109 at 112-116. For a discussion of the relationship between Art 9 and the doctrine of exclusive cognisance see: R v Chaytor [2011] 1 AC 684. Pepper v Hart [1993] AC 593 at 638; Mees v Roads Corporation (2003) 128 FCR 418 at [77]; Buchanan v Jennings [2005] 1 AC 115 at 123; Szuty v Smyth [2004] ACTSC 77 at [145]. Toussaint v Attorney-General of St Vincent and the Grenadines [2007] 1 WLR 2825 at 2831. See also: United Kingdom, Parliamentary Privilege, Cmd 8318 (2012) at [80]. E Campbell, Parliamentary Privilege (2003), pp 19-21. See also Parliamentary Privileges Act 1987 (Cth), s 16 (references to “any court or tribunal”) and s 3 (definition of “tribunal”); Evans and Laing (eds), (13th ed, 2012), pp 64-65. The precise ambit of the phrase remains unclear. Would it include police questioning a member of parliament or investigations conducted by a corruption commission? See G Griffith, Parliamentary Privilege: First Principles and Recent Applications, (Briefing Paper No 1/09, NSW Parliamentary Library Research Service, 2009), p 4. Evans and Laing (eds), (13th ed, 2012), p 44. Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 335; R v Theophanous [2003] VSCA 78 at [63]. See also E Campbell (2003), Ch 8. The wider principle of exclusive cognisance can be waived or relinquished by parliament: R v Chaytor [2011] 1 AC 684 at 712; United Kingdom, Parliamentary Privilege, Cmd 8318 (2012) at [27]. Although a member cannot be prosecuted for a statement that constitutes a sub judice contempt of court, in deference to the separate and independent role of the courts and in the interests of securing fair trials, most parliaments adhere to a convention that members will refrain from making statements about matters that are before the courts, although there are circumstances in which the convention will not be observed. See, for

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protection is absolute, meaning that members are immune from legal actions irrespective of their intentions and motives in making the utterances and even if what they say is known to be untrue. The same immunity from suit applies to other participants in proceedings in parliament, such as witnesses who give evidence before parliamentary committees. 20 Immunity from civil and criminal action is regarded as essential if the Houses are to be able “to debate and to inquire utterly fearlessly for the public good”. 21 Since statements made by members under the protection of the immunity are capable of damaging the reputation and welfare of others, members are expected to use their freedom of speech judiciously. 22 Any abuse of the freedom can be dealt with by the House, 23 and is certainly likely to arouse the ire of the media. 24 Most Australian legislatures have made provision for citizens who are subjected to criticism and attack by members under the cover of parliamentary privilege to apply to the

example, Australian Capital Territory, Legislative Assembly, Continuing Resolution 10, Sub Judice; New South Wales, Legislative Assembly, Fact Sheet 22, Sub Judice Convention; Queensland Parliament, Members’ Ethics and Parliamentary Privileges Committee, Issues Paper No 2, 1997, The Sub Judice Convention; Queensland Legislative Assembly Standing Order 233 Sub Judice Rule; Western Australia, Legislative Assembly Standing Order 91. See also: V Mullen, “The Parliamentary Sub Judice Convention and the Media” (1996) 19 University of New South Wales Law Journal 303; McCully v Whangamata Marina Society Inc [2007] 1 NZLR 185 at [9]-[10]. Some of the difficulties experienced by a parliament in complying with the sub judice convention are described in United Kingdom, Report of the Committee on Super-injunctions, Superinjunctions, Anonymised Injunctions and Open Justice (2011), Ch 5. 19

20

21

22 23

24

Ex parte Wason (1869) LR 4 QB 573; Dillon v Balfour (1887) 20 Ir LR 600. A defence of absolute privilege under the uniform defamation legislation is separately accorded: Civil Law (Wrongs) Act 2002 (ACT), s 137; Defamation Act 2005 (NSW), s 27; Defamation Act (NT), s 24; Defamation Act 2005 (Qld), s 27; Defamation Act 2005 (SA), s 25; Defamation Act 2005 (Tas), s 27; Defamation Act 2005 (Vic), s 27; Defamation Act 2005 (WA), s 27. However, the absolute privilege afforded under defamation law should not be conflated with Art 9. The scope of absolute privilege is “strictly defined by reference to the setting in which the words complained of were uttered: Parliament; the Queen’s courts. Once publication in the prescribed setting is established, the privilege attaches”: Makudi v Baron Triesman Of Tottenham [2014] EWCA (Civ) 179 at [19]. By contrast, the reach of Art 9 is “not as clear cut”, since it is not as dependent on the setting in which a statement is made. See [4.100]. Goffin v Donnelly (1881) 6 QBD 307. In some jurisdictions, witnesses before a parliamentary committee enjoy a statutory immunity from defamation suits, for example: Parliamentary Evidence Act 1901 (NSW), s 12 (this provision applies in addition to any defence available under the Defamation Act 2005 (NSW)); Constitution Act 1975 (Vic), s 19A(7). It is open to parliament to legislate to provide exceptions to this immunity from suit. For example, in some jurisdictions witnesses before parliamentary committees can be prosecuted for giving false evidence. See, eg, Criminal Code (WA), s 57. Evans and Laing (eds), (13th ed, 2012), p 44. See Sankey v Whitlam (1978) 142 CLR 1 at 35; Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 334. See also I Macphail, “Is Parliamentary Privilege Incompatible With a Modern View of the Public Interest?” (2010) 25(2) Australasian Parliamentary Review 162. Some parliaments have made express resolutions to this effect. See, eg, Australian Capital Territory, Legislative Assembly, Continuing Resolution 7 Freedom of Speech. The conduct of members in parliament is regulated by the internal rules of debate that apply to that particular House – see Wright (ed), (6th ed, 2012), pp 735-736, 776-777 – and by parliament’s disciplinary powers. For example, if a member makes a deliberately untrue statement, this can be dealt with as a contempt of parliament. For a discussion of what can and should be done by a House where a member has misused or abused his or her freedom of speech see: E Campbell and M Groves, “Attacks on Judges Under Parliamentary Privilege: A Sorry Australian Episode” [2002] Public Law 626; Campbell (2003), Ch 5. C Forell, “Abuse of Privilege: A Perspective from the Press Gallery” (2002) 17(2) Australasian Parliamentary Review 247.

[4.40] 159

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House to have a response recorded in the parliamentary record. 25 Moreover, a citizen who is attacked in parliament can claim qualified privilege if he or she defames the member in reply, as can a media organisation that publishes the reply. 26 Although parliaments and their members enjoy complete immunity from suit in respect of statements made in the course of parliamentary proceedings, absolute privilege is generally not conferred on media organisations which republish those statements. However, the media possess a qualified immunity from defamation actions in respect of the publication of fair and accurate reports of what is said in parliament and in parliamentary committees. The fact that the immunity is qualified, not absolute, means that it is conditional and will be lost if the report is not fair and accurate or is published with malice or bad faith, or for an improper purpose. 27 The existence and ambit of qualified privilege is not a “diluted extension of the absolute parliamentary immunity”. 28 Qualified privilege is the creature of the law of defamation and its only connection with parliamentary privilege is that it applies to reports of parliamentary proceedings. 29 It is accorded both at common law, 30 and under the uniform defamation legislation. 31 Qualified privilege rests on the principle that the public interest in receiving reports of parliamentary proceedings outweighs any injury to reputation that results from the publication. 32 It seems that the media are protected by qualified privilege even if the parliamentary proceeding which formed the subject of the media report was not conducted in accordance with the rules of the House. 33 The media may also be able to claim the extended qualified privilege that is accorded to political and governmental communication. 34 In some cases, the qualified immunity from defamation actions enjoyed by the media has been elevated by legislation to an absolute immunity. For example, in the Commonwealth and 25

This right of reply procedure is described in: Wright (ed), (6th ed, 2012), pp 774-776; Evans and Laing (eds), (13th ed, 2012), pp 95-96; Campbell (2003), Ch 5; Senate Committee of Privileges, Parliament of Australia, Parliamentary Privilege: Precedents, Procedures and Practice in the Australian Senate 1966-2005, 125th report (2005), Ch 3. See also: A Jones, “Should Australian Parliaments Retain the Citizens’ Right of Reply Procedure? Is the Most Prevalent Model the Best One?’” http://www.anzacatt.org.au/parliament/general/ Anzacatt/Anzacatt.nsf/All/CC8B1D426A74BF71CA257B020077E4F1/$file/Alice%20Jones%20Citizens’%20 Right%20of%20Reply.pdf.

26

Adam v Ward [1917] AC 309; Loveday v Sun Newspapers Ltd (1938) 59 CLR 503; Penton v Calwell (1945) 70 CLR 219. See [3.880]. The more difficult question is whether the citizen can rely on what was said in parliament to help establish his or her defence. This is discussed below.

27

For a discussion of what is fair and accurate see [3.830].

28 29

Evans and Laing (eds), (13th ed, 2012), p 72. Evans and Laing (eds), (13th ed, 2012), p 72.

30 31

Wason v Walter (1868) LR 4 QB 73. See [3.810] Civil Law (Wrongs) Act 2002 (ACT), s 139; Defamation Act 2005 (NSW), s 29; Defamation Act (NT) s 26; Defamation Act 2005 (Qld), s 29; Defamation Act 2005 (SA) s 27; Defamation Act 2005 (Tas), s 29; Defamation Act 2005 (Vic), s 29; Defamation Act 2005 (WA), s 29. See [3.820]-[3.850].

32 33

Wason v Walter (1868) LR 4 QB 73 at 88. Thus journalists who reported in fair and accurate terms comments made by Senator Heffernan about Justice Kirby in 2002 were protected by qualified privilege even though the Senator’s comments were contrary to a Senate standing order which expressly forbade personal attacks on judges: see discussion in Australian Press Council, Annual Report 26, 30 June 2002, pp 29-30. See [3.970]-[3.1010].

34

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Northern Territory, legislation confers an absolute privilege against defamation actions on the publication of a fair and accurate report of proceedings at a meeting of a House or committee. 35 Absolute immunity is frequently conferred on authorised broadcasts and re-broadcasts of proceedings of parliaments. 36 It is more difficult to determine the limits of the media’s protection where a court has issued a suppression order and the veil of secrecy surrounding the order is broken by a member of parliament under the cover of privilege. Can the media lawfully report the member’s comments or would this amount to a breach of the order and therefore a contempt of court? This question arose in the United Kingdom in the Trafigura case but was not resolved. Example

The Trafigura case [4.50] The Trafigura case Trafigura, an oil-trading company, obtained an injunction against the Guardian newspaper which prevented the newspaper from publishing information derived from a legally privileged and confidential draft report (“the Minton report”) regarding the dumping of toxic waste by Trafigura in the Ivory Coast. The injunction was a super injunction, meaning that the Guardian was unable to report that it had been granted and by whom it was obtained. 37 Subsequently, a British MP tabled a question in the House of Commons concerning the impact of the injunction on press freedom, thereby breaking the veil of secrecy regarding the injunction, the Minton report and Trafigura’s alleged dumping of toxic waste. 38 The Guardian wished to report the member’s question and the subsequent parliamentary debate that would ensue when it was answered in the House. Initially, Trafigura’s lawyers objected, maintaining that this would amount to a breach of the injunction and a contempt of court. 39 The Guardian thereupon published a statement that it was unable to report a parliamentary question. However, both parties ultimately agreed to the variation of the injunction to allow the parliamentary question to be reported. 40 Thus the question of whether an order restraining the reporting of parliamentary proceedings could ever be lawful (and thus whether the Guardian had freedom to publish) was never considered by a court. This is

35 36 37

38

39 40

Parliamentary Privileges Act 1987 (Cth), s 10; Legislative Assembly (Powers and Privileges) Act (NT), s 13. To attract the immunity the publisher must not have adopted the substance of the defamatory material. For example: Parliamentary Proceedings Broadcasting Act 1946 (Cth), s 15; Legislative Assembly (Powers and Privileges) Act (NT), s 23(2); Constitution Act 1975 (Vic), s 74AA. The initial injunction is referred to in the Report of the Committee on Super-Injunctions as having been reported as RJW & SJW v The Guardian Newspaper & Person or Persons Unknown (Claim No HQ09): Super-Injunctions, Anonymised Injunctions and Open Justice (i). There is no doubt that, as a result of Art 9, the member could not be prosecuted for breaching the injunction even though his revelations violated the sub judice convention that is observed in the House of Commons, as a court has no power to prohibit or control what can be debated in parliament. It was never clear whether the terms of the court order extended this far. RJW and SJW v Guardian News and Media Ltd Claim No HQ09X04132, at http://www.judiciary.gov.uk/ Resources/JCO/Documents/Judgments/rjw-guardian-order-13102009.pdf

[4.50] 161

Australian Media Law The Trafigura case cont. not the only occasion on which information subject to anonymised injunctions has been revealed in the UK parliament. 41

[4.60] A subsequent report of the United Kingdom Committee on Super-injunctions regarded it as an open question: whether, and to what extent, the common law protects media reporting of Parliamentary proceedings where such reporting appears to breach the terms of a court order and is not covered by the protection provided by the 1840 Act. 42 What is clear is that unfettered reporting of Parliamentary proceedings (in apparent breach of court orders) has not been established as a clear right. 43

A report by a Joint Committee on Privacy and Injunctions stated that while there is common law protection for the media in defamation proceedings, “there is no authority as to whether there is common law protection against proceedings for contempt of court in respect of a fair and accurate report of parliamentary proceedings”. 44 It has been suggested that even where the terms of a court order are wide enough to have the effect of preventing media reporting of proceedings in parliament, courts should not interpret the order as extending that far. 45 In any event, in Australia, the implied freedom of political communication might prevent the court order from operating in this manner. 46

Ambit of the immunity: parliamentary papers [4.70] Entities that print and publish parliamentary papers by, or under the authority of, a house of parliament cannot claim the protection of Art 9 in respect of papers that are made available to the public. 47 However, immunity from civil and criminal actions is extended by legislation in the United Kingdom and in most Australian jurisdictions to entities that publish documents by order of, or under the authority of, a house, 48 the reason being that 41

See: United Kingdom Parliament, Joint Committee on Privacy and Injunctions, First Report HL Paper 273/HC 1443 (March 2012) at [211].

42

This is a reference to the Parliamentary Papers Act 1840 (UK) which is described in [4.70]. Section 3 provides that any “extracts or abstracts” of official reports of Parliament and “authenticated copies” thereof will be protected from legal liability but only if the extract or abstract was published “bona fide and without malice”. United Kingdom, Report of the Committee on Super-injunctions, Super-injunctions, Anonymised Injunctions and Open Justice (2011), at [6.33]. United Kingdom Parliament, Joint Committee on Privacy and Injunctions, First Report HL Paper 273/HC 1443 (March 2012) at [239].

43 44 45 46 47

48

G Carney, “Another Judicial Skirmish with Parliamentary Privilege: Trafigura’s Super Injunction Against the Guardian Newspaper” (2010) 21 Public Law Review 5 at 8-9. Carney (2010) 21 Public Law Review 5 at 8. Stockdale v Hansard (1839) 9 Ad & E 1; 112 ER 1112 (parliamentary privilege held to only protect papers printed by order of a House for the use of its own members). This case is discussed in E Campbell and M Groves, “Parliamentary Papers and Their Protection” (2004) 9 Media and Arts Law Review 113 at 115. Parliamentary Papers Act 1840 (UK) (enacted in response to the decision in Stockdale v Hansard); Parliamentary Papers Act 1908 (Cth), s 4; Parliamentary Privileges Act 1987 (Cth), s 16 (for a discussion of the relationship between these two Acts and of the Commonwealth Parliament’s power to enact such

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parliamentary freedom of speech “would be of little value if what is said in parliament … could not be freely communicated outside parliament”. 49 In addition, the uniform defamation legislation extends absolute privilege to matter published in the course of the proceedings of a parliament, house or committee. 50 The protection includes (but is not limited to) the publication of a document by order or authority of the parliamentary body and the publication of the debates and proceedings of the body by order or authority of the body or any law. The range of parliamentary papers that are capable of attracting the protection of these provisions has greatly increased, leading some to suggest that the absolute protection granted by legislation should be conferred more sparingly. 51 In many jurisdictions, persons who publish copies, abstracts and extracts of parliamentary papers are protected from liability by legislation, although the nature and extent of that protection varies and may be qualified. 52 Moreover, the uniform defamation legislation confers a defence on persons, including the media, who publish defamatory matter that is contained in a public document, a fair copy of a public document, or a fair summary or extract from a public document. 53 A “public document” includes any report or paper published by a parliamentary body, or a record of votes, debates or other proceedings relating to a parliamentary body published by or under the authority of the body or any law. However, the defence is defeated where the plaintiff can prove that the defamatory matter was not published honestly for the information of the public or for the advancement of education. Although media organisations

49 50

51

52

53

legislation see: Campbell and Groves (2004) 9 Media and Arts Law Review 113 at 115-117); Parliamentary Papers (Supplementary Provisions) Act 1975 (NSW), ss 6, 7; Legislative Assembly (Powers and Privileges) Act (NT), ss 6(2), 11; Parliament of Queensland Act 2001 (Qld), s 56; Constitution Act 1975 (Vic), s 73; Parliamentary Papers Act 1891 (WA), s 1 (civil proceedings only). The ambit of these provisions varies greatly and it is necessary to examine each one to ascertain the types of parliamentary papers covered by the immunity, the entities upon whom protection is conferred and the precise scope of the immunity from legal liability. Most of the aforementioned Acts contain provisions which empower parliament to order the publication of papers, and may deem certain types of documents to have been published by, or under the authority of, a House. In many jurisdictions, provision is made for legal proceedings that are commenced in relation to such publications to be immediately and permanently stayed upon presentation of a certificate by the presiding officer of a House to the effect that the document was published by order or under the authority of the House. United Kingdom Parliament, Joint Committee on Parliamentary Privilege First Report HL Paper 43/HC 214 1998/9, at [341]. Civil Law (Wrongs) Act 2002 (ACT), s 137(2)(a); Defamation Act 2005 (NSW), s 27(2)(a); Defamation Act (NT), s 24(2)(a); Defamation Act 2005 (Qld), s 27(2)(a); Defamation Act 2005 (SA), s 25(2)(a); Defamation Act 2005 (Tas), s 27(2)(a); Defamation Act 2005 (Vic), s 27(2)(a); Defamation Act 2005 (WA), s 27(2)(a). Campbell and Groves (2004) 9 Media and Arts Law Review 113 at 117, 122-123; United Kingdom Parliament, Joint Committee on Parliamentary Privilege First Report HL Paper 43/HC 214 1998/9, at [348]-[354]; N Lake, “Parliamentary Papers and Parliamentary Privilege: A Case for Continued Vigilance” (2007) 22(2) Australasian Parliamentary Review 107. See, for example, Constitution Act 1975 (Vic), ss 74(1) (absolute protection from civil and criminal liability for publication of complete copies of parliamentary papers), 74(3) (abstracts of parliamentary papers protected from civil and criminal liability if published bona fide and without malice); Parliament of Queensland Act 2001 (Qld), s 54 (no civil or criminal liability for publication of fair report of a tabled document); Parliamentary Papers Act 1891 (WA), ss 2 (absolute protection from civil liability for copies of parliamentary papers), 3 (extracts and abstracts of parliamentary papers protected from civil liability if published bona fide and without malice). Civil Law (Wrongs) Act 2002 (ACT), s 138; Defamation Act 2005 (NSW), s 28; Defamation Act (NT), s 25; Defamation Act 2005 (Qld), s 28; Defamation Act 2005 (SA), s 26; Defamation Act 2005 (Tas), s 28; Defamation Act 2005 (Vic), s 28; Defamation Act 2005 (WA), s 28. See [3.790]. Protection for fair reports also exists at common law (Wason v Walter (1868) LR 4 QB 73) and under the uniform defamation legislation.

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frequently garner information from parliamentary documents, they are unlikely to publish large, verbatim abstracts or extracts of them. Accordingly, the protection afforded by these statutes is unlikely to be of great practical assistance to the media. 54

Ambit of the immunity: use of parliamentary records and documents in court proceedings [4.80] The fact that Art 9 of the Bill of Rights 1689 prohibits debates and proceedings in parliament from being “impeached or questioned” in any court also means that there are restrictions on the evidentiary use that can be made of parliamentary records and documents 55 in judicial proceedings. 56 The nature and extent of the restrictions depends on the true ambit of the Article and the meaning attributed to the phrase “impeached or questioned”. The weight of authority favours the view that Art 9 does not prohibit parliamentary debates and documents from being used in judicial proceedings for certain limited purposes. 57 The first is to prove a non-contentious fact, such as that a member of parliament was present in the House on a particular day and voted, or that certain statements were made, certain subjects debated, certain decisions announced or certain documents tabled in a House, or that a statute has been passed. 58 Secondly, in light of the fact that courts are directed to take a purposive approach to the construction of legislation, courts are permitted to examine what was said in parliament to assist in the interpretation of statutes. 59 The most enlightening comments in this respect are likely to be those contained in the Minister’s Second Reading Speech. Thirdly, in proceedings 54

United Kingdom Parliament, Joint Committee on Parliamentary Privilege, HL paper 30/HC 100 (2013) at [191].

55

Documents that may be involved include the Votes and Proceedings, Hansard, documents tabled in the House, committee reports, transcripts of committee evidence and documents submitted to committees: Wright (ed), (6th ed, 2012), pp 739-740. This restriction on the use of parliamentary records was once complemented by a practice in some Houses of Parliament of requiring leave of the House to be granted before its records could be produced in court. However, most Houses have dispensed with this requirement in faith that the courts will ensure that any parliamentary records that are produced will not be used in a manner that violates Art 9. It should also be noted that it is not an infringement of parliamentary privilege for a court to receive particular material into evidence on a provisional basis in order to ascertain whether it falls within the scope of parliamentary privilege: Amann Aviation Pty Ltd v Commonwealth (1988) 19 FCR 223; Slipper v Magistrates Court of the ACT [2014] ACTSC 85. See Sankey v Whitlam (1978) 142 CLR 1 at 35-37; Uren v John Fairfax & Sons Ltd [1979] 2 NSWLR 287 at 289; Mundey v Askin [1982] 2 NSWLR 369 at 373; Henning v Australian Consolidated Press Ltd [1982] 2 NSWLR 374 at 375; Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 337; Rowan v Cornwall (No 5) (2002) 82 SASR 152 at 182; Mees v Roads Corporation (2003) 128 FCR 418 at 443; Erglis v Buckley [2004] 2 Qd R 599 at 612; Office of Government Commerce v Information Commissioner [2008] EWHC 737 (Admin) at [49]; AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd (2009) 74 NSWLR 612 at 615; Philip Morris Ltd and British American Tobacco Australia Ltd and Department of Health and Aging [2011] AATA 215 at [167]. It has been suggested that the distinction between mere proof and “impeaching or questioning” does not withstand scrutiny: P Joseph, “Parliament’s Attenuated Privilege of Freedom of Speech” (2010) 126 Law Quarterly Review 568. Pepper v Hart [1993] AC 593 (the House of Lords did, however, impose limits on the circumstances in which reference can be made to statements made in parliament during the passage of a bill). Wilson v First County Trust (No 2) (2004) 1 AC 816 at 839-844, 855-857, 864-867 considers the extent to which it is permissible for UK courts to refer to the parliamentary record in deciding whether legislation is compatible with the European

56

57

58

59

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for judicial review it seems that a plaintiff can rely on evidence of what was said by a Minister in Parliament to shed light on the motivation of the government’s action outside Parliament, provided the accuracy of the statements is not being challenged. 60 Fourthly, where it is a constitutional requirement that certain parliamentary procedures be followed in order for legislation to be valid, the immunity conferred by Art 9 does not prevent the courts from ascertaining whether those procedures were followed. 61 Fifthly, as explained in [4.20], courts can rule on whether conduct is capable in law of amounting to a breach of privilege, although parliament is the sole judge of whether a violation of a privilege has actually occurred. 62 Sixthly, courts can examine reports of parliamentary proceedings to establish whether a media report of the proceeding is fair and accurate for the purposes of attracting qualified privilege. 63 Finally, where certain activities in relation to parliamentary proceedings constitute criminal offences which may be prosecuted in the courts, proceedings in parliament can be examined in any judicial proceedings relating to those offences. 64 Indeed, the successful prosecution of such offences may require that this be so. 65 It has been noted that in creating such offences, parliaments have made inroads into their own immunity. 66 Although it is generally agreed that the substance of what is said or done in parliament can be used in judicial proceedings to prove non-contentious facts, there has been significant disagreement as to whether what is said or tabled in parliament can be the subject of any submission or inference. Until the controversial decision of Hunt J in R v Murphy, 67 it was generally accepted that it could not. 68 Accordingly, Art 9 could be invoked to prevent the

60

61

62 63 64 65 66 67 68

Convention on Human Rights. At Commonwealth level, s 16(5) of the Parliamentary Privileges Act 1987 (Cth) expressly preserves the right of courts to admit and examine official parliamentary debates for the purpose of interpreting an Act. In some jurisdictions general statutory provisions permit the use of such extrinsic material as an aid to interpretation eg: Acts Interpretation Act 1901 (Cth), s 15AB. Toussaint v Attorney-General of St Vincent and the Grenadines [2007] 1 WLR 2825. But see United Kingdom Parliament, Joint Committee on Parliamentary Privilege (2013) at [122]-[125] regarding cases that involve judicial review of executive action. See also: M Hutton, Parliamentary Privilege: Recent Developments from the House of Commons http://www.anzacatt.org.au/parliament/general/Anzacatt/Anzacatt.nsf/0/ 2EB263CCD9021F59CA25755A007383B0/$file/Mark%20Hutton%20UK.doc. Victoria v Commonwealth (1975) 134 CLR 81; Evans and Laing (eds), (13th ed, 2012), p 44. At Commonwealth level, s 16(5) of the Parliamentary Privileges Act 1987 (Cth) expressly preserves the right of courts to admit and examine official parliamentary debates in relation to a question arising under the deadlock provisions in s 57 of the Commonwealth Constitution. Constitutional requirements aside, it is not open to the courts to investigate whether a bill was validly enacted: Hoani Te Tukino v Aotea District Maori Land Board [1941] AC 308 at 322; British Railways Board v Pickin [1974] AC 765. The court can, of course, rule on the validity of an Act as it has emerged from the legislative process: Clayton v Heffron (1960) 105 CLR 214 at 234-235. Victoria Legislative Assembly Speaker v Glass (1871) LR 3, PC App 560; R v Richards; Ex parte Fitzpatrick & Browne (1955) 92 CLR 157; Halden v Marks (1996) 17 WAR 447. Laurance v Katter (1996) 141 ALR 447 at 480-481; Rowan v Cornwall (No 5) (2002) 82 SASR 152 at 183. This is expressly provided for in Parliamentary Privileges Act 1987 (Cth), s 16(6). Evans and Laing (eds), (13th ed, 2012), pp 53, 79. Evans and Laing (eds), (13th ed, 2012), p 53. R v Murphy (1986) 5 NSWLR 18. Note that Art 9 does not prevent a House from conducting its own inquiry to determine whether statements made by a member under the protection of parliamentary privilege are true. This task may also be committed to an independent executive body such as a commission of inquiry, provided that legislation has been enacted

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content of parliamentary debates and documents from being criticised or called into question, to prevent any inquiry into the motives and intentions of members of parliament in relation to anything said or done in parliament, and to prevent parliamentary proceedings from being used to support a cause of action arising from something that occurred outside those proceedings. 69 This orthodox view of Art 9 was rejected in R v Murphy. 70 That case concerned the use which could be made in criminal proceedings of evidence given before a Senate committee. The principal prosecution witnesses in the two trials concerning Justice Lionel Murphy had given evidence and tendered written statements before Senate Select Committees which had conducted inquiries to determine whether the judge should be removed from office by parliamentary address. In advance of the second trial, counsel instructed by the President of the Senate submitted that it is a breach of Art 9 for a person who has given evidence or made statements to a parliamentary committee to be cross-examined on that evidence in curial proceedings, irrespective of whether that person is a witness or a defendant in those proceedings. 71 Hunt J rejected counsel’s submission. He held that not only can evidence as to what a witness said before a parliamentary committee be admitted for the purpose of establishing a non-contentious material fact, such as that a person gave evidence before a committee at a particular time, 72 parliamentary records can be used to prove that certain statements were made by a witness before a committee, even where the purpose is to invite the court to disbelieve the witness’s evidence given in the court proceedings by reason of the inconsistency between the witness’s previous statement and his or her later evidence in court. 73 According to Hunt J, the protection conferred by Art 9 is confined to precluding parliamentary proceedings from being the foundation of an action. That is, it only prevents direct legal consequences from being visited upon members of parliament and committee witnesses etc for things said or done in proceedings in parliament. 74 Article 9 does not prevent what is said or done in proceedings in parliament from being used to support an action which arises out of something said or done outside parliament, either by providing

69

70 71

to remove the constraints imposed by Art 9: E Campbell, “Investigating the Truth of Statements Made in Parliament. The Australian Experience” [1998] Public Law 125; G Griffith, “The Powers and Privileges of the New South Wales Legislative Council: Arena v Nader” (1998) 9 Public Law Review 227. See, for example: Dingle v Associated Newspapers Ltd [1960] 2 QB 405 (validity of a report of a select committee of the House of Commons could not be impugned); Church of Scientology of California v Johnson-Smith [1972] 1 QB 522 (report of Hansard could not be used to support a cause of action against a member even though the cause of action arose out of something done by the member outside the house); R v Secretary of State for Trade; Ex parte Anderson Strathclyde plc [1983] 2 All ER 233 (report of Hansard could not be used against the Secretary of State to support a ground for relief in proceedings for judicial review of an administrative decision made outside of Parliament). See also: Comalco Ltd v Australian Broadcasting Corporation (1983) 50 ACTR 1; Australian Broadcasting Corporation v Chatterton (1986) 46 SASR 1 at 18 (per Zelling ACJ). R v Murphy (1986) 5 NSWLR 18. It was assumed that evidence given by a witness before a parliamentary committee should receive the same protection as statements made by members of parliament in debate, since the proceedings of a committee are “proceedings in parliament” for the purposes of Art 9: see [4.150].

72

R v Murphy (1986) 5 NSWLR 18 at 26.

73 74

R v Murphy (1986) 5 NSWLR 18 at 26-27. R v Murphy (1986) 5 NSWLR 18 at 30.

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primary evidence of an offence or a civil wrong, or by providing a basis for attacking the evidence of a witness or defendant in court proceedings, or by providing evidence of a state of mind on the part of a member or committee witness as at some other time or place. 75 Accordingly, it is legitimate for statements made in a House or before a committee to be the subject of comments, to be used to draw inferences or conclusions, to be made the basis of cross-examination or submission, and to be the subject of comparisons with statements made by the same person outside parliament. 76 The decision and reasoning of Hunt J has not been followed in subsequent cases and is regarded by courts as incorrect. 77 The weight of authority overwhelmingly favours the conventional interpretation of Art 9, namely, that it precludes a party to legal proceedings from calling into question words spoken or actions done in parliament – for example, by suggesting that they are untrue or misleading – and prohibits the cross-examination of witnesses in a court of law regarding what they said in evidence before a parliamentary committee. Although well entrenched, the distinction between using parliamentary records to prove non-contentious facts – a permissible usage – and using them to draw inferences and question motives – an impermissible usage – is not always self-evident. 78

Legislative intervention in the Commonwealth and the Northern Territory [4.90] The Commonwealth Parliament regarded the decision in R v Murphy as a serious threat to the freedom of speech of members of parliament and witnesses before parliamentary committees. In response to the decision it enacted the Parliamentary Privileges Act 1987. The right of free speech at Commonwealth level is now largely governed by that Act. Section 16 states that the Commonwealth Houses of Parliament possess the privilege of freedom of speech as enshrined in Art 9, and proceeds to declare what is the effect of Art 9 in its application to the Commonwealth Parliament. 79 Unlike Art 9, s 16(3) defines what is meant by “impeached or questioned”. It does not explicitly declare that members or witnesses may not be prosecuted or sued for their participation in parliamentary proceedings, as that proposition is regarded as beyond doubt and clearly encompassed by Art 9. 80 Rather, the provision attempts to delineate the wider operation of the Article and restores the orthodox interpretation

75

R v Murphy (1986) 5 NSWLR 18 at 34.

76 77

R v Murphy (1986) 5 NSWLR 18 at 27, 39. See, for example: R v Jackson (1987) 8 NSWLR 116 at 121; Pepper v Hart [1993] AC 593; Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 333; Rann v Olsen (2000) 76 SASR 450 at 491, 494-495; Szuty v Smyth [2004] ACTSC 77; Commonwealth v Vance (2006) 158 ACTR 47. The imprecision is evident in Erglis v Buckley [2003] QSC 440 (Philippides J); Erglis v Buckley [2004] 2 Qd R 599 (Court of Appeal).

78 79 80

The effect given to the Article by s 16 is expressed to be in addition to any other operation it may have: s 16(1). Evans and Laing (eds), (13th ed, 2012), p 50.

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of the immunity. It states that in proceedings in any court or tribunal, 81 it is not lawful for evidence to be tendered or received, or for questions to be asked, or statements, submissions or comments made, concerning proceedings in the Commonwealth Parliament for any of the following purposes: • questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in parliament; 82 • otherwise questioning or establishing the credibility, motive, intention or good faith of any person (this paragraph applies even where this does not directly call into question those proceedings of parliament); 83 or • drawing or inviting the drawing of inferences or conclusions from anything forming part of those proceedings in parliament. 84 An identical provision appears in Northern Territory legislation. 85 New Zealand has recently introduced an even more expansive provision. 86 By contrast, the United Kingdom government has decided that a case has not been made for a comprehensive codification of privilege in a Parliamentary Privilege Act. 87

81

A court means a federal court or a court of a State or Territory. “Tribunal” is defined in s 3. It has been suggested in O’Chee v Rowley (1997) 150 ALR 199 at 201 and in Rann v Olsen (2000) 76 SASR 450 at 492-493 that the phrase “court or tribunal” used in s 16 may be more restrictive than the phrase “in any court or place out of parliament” used in Art 9, but that s 16(1) would seem to preserve any wider meaning in the Article.

82

Section 16(3)(a). This prohibition is intended to prevent a statement made by a member or evidence given by a parliamentary witness from being directly attacked for the purpose of court proceedings, or the motives of the member or witness in speaking or giving evidence from being attacked: Explanatory Memorandum to the Parliamentary Privileges Bill 1987 (Cth), cl 16. Section 16(3)(b). This prohibition is intended to prevent a member’s speech or a witness’s evidence from being used to establish their motives or intention for the purpose of supporting an action against them or against another person. For example, a member’s statements outside parliament cannot be shown to be actuated by malice by reference to alleged malice in statements made in parliament: Explanatory Memorandum to the Parliamentary Privileges Bill 1987 (Cth), cl 16. See Hamsher v Swift (1992) 33 FCR 545 at 564. Section 16(3)(c). This prohibition aims to prevent a jury from being invited to infer matters from speeches of members or evidence of parliamentary witnesses in the course of a civil or criminal action against them or another person. For example, a member’s speech in parliament cannot be used to support an inference that the member’s conduct outside parliament was part of an illegal activity: Explanatory Memorandum to the Parliamentary Privileges Bill 1987 (Cth), cl 16. See Amann Aviation Pty Ltd v Commonwealth (1988) 19 FCR 223; Hamsher v Swift (1992) 33 FCR 545; Laurance v Katter (1996) 141 ALR 447 at 481, 483; Habib v Commonwealth [2008] FCA 1494. Legislative Assembly (Powers and Privileges) Act (NT), s 6. Section 16 also applies to the Australian Capital Territory by virtue of s 24 of the Australian Capital Territory (Self Government) Act 1988 (Cth). See also Parliamentary Privileges Bill 2010 (NSW), Exposure Draft, cl 7. The Parliamentary Privilege Act 2014 (NZ), s 11 provides that in proceedings in a court or tribunal, “evidence must not be offered or received, and questions must not be asked or statements, submissions, or comments made, concerning proceedings in Parliament” for the purpose of, inter alia, “proving or disproving … any fact necessary for, or incidental to, establishing any liability” or “resolving any matter, or supporting or resisting any judgment, order, remedy, or relief, arising or sought in the court or tribunal proceedings”. United Kingdom, Parliamentary Privilege, Cmd 8318 (2012) at [37].

83

84

85

86

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The introduction of evidence of statements made in parliament in breach of s 16(3) does not necessarily compromise the case. A trial will miscarry only if the introduction of such evidence constitutes a substantial miscarriage of justice. 88 It has been noted that s 16(3) subordinates the interests of the administration of justice in the courts to those of the parliamentary committee system by denying accused persons their normal right to cross-examine witnesses against them in court proceedings. 89 This may be a breach of Australia’s obligations under Art 14.3(e) of the International Covenant on Civil and Political Rights, which states that in the determination of a criminal charge, every person is entitled to the right to examine or have examined the opposing witnesses. In line with the orthodox interpretation of Art 9, the Explanatory Memorandum to the Parliamentary Privileges Bill 1987 (Cth) confirms that s 16(3)(c) is not intended to prevent material and non-contentious facts from being proved by reference to a record of proceedings in parliament, such as that a member was in parliament on a certain day. 90 Section 16(4) imposes an absolute prohibition on the production or admission into evidence in court proceedings of any evidence (oral or documentary) taken in camera, unless a House or committee has published or authorised the publication of that evidence. The precise relationship between s 16(3) and Art 9 is uncertain. Whilst some judges consider that s 16(3) is merely declaratory of Art 9, 91 other judges are inclined to the view that the section extends the operation of Art 9. 92 The relationship between the two provisions is important in determining whether judicial interpretations of Art 9 govern the interpretation of s 16, and in ascertaining whether s 16 infringes the implied freedom of political communication.

Ambit of the immunity: actual repetition of statements made in parliament [4.100] A member of parliament may make defamatory statements in parliament, then give a media interview or a press conference in which the member repeats those comments for his or her own purposes. In this case, the person in respect of whom the comments were made can sue the member in defamation provided the cause of action is founded on what was said in the interview and not on what was said in parliament. 93 The extra parliamentary comment 88 89 90 91 92

93

R v Theophanous [2003] VSCA 78 at [71]-[72]. Of course the parliament could treat the introduction of the evidence as a contempt. Harders (1993) 67 Australian Law Journal 109 at 112. This was confirmed in Amann Aviation Pty Ltd v Commonwealth (1988) 19 FCR 223 at 230. Amann Aviation Pty Ltd v Commonwealth (1988) 19 FCR 223 at 231; Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 333; Rann v Olsen (2000) 76 SASR 450 at 490-491 per Prior J. Rann v Olsen (2000) 76 SASR 450 at 461-462, 468-469, 476 (per Doyle CJ with whom Mullighan J agreed), 492 (per Perry J), 513 (per Lander J, who did not find it necessary to decide the question but conceded that there were cogent arguments that it did). See also the tentative view expressed in Mees v Roads Corporation (2003) 128 FCR 418 at 445. R v Lord Abingdon (1795) 1 Esp 226; 170 ER 337; R v Creevey (1813) 1 M&S 273; 105 ER 102; Dillon v Balfour (1887) 20 Ir LR 600; Stopforth v Goyer (1978) 87 DLR (3d) 373; Australian Broadcasting Corporation

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is not protected by Art 9 as the member “does not deserve it for himself, and the integrity of Parliament’s process does not require it”. 94 The basis for the member’s liability is that every republication of a libel is a new libel. Thus it is irrelevant that the original publication was protected by Art 9 or absolute privilege. To successfully resist the claim, the member would need to rely on some other defence, such as truth, honest opinion or qualified privilege. Reliance on other defences will inevitably involve the court in making findings about truth and motives. Any findings made in respect of the extra parliamentary statement will ordinarily apply with equal force to the parliamentary statement. However, such an inquiry is not precluded by Art 9 because the plaintiff’s claim is founded on what was said outside the House; 95 the fact that the findings impinge on the words spoken in the House is incidental. 96 The fact that a member is liable for actual repetitions has implications for the liability of media organisations that publish the member’s comments. The same position applies in respect of defamatory statements made prior to parliamentary debates which are then repeated in parliament, such as a press release which is later repeated in the House. 97 However, the position is otherwise where a member makes defamatory comments outside parliament without naming the person, then subsequently names the person in parliament. In this case, the member cannot be successfully sued because the person has to rely on the fact that he or she was named inside parliament in order to complete the cause of action. In Peters v Cushing this was held to be impermissible. 98 The member must be free to name the plaintiff in parliament if he or she judges it right to do so, without fear of adverse consequences. 99 Recently, in Makudi v Baron Triesman Of Tottenham, the England and Wales Court of Appeal suggested that there may be circumstances where Art 9 protection will extend to extra-Parliamentary speech. The Court opined that such cases will be infrequent and will generally possess two characteristics: there is a “public interest in repetition of the Parliamentary utterance which the speaker ought reasonably to serve” and there is so close a nexus between the occasions of the speaker’s speaking, in and then out of Parliament, that the prospect of his or her obligation to speak on the second occasion (or the expectation or promise that he or she would do so) is “reasonably foreseeable at the time of the first” and his or her purpose in speaking on both occasions is “the same or very closely related”. 100 This case is yet to be considered by an Australian court.

97 98

v Chatterton (1986) 46 SASR 1; Beitzel v Crabb [1992] 2 VR 121 at 127; Rann v Olsen (2000) 76 SASR 450 at 482. Whether a statement made in a media interview can ever be regarded as a “proceeding in parliament” which would attract absolute privilege is discussed in [4.150]. Makudi v Baron Triesman Of Tottenham [2014] EWCA (Civ) 179 at [21]. Buchanan v Jennings [2005] 2 All ER 273 at 282-283. Mees v Roads Corporation (2003) 128 FCR 418 at 445-446; Makudi v Baron Triesman Of Tottenham [2014] EWCA (Civ) 179 at [23]. A v United Kingdom (2002) 36 EHRR 917; [2002] ECHR 811 at [84]. Peters v Cushing [1999] NZAR 241.

99 100

Buchanan v Jennings [2005] 1 AC 115 at 133. Makudi v Baron Triesman Of Tottenham [2014] EWCA (Civ) 179 at [25].

94 95 96

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Ambit of the immunity: “effective” repetition of statements made in parliament [4.110] In the case of effective repetition, a member – usually in a media interview – does not repeat verbatim the defamatory statements he or she made in parliament, but states that he or she “adopts”, “adheres to”, “confirms” or “does not resile from” what he or she said in parliament. To affirm a statement made in parliament is different from merely agreeing that certain comments were made. A member cannot be sued for simply acknowledging that he or she made certain statements in parliament. 101 This is because, in order to succeed, the plaintiff would have to sue on the original statement, which cannot be done. To constitute an effective repetition, the member must actually “adopt” the statement or republish it by reference. 102 To be successful in a defamation action against a member who has effectively repeated defamatory comments outside parliament, the defamed person will need to rely on the statements made inside parliament in order to give meaning to the effective repetition. The question is whether this can be done.

The position under Article 9 [4.120] In Beitzel v Crabb, 103 a plaintiff sued a member who had made defamatory comments about the plaintiff in the House then, in a subsequent radio interview and press conference, said that he stood by what he had said. The member sought to have the action struck out on the basis that it was founded on words spoken in the House. However, the court took the view that the action was founded on what the member had said in the interview and press conference. Even though the words spoken in the House were not repeated, there was a sufficient temporal and substantive connection in the minds of the public between the words spoken in the House and the words spoken in the interview and press conference for there to have been a defamatory publication by adoption. 104 The same result was reached by the New Zealand Court of Appeal and confirmed by the Privy Council in Buchanan v Jennings. 105 The case concerned a member of parliament (Jennings) who reportedly told a journalist in an interview conducted after he had made defamatory comments about Buchanan in the New Zealand House of Representatives, that he “did not resile” from what he had said. A report of the interview was duly published. Jennings was sued by Buchanan in respect of what he had said to the journalist, on the basis that publication in the newspaper was a natural and foreseeable consequence of conducting the interview. 106 Jennings applied to have the case struck out on the ground that the statements 101 102 103 104 105 106

Thus a member, when questioned about comments made in the house, is entitled to say “yes, I did say that”: Griffiths v Lewis (1845) 14 LJQB 197. This would occur if the defendant said: “I stand by what I said in parliament” or “what I said yesterday in parliament was true”. Beitzel v Crabb [1992] 2 VR 121. The court did not decide whether Hansard could be tendered to prove what had been said in the house: Beitzel v Crabb [1992] 2 VR 121 at 128. The defamation action was ultimately settled. Buchanan v Jennings [2002] 3 NZLR 145 (New Zealand Court of Appeal); Buchanan v Jennings [2005] 1 AC 115 (Privy Council). See [3.450].

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made outside the House could not, in themselves, found an action in defamation because, standing alone, they were meaningless, while the statements made inside the House were privileged and could not be relied upon. The New Zealand Court of Appeal, by a majority of 4:1, 107 and subsequently the Privy Council, 108 found for Buchanan. It was held that if a plaintiff can show that there has been an effective repetition of a defamatory statement made in parliament, the member who made it can be held liable in defamation, just as he or she would be liable if the comments had been repeated verbatim. 109 Neither the New Zealand Court of Appeal nor the Privy Council regarded this conclusion as infringing the principles that underlie the absolute privilege accorded to parliamentary statements, as both courts took the view that Buchanan’s cause of action was based on the extra parliamentary statement, that is, on Jennings’ repetition, and did not call into question Jennings’ earlier statement in parliament or question the propriety of Jennings’ behaviour as a parliamentarian, or his state of mind, motives, intention etc. The fact that Buchanan needed to use the parliamentary record to prove what Jennings had effectively said outside the House did not infringe parliamentary privilege. The reference simply proved as a historical fact that certain words were uttered, a usage of Hansard which is permissible and non-contentious. 110 If the newspaper that published Jennings’ comments had been sued, it too would have been liable. 111 Moreover, a media organisation that directly endorsed a defamatory statement made by a member in parliament would presumably also attract liability. Both courts were at pains to point out that the right of members to speak their minds in parliament without the risk of incurring liability remained untouched and absolute. Liability will arise only when the member, having spoken his or her mind, chooses to actually or effectively repeat his or her statement outside the House. Thus the only perceived repercussion of the decision is that members will be forced to be more circumspect about their extra parliamentary comments. The decision in Buchanan v Jennings was not well received in New Zealand 112 and has been criticised in Australia. 113 The New Zealand Parliament Privileges Committee responded 107 108 109

Buchanan v Jennings [2002] 3 NZLR 145. The majority consisted of Richardson P, Gault, Keith and Blanchard JJ. Tipping J dissented. Buchanan v Jennings [2005] 1 AC 115. The same principles would presumably apply to defamatory statements made before a parliamentary committee then effectively repeated outside the committee.

110 111

Buchanan v Jennings [2005] 1 AC 115 at 132. While the media are protected by qualified privilege for fair and accurate reports of a parliamentary proceeding, a report of what is said in an interview is not a report of a parliamentary proceeding. Thus the media would have to rely on some other defence to escape liability.

112

J Allan, “Parliamentary Privilege: Will the Empire Strike Back?” (2002) 20 New Zealand Universities Law Review 205; D McGee, “The Scope of Parliamentary Privilege” [2004] New Zealand Law Journal 84; PA Joseph, “Parliamentary Privilege and Effective Repetition: Constitutional Review” [2003] New Zealand Law Review 428. Western Australian Legislative Assembly Procedure and Privileges Committee, Effective Repetition: Decision in Buchanan v Jennings Report No 3 (2006); Senate Privileges Committee, Parliament of Australia, Effective Repetition 134th Report (2008). The decision is declared to be incorrect in Odgers’ Australian Senate Practice: Evans and Laing (eds), (13th ed, 2012), p 57.

113

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by issuing a report in which it recommended that the New Zealand Parliament enact legislation to reverse the decision. 114 There are a number of objections to the decision, many of which find expression in the strong dissenting judgment of Tipping J in the Court of Appeal. First, it has been argued that the decision poses a threat to the long standing principle of mutual restraint between the courts and parliament, as it permits parliamentary statements to be put directly to the court as constituting the primary evidence of the defamation. 115 Thus the court is directly involved in judging the quality of parliamentary proceedings. Secondly, it has been asserted that the use of parliamentary debates in effective repetition contexts does infringe Art 9, because reference to what was said in parliament is essential in order to give meaning to the extra parliamentary adoption or affirmation. 116 In Buchanan v Jennings, reference to Jennings’ words in parliament was necessary in order to identify both the plaintiff and the defamatory meaning. In so far as the plaintiff in a defamation action is impliedly asserting the falsity of the defamatory comments, the truth of what was said in parliament is being “impeached” or “questioned”, the very action that Art 9 prohibits. 117 Thirdly, it has been argued that the Privy Council’s decision may have a detrimental impact on the free speech of members while they are in parliament, notwithstanding the Privy Council’s assertion that the decision will only make members more reticent about what they say outside of parliament. The New Zealand Privileges Committee explained that there is an expectation on the part of the media and the public that a member will respond publicly to comments made in the House, even if minimally. This expectation will have a restraining impact on what members say in parliament, particularly if they have given commitments to do subsequent interviews and anticipate that they might be questioned by a journalist and be found to have effectively repeated their comments. 118 Fourthly, it is anticipated that the decision will have a chilling effect on public debate and political free speech. For their part, members may be less inclined to give interviews in which they discuss or allude to what they have said in parliament, and media organisations may be less willing to seek interviews with members if it might expose them to liability for publishing a member’s effective repetition. The net result is that public debate on important public issues might be stymied. Fifthly, Tipping J expressed concern that the doctrine of effective repetition is too uncertain, and too difficult to distinguish from mere agreement that certain words were uttered, which is clearly not 114

115 116

117 118

New Zealand Privileges Committee, Question of Privilege Referred 21 July 1998 Concerning Buchanan v Jennings, (May 2005). The Western Australian Legislative Assembly Procedure and Privileges Committee also recommended that legislation be enacted to prevent parliamentary proceedings from being used to establish what is effectually, but not actually, said outside parliament, although in terms different to that recommended by the New Zealand Privileges Committee: Effective Repetition: Decision in Buchanan v Jennings Report No 3 (2006). New Zealand Privileges Committee, Question of Privilege Referred 21 July 1998 Concerning Buchanan v Jennings (May 2005), p 5. New Zealand Privileges Committee, Question of Privilege Referred 21 July 1998 Concerning Buchanan v Jennings (May 2005), Appendix C; A Geddis, “Defining the Ambit of the Free Speech Privilege in New Zealand’s Parliament” (2005) 16 Public Law Review 5 at 15. The same comment would apply had Jennings sought to raise a defence of truth, as this would also have required the court to examine what had been said in parliament. It would be possible for a seasoned journalist to manipulate a member to do just that.

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actionable. 119 Finally, the principle of effective repetition espoused in Buchanan v Jennings is not confined to the defamation context. The New Zealand Committee of Privileges expressed concern that the principle might be used to render members criminally liable (for example, for sedition, contempt of court, incitement to racial hatred) or liable for other civil wrongs (such as an action for breach of confidence). 120 Despite the earlier recommendations of its Privileges Committee, the New Zealand parliament did not act to reverse the decision in Buchanan v Jennings until 2014. One of the express purposes of the Parliamentary Privilege Act 2014 (NZ) is to “abolish and prohibit evidence being offered or received, questions being asked, or statements, submissions, or comments made, concerning proceedings in Parliament, to inform or support ‘effective repetition’ claims and liabilities in proceedings in a court or tribunal and exemplified by the decision in Buchanan v Jennings”. 121

The position under s 16(3) [4.130] The position in relation to effective repetition and s 16(3) was considered by the Queensland Court of Appeal in Laurance v Katter. 122 In this case, a member made certain remarks in parliament then effectively adopted them in a subsequent media interview. He was sued by the plaintiff. The Court of Appeal agreed that reference to the remarks that had been made in parliament in order to give meaning to the extra parliamentary statement was not permitted by a literal construction of s 16(3), and that the only way to avoid this result was to read down s 16(3) or hold it invalid. The majority were willing to do so. Davies JA held that s 16(3) should be read down so that it only prohibited the receipt in a court or tribunal of evidence which would impair or inhibit freedom of speech in parliament. On the facts, Davies JA found that the plaintiff was not alleging any impropriety against the member for what he had said in parliament; the plaintiff was seeking only to establish what was incorporated in statements made outside the house. Since the member remained free to say what he did in parliament, the reference to the words he had spoken in the house was not capable of impairing his freedom of speech. Pincus JA went further and invalidated s 16(3) in its application to defamation actions, with the result that the plaintiff was entitled to make out his case by relying on what was said by the member in parliament. Fitzgerald JA dissented. The interpretations of s 16(3) adopted by Davies JA and Pincus JA have not been followed, 123 and Odgers’ Australian Senate Practice emphatically states that the case is not 119

120 121 122 123

Buchanan v Jennings [2002] 3 NZLR 145 at [162]-[163]. The House of Commons and House of Lords Joint Committee on Parliamentary Privilege observed that the “imperceptible differences of emphasis” makes it very difficult to draw the line between the two: United Kingdom Parliament, Joint Committee on Parliamentary Privilege, Parliamentary Privilege, HL Paper 30/HC 100 (2013) at [206]. See also Makudi v Baron Triesman Of Tottenham [2014] EWCA (Civ) 179 at [18]. New Zealand Privileges Committee, Question of Privilege Referred 21 July 1998 Concerning Buchanan v Jennings (May 2005), p 6. Parliamentary Privilege Act 2014 (NZ), s 3(2)(d). Laurance v Katter (1996) 141 ALR 447. The matter came before the Court of Appeal on a demurrer to the defence. See Rann v Olsen (2000) 76 SASR 450 at 471; R v Theophanous [2003] VSCA 78 at [69].

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authoritative. 124 However, the decision has not been reconsidered in the light of Buchanan v Jennings. The Senate Privileges Committee has recommended that s 16(3) be amended to clarify that it does not permit an effective repetition to found a cause of action. 125

Ambit of the immunity: actions brought by members [4.140] Courts have had to consider the role of Art 9 where a defamation action is instituted by a member of parliament against a non-member who has criticised the member’s speeches or actions. This issue is of particular relevance to the media, since media organisations are frequently the defendants in such actions. A media organisation in this position may seek to raise a defence, for example, that the allegedly defamatory publication is a fair and accurate report of a debate or proceeding in parliament which attracts qualified privilege, or that the allegedly defamatory statements were true or constituted honest opinion. In order to establish these defences, the media organisation may wish to produce and examine statements made by the member in parliament. If Art 9 prohibits a court from examining such statements in order to resolve the member’s legal action, this has implications for what the media can publish without being exposed to liability in defamation. In Wright & Advertiser Newspapers Ltd v Lewis 126 the South Australian Supreme Court held that Art 9 does not prevent a defendant from challenging the truth or bona fides of statements made in parliament in circumstances where the maker of the statement has initiated the proceedings. According to King CJ, gross injustice would result if the position were otherwise. It would mean that a member of parliament could sue for defamation in respect of criticism of his or her statements or conduct in parliament, but the defendant would be precluded from alleging and proving that what was said about the member was true etc. According to King CJ: This would amount to a gross distortion of the law of defamation in its application to such a situation. Defamation in law is by definition an untrue imputation against the reputation of another. …. If the defendant were precluded from proving the truth of what is alleged, the Member of Parliament would be enabled to recover damages, if no other defence applied, for an imputation which is perfectly true. Moreover the defence of fair comment would often be unavailable … because it would not be permissible to prove the factual foundation for the expression of opinion. The defence of qualified privilege might be seriously inhibited because the defendant would be prevented from answering an allegation of express malice by proving facts as known to him. 127

The Court justified its decision to limit the privilege by explaining that it would not inhibit members from exercising their right to free speech, because members would be aware that their actions or motives could be examined in court only if they chose to institute proceedings which rendered such an examination necessary. 128 124 125 126

Evans and Laing (eds), (13th ed, 2012), p 56. Senate Privileges Committee, Parliament of Australia, Effective Repetition 134th Report (2008). Wright & Advertiser Newspapers Ltd v Lewis (1990) 53 SASR 416.

127 128

Wright & Advertiser Newspapers Ltd v Lewis (1990) 53 SASR 416 at 421-422. Wright & Advertiser Newspapers Ltd v Lewis (1990) 53 SASR 416 at 426.

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Wright & Advertiser Newspapers was not followed in Prebble v Television New Zealand Ltd. 129 In that case, the Privy Council, on appeal from the New Zealand Court of Appeal, held that it was an infringement of parliamentary privilege for any party to legal proceedings to bring into question words spoken or actions done in parliament by suggesting, whether by direct evidence, cross-examination, inference or submission, that they were untrue, misleading, or instigated for improper motives, even where such suggestions were advanced by way of defence to proceedings instituted by a member of parliament. 130 The Privy Council appealed to a long line of authority which supports a separate and wider principle of non-intervention of which Art 9 is but one manifestation, namely, that courts and parliaments have separate roles, and that both institutions are astute to recognise those roles and exercise mutual restraint in order to avoid conflict. 131 From the courts’ perspective, the principle obliges courts not to allow any challenge to be made to what is said or done within the walls of parliament in the performance of its legislative functions and in the protection of its established privileges. The Privy Council was also concerned that the position taken in Wright & Advertiser Newspapers effectively empowers an individual member to determine whether a privilege that belongs to parliament itself could apply. 132 In the view of the Privy Council, “the decision of an individual member cannot override that collective privilege of the house to be the sole judge of such matters”. 133 The Privy Council recognised the impact of their decision on defendants in defamation actions brought by members, and conceded that it may have a chilling effect on the freedom of the media to engage in robust criticism “of the actions of those elected to power in a democratic society”. 134 However, it held that the need for parliament to be able to exercise its powers freely on behalf of electors took precedence. 135 In Rann v Olsen, the Full Court of the Supreme Court of South Australia had to consider the impact of s 16(3) on a defamation action brought by a member. 136 Those judges who regarded s 16(3) as merely declaratory of Art 9 were constrained to construe its meaning by reference to Art 9 and the cases which had interpreted it, including Wright & Advertiser Newspapers. These judges held that Wright & Advertiser Newspapers was wrongly decided. By contrast, those judges who regarded s 16(3) as having extended the reach of Art 9 were not controlled by existing judicial interpretations of the article and were therefore not strictly required to determine whether Wright & Advertiser Newspapers was correct. Nevertheless, these judges agreed that the reasoning adopted in Wright could not be accommodated within s 16(3). Unlike Art 9, whose terms are brief and general, s 16(3) is detailed and specific, and it was simply not possible to read down the section to deny it any application where the 129 130 131

132

Prebble v Television New Zealand Ltd [1995] 1 AC 321. Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 337. Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 332. This meaning of this wider principle, which is often referred to as the “exclusive cognisance” or “exclusive jurisdiction” of parliament and the way in which it differs from Art 9 is explained at length in R v Chaytor [2011] 1 AC 684. See [4.20]. Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 335.

133 134

Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 335. Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 336. The same point is made in Campbell (2003), p 109.

135 136

Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 336. Rann v Olsen (2000) 76 SASR 450. The context was a case stated by the trial judge.

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plaintiff is a member of parliament. In so deciding, the majority held that s 16(3) had to be interpreted in light of the principle of “non-intervention” expounded in Prebble 137 which operates to foreclose judicial inquiry if the purpose of that inquiry is to question or rely on the truth of what is said in parliament. 138 Some members of the court rejected the view espoused by Davies J in Laurance v Katter that s 16(3) could be read down to apply only where the court concluded that its application in a particular case would impair freedom of speech in parliament. Doyle CJ held that parliament itself has made the judgment about when the section should apply, and that judgment has been made “by reference to the purpose of the line of inquiry, rather than by reference to a court’s conclusion as to the likely ultimate effect on freedom of speech in parliament”. 139 According to Doyle CJ, the approach taken by Davies JA is destructive of freedom of speech, because a member of parliament would never know at the time a statement is made, what view a court might take. 140 Further, it would make the courts the ultimate arbiters of the effect on freedom of speech. The effect of the decisions in Prebble and Rann v Olsen is that under both Art 9 and s 16(3), parliamentary materials cannot be used as a sword to maintain a cause of action brought against a member, or as a shield to defend a cause of action brought by a member. Notwithstanding its conclusion, the South Australian Supreme Court was troubled by the injustice that a refusal to read down the freedom can cause to a defendant in an action brought by a member. 141 The court contemplated that there might be circumstances in which it would exercise its power to stay the proceeding. The power to order a stay had been considered in Prebble v Television New Zealand Ltd. 142 Although not granted on the facts, the Privy Council postulated that the interests of justice might require proceedings to be stayed if the exclusion of parliamentary material rendered it impossible for the issues raised in the action to be fairly determined. 143 However, the court was adamant that a stay would be granted only in extreme cases, since the effect is to prevent the member who has been defamed by the media or a member of the public from vindicating his or her reputation in the courts. Extreme circumstances would exist where the whole subject matter of the alleged defamation relates to the member’s conduct in the house so that the effect of the privilege is to exclude virtually all the evidence necessary to justify the libel. According to the Privy Council: If such an action were to be allowed to proceed, not only would there be an injustice to the defendant but also there would be a real danger that the media would be forced to abstain from

137 138 139 140 141 142 143

Rann Perry Rann Rann

v Olsen (2000) 76 SASR 450 at 472-474 per Doyle CJ (with whom Mullighan J agreed), at 493 per J. v Olsen (2000) 76 SASR 450 at 474 per Doyle CJ. v Olsen (2000) 76 SASR 450 at 474.

Rann v Olsen (2000) 76 SASR 450 at 474. Rann v Olsen (2000) 76 SASR 450 at 491. Prebble v Television New Zealand Ltd [1995] 1 AC 321. Presumably this principle is not confined to defamation actions brought by members, but would apply whenever the application of the privilege would work a serious injustice.

[4.140] 177

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By contrast, where the exclusion of parliamentary material would only have a limited impact on the case, the case will proceed. 145 Following the decision in Prebble, s 13 was inserted into the Defamation Act 1996 (UK) permitting a member to waive the privilege in so far as it concerned that member, and thereby secure the continuance of an action. The provision was very controversial and has recently been repealed. 146 In Australia, the privilege conferred by Art 9 cannot be waived by an individual member or by a house acting alone. 147 Nor is there any provision for waiver of the privilege in s 16. 148 Since the privilege belongs to parliament itself, it can be waived only by valid legislation. Some commentators disagree with the broad interpretation given to Art 9 and with s 16(3), and regard the most desirable position as that taken in R v Murphy and in Wright & Advertiser Newspapers Ltd v Lewis. 149 They argue that parliamentary privilege has been inflated at the expense of the right of citizens and the media to criticise members of parliament.

Proceedings in parliament The position under Article 9 [4.150] The immunity afforded by Art 9 applies only to “proceedings in parliament”. The meaning of this phrase is critical, since it governs the ambit of the privilege. The meaning attributed to this phrase has a flow on effect for the media, since the media enjoy a qualified privilege in defamation for fair and accurate reports of “proceedings in parliament”. 150 While the central focus of the phrase is on what is said and done within the parliamentary chamber,

144 145

146 147 148 149

150

Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 338. A stay of proceedings was granted in Allason v Haines [1995] TLR 438. In Rann v Olsen the majority held that, on the facts, it was premature to determine whether the interests of justice demanded a stay and thus refused to answer the question at that stage of the proceedings. Perry and Prior JJ dissented on this issue, holding that the circumstances relevant to an exercise of the discretion were clearly established and would not be affected by the course of the trial. Deregulation Act 2015 (UK), Sch 23. See, for example, Australian Broadcasting Corporation v Chatterton (1986) 46 SASR 1 at 20; Rowan v Cornwall (No 5) (2002) 82 SASR 152 at 181-182. Hamsher v Swift (1992) 33 FCR 545 at 564. Harders (1993) 67 Australian Law Journal 109; G Marshall, “Impugning Parliamentary Impugnity” [1994] Public Law 509; D O’Brien, “Parliamentary Privilege and the Implied Freedom of Speech” (1995) 25 Queensland Law Society Journal 569; S Walker, “The Courts, Parliamentary Privilege and the Media” (1999) 1 UTS Law Review 82. For a contrary view see: Evans and Laing (eds), (13th ed, 2012), pp 46-49; United Kingdom Parliament, Joint Committee on Parliamentary Privilege First Report HC 214 1998/9 Recommendation 1. Note, however, that the meaning assigned to “proceedings in parliament” for the purpose of delineating the freedom of speech enjoyed by parliamentarians does not automatically control the meaning of the phrase as it applies to qualified privilege for fair reports by the media. Legislation might curtail the meaning of “proceedings in parliament” for the purposes of qualified privilege.

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it must be emphasised that the phrase has a “functional” rather than a geographic base. 151 It is beyond doubt that “proceedings in parliament” encompass not only statements made in debates in a House, but also evidence given before a parliamentary committee, 152 papers presented to a House, 153 and petitions tabled in a House. 154 It is unclear whether discussions and correspondence between members of parliament 155 or between members and ministers on matters that might be raised in parliament 156 are proceedings in parliament. Members of the public who have corresponded with members of parliament are clearly protected by absolute privilege under Art 9 once the correspondence is read or tabled in the house, but the position is less clear in respect of correspondence which has not been incorporated into a parliament’s proceedings. 157 Not every act performed by a member of parliament in the course of their occupation is treated as a proceeding in parliament. 158 Tweets and emails sent from the parliamentary chamber are not regarded as such. 159 Nor is the making of a claim for parliamentary expenses. 160 It has been explained that a member who repeats verbatim outside parliament what he or she said inside parliament is not protected by absolute privilege and can be sued or 151

B Wright, Patterns of Change: Parliamentary Privilege, Parliamentary Studies Paper 2 (2008), http://www.parliamentarystudies.anu.edu.au/pdf/publications/PSP02_Wright.pdf.

152 153 154

Goffin v Donnelly (1881) 6 QBD 307. See also: Parliamentary Committees Act 1991 (SA), s 31. Holding v Jennings [1979] VR 289. Lake v King (1667) 1 Wms 131; 85 ER 128; Re the Royal Commission into the Use of Executive Power; The Queen v Parry (1992) 92 A Crim R 295. Communications between members of parliament include discussions in caucus and letters sent by members of parliament to Ministers on matters that might be the subject of questions in the house: E Campbell, “Reporting of Parliamentary Proceedings” (2000) 5 Media and Arts Law Review 67 at 72. See Huata v Prebble [2004] 3 NZLR 359. The House of Commons, in the Strauss case, did not endorse the opinion of its Committee of Privileges that a member’s correspondence with a Minister regarding a statutory body was a “proceeding in parliament”: HC Debates 591, 8 July 1958, 245. For further discussion see: Re the Royal Commission into the Use of Executive Power; The Queen v Parry (1992) 92 A Crim R 295; Campbell (2003), Ch 3. See generally E Campbell and M Groves, “Correspondence With Members of Parliament” (2006) 11 Media and Arts Law Review 227. Members of the public who have corresponded with members of parliament may be able to claim qualified privilege of the “interest/duty” variety: R v Rule (1937) 2 KB 375. Moreover, a person who initiates reprisals against a member of the public in consequence of the fact that that member of the public gave information to a member of parliament for use in parliament may be found to have committed a contempt of parliament, irrespective of whether the correspondence was a “proceeding in parliament”: Queensland, Legislative Assembly, Committee of Privileges, Possible Improper Action Against Dr William de Maria 72nd report (June 1998). The report was adopted by the Senate. See also, Legislative Assembly Privileges Committee, Parliament of Victoria, Report on the Complaint by the Member for Preston (July, 2006). O’Chee v Rowley (1995) 150 ALR 199 at 203; Slipper v Magistrates Court of the ACT [2014] ACTSC 85 at [48]-[50].

155

156

157

158 159 160

Commonwealth, House of Representatives, Parliamentary Debates, 25 November 2009, p 12863 (The Speaker). R v Chaytor [2011] 1 AC 684. In this case, members of the United Kingdom parliament relied on parliamentary privilege to resist prosecution in the courts for lodging fraudulent travel claims, claiming that the submission of claims for parliamentary expenses was a “proceeding in parliament” and a matter within parliament’s exclusive cognisance. These arguments were rejected by the United Kingdom Supreme Court. See: Y Tew, “No Longer a Privileged Few: Expense Claims, Prosecution and Parliamentary Privilege” (2011) 70(2) The Cambridge Law Journal 282.

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prosecuted in respect of that statement. However, Canadian authorities have suggested that in certain circumstances, statements made by members outside the house regarding matters that have already been discussed in the House will attract absolute privilege on the basis that they are an extension of “proceedings in parliament”. This view had its genesis in an earlier statement of the Privy Council that members of parliament should be protected whenever they are exercising their real or essential functions as members, and that these functions are not confined to what is said and done on the floor of the House. 161 Thus in Roman Corp Ltd v Hudson’s Bay Oil & Gas Co Ltd, 162 the Ontario Court of Appeal held that a telegram sent by the Canadian Prime Minister to a company, and a press release issued by one of his ministers, were “proceedings in parliament” because they were a legitimate and lawful discharge of their duties as ministers of the Crown. The dispatch of the telegram by the Prime Minister was making good his word to the company that it would be informed of some guidelines determined by the government, and in the press release, the minister was “announcing publicly and for the benefit of the public, the guidelines implementing government policy as previously announced in the House”. It has been suggested that the case is confined to the enunciation in good faith of government policy on a matter of public interest. 163 In Australian Broadcasting Corporation v Chatterton, Prior J refused to hold that a television interview given by a member regarding a question he had asked in the House was a proceeding in parliament. 164 Zelling ACJ, however, was prepared to entertain the possibility that a member who repeated statements made in parliament was protected by absolute privilege. 165 It has been suggested that today, Australian courts are more likely to take the view that sufficient protection is available to a member under the extended defence of qualified privilege accorded by Lange v Australian Broadcasting Corporation. 166 In 2011, in a decision described as having rewritten the parameters of parliamentary privilege, 167 the New Zealand Supreme Court held that an occasion will be regarded as privileged only if this is “necessary for the proper and efficient conduct of the business of the House”. 168 Application of this necessity test to the facts of the case resulted in a finding that briefings supplied by a civil servant to a Minister to assist him to give an oral answer in parliament to a written question lodged with the Clerk of the House was not protected by parliamentary privilege. 169 The case has been trenchantly criticised for employing a common law test to delineate a privilege conferred by statute. 170 Joseph has contended that while a necessity test is an appropriate mechanism for fixing the parameters of parliament’s privilege 161

Attorney-General of Ceylon v de Livera [1963] AC 103 at 120-121.

162

163 164

Roman Corp Ltd v Hudson’s Bay Oil & Gas Co Ltd (1972) 23 DLR (3d) 292; affirmed in Roman Corp Ltd v Hudson’s Bay Oil & Gas Co Ltd (1973) 36 DLR (3d) 413. See also Re Clark and Attorney-General of Canada (1978) 81 DLR (3d) 33. Stopforth v Goyer (1978) 87 DLR (3d) 373 at 382; Beitzel v Crabb [1992] 2 VR 121 at 127. Australian Broadcasting Corporation v Chatterton (1986) 46 SASR 1 at 35-36.

165 166

Australian Broadcasting Corporation v Chatterton (1986) 46 SASR 1 at 18-19. Campbell (2003), p 14.

167 168

PA Joseph, “Constitutional Law” [2012] 3 New Zealand Law Review 515 at 527. Attorney-General (NZ) and Gow v Leigh [2012] 2 NZLR 713.

169 170

The Minister’s answer in parliament would, however, be protected. Joseph [2012] 3 New Zealand Law Review 515.

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of exclusive cognisance, since this has a common law foundation, it should not be used to ascertain the scope of freedom of speech, which has a statutory foundation. In Joseph’s view, the question that should have been posed by the Court was whether the defendant’s communication with the Minister was a “proceeding in parliament”; if so, it should attract the protection of Art 9. 171 The case has not been considered by an Australian court and has since been overridden by s 10 of the Parliamentary Privilege Act 2014 (NZ).

The position under legislation [4.160] The phrase “proceedings in parliament” has been legislatively defined in the Commonwealth and the Northern Territory to mean all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a house or committee. 172 Specific examples are listed, which are expressed not to limit this general definition. They are: evidence given before a House or committee; the presentation or submission of a document to a House or a committee; the preparation of a document for purposes of or incidental to the transacting of any such business; 173 and documents formulated, made or published by or pursuant to an order of a House or committee. A definition of “proceedings in parliament” has also been adopted in Queensland. 174 and New Zealand. 175 These statutory definitions appear to give the phrase a wider meaning than it enjoys under Art 9. 176 In particular, the references to words spoken, acts done and documents prepared “for the purposes of or incidental to” the transacting of the business of the house or committee may bring correspondence and communications between members of parliament, and between members of the public and members of parliament within the description of “proceedings in parliament”. However, even if the provision is given a generous interpretation, 177 it does not follow that all correspondence to members will be protected by parliamentary privilege. Indeed, it has been said that outsiders cannot “manufacture 171 172

173

174 175 176 177

Joseph [2012] 3 New Zealand Law Review 515 at 530. Parliamentary Privileges Act 1987 (Cth), s 16(2); Legislative Assembly (Powers and Privileges) Act (NT), s 6. The provision also applies in the Australian Capital Territory by virtue of s 24 of the Australian Capital Territory (Self Government) Act 1988 (Cth). The definition only applies for the purposes of Art 9 and s 16; it does not govern the ambit of the qualified privilege enjoyed by the media: Campbell, (2000) 5 Media and Arts Law Review 67 at 73. Section 16(2)(c) was considered in O’Chee v Rowley (1997) 150 ALR 199 in the context of a document retained by a member for the purpose of transacting parliamentary business. The protection given to the records and correspondence of members was the subject of a report by the House of Representatives, Standing Committee of Privileges Report of the Inquiry into the Status of the Records and Correspondence of Members PP 417 (2000). See also: J Moore, “David, Goliath and the Stone of Judicial Review: the Shield of Parliamentary Privilege in Stewart v Ronalds” (2011) 26(2) Australasian Parliamentary Review 70; In the Matter of the Board of Inquiry into Disability Services [2002] ACTSC 28; British American Tobacco Australia Ltd v Secretary, Department Of Health And Ageing (2011) 281 ALR 75 at 89-90. Parliament of Queensland Act 2001 (Qld), s 9. Parliamentary Privilege Act 2014 (NZ), s 10. Campbell and Groves, (2006) 11 Media and Arts Law Review 227 at 239. In Erglis v Buckley [2005] QSC 25; Erglis v Buckley [2005] QCA 404, a group of nurses sent a letter to the Queensland health minister which recorded views they had expressed to the minister at a meeting, and which was written at the invitation of the minister. It contained defamatory comments about Erglis. Later the same

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parliamentary privilege for a document by the artifice of planting the document upon a parliamentarian”. 178 Whether or not correspondence from a constituent becomes a proceeding in parliament ultimately depends on whether the member makes it parliamentary business.

Is s 16(3) a valid law? [4.170] The validity of s 16(3) has been challenged on several grounds. One is that it causes a court to exercise its judicial power in a manner that is inconsistent with the essential character of a court and with the nature of judicial power. In so far as it prohibits the cross examination of witnesses in court on evidence they have previously given before a parliamentary committee, it is said to inhibit the court in ascertaining the truth, and thus invalidly prevents a court from discharging its foremost judicial function. 179 Moreover, in so far as the operation of s 16 can oblige a court to stay proceedings in the interests of justice, it has been argued that it impairs judicial power, since it dictates the result of the case. 180 If s 16 is only declaratory of Art 9, and thus does not travel beyond s 49 of the Commonwealth Constitution, 181 the argument will fall to be determined according to whether s 49 is subject to implications to be found in Chapter III of the Constitution. Some judges take the view that it is not so subject. 182 If, on the other hand, s 16(3) makes new law, it might be thought that the contention that it requires a court to exercise its judicial power in a manner that is inconsistent with the essential character of a court is stronger. However, an argument to that effect was rejected in Rann v Olsen by those members of the court who were prepared to accept that s 16(3) extended the operation of Art 9. These judges found that s 16(3) is no different in substance from any other law that excludes certain evidence from the consideration of the court (such as evidence which is subject to legal professional privilege or public interest immunity), even if the evidence could have a decisive effect on the case. 183 day, the Minister read and tabled the letter in the Queensland Parliament. Erglis sued the nurses in defamation. The Queensland Court of Appeal held that the nurses were protected by parliamentary privilege in respect of the defamatory comments in the letter up to the time it was used in Parliament. It was held that the acts of composing, typing, printing and sending the letter to the Minister were acts done “in the course of, or for the purposes of or incidental to, transacting the business of the Assembly”. Accordingly, Erglis was not entitled to impeach or question them by bringing an action for damages for defamation against her fellow nurses. The consequence was that the privilege was able to be claimed by persons who were not members of parliament. The Court of Appeal was not perturbed by this result, stating that the relevant Queensland provisions did not in their terms confine the privilege to members of parliament. The crux in this case was that the minister had appropriated the document to proceedings in parliament when she invited the defendants to write the letter and undertook to read it out. The case is discussed in G Griffith, Parliamentary Privilege: Major Developments and Current Issues (Background Paper No 1/07, NSW Parliamentary Library Research Service, 2007), [6.5]. 178 179 180 181 182

183

O’Chee v Rowley (1997) 150 ALR 199 at 209. Harders (1993) 67 Australian Law Journal 109 at 140. E Campbell, “Parliamentary Privilege and Admissibility of Evidence” (1999) 27 Federal Law Review 367 at 374. Section 49 is discussed in [4.240]. See, for example, Amann Aviation Pty Ltd v Commonwealth (1988) 19 FCR 223. For an argument that s 49 does not confer unrestricted legislative power and is constrained by implied constitutional prohibitions see: Campbell, (1999) 27 Federal Law Review 367 at 376-381. Rann v Olsen (2000) 76 SASR 450 at 484-485.

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Conflicting views have been expressed as to whether s 16(3) infringes the implied freedom of political communication. While the provision confers unbridled freedom of communication on those who are involved in proceedings in parliament, it may operate to inhibit what people are prepared to say outside parliament by way of commentary on political proceedings because they may not be able to rely upon defences if they are sued for defamation. 184 Does this infringe the implied freedom? As explained in [4.130], in Laurance v Katter 185 Pincus JA held that s 16(3) was incompatible with the implied freedom, at least in relation to defamation actions, and therefore did not validly operate with respect to them. Davies JA was able to avoid having to resolve this constitutional issue by reading s 16(3) down so that it applies only where a court concludes that freedom of speech in parliament would be impaired. 186 Fitzgerald JA upheld the validity of s 16(3). In Rann v Olsen an argument was put to the court that in so far as s 16(3) prevented a defendant in a defamation action from tendering evidence, asking questions or making submissions for the purpose of questioning the truth of a plaintiff member’s statements made before a parliamentary committee (an interpretation that was ultimately accepted by the court) it was invalid. However, the court held that if s 16(3) merely enacts or declares the effect of Art 9, it is not capable of being invalid on the basis that it infringes the implied freedom of political communication. This is because s 49 of the Commonwealth Constitution is taken to enact the provisions of Art 9, and any implications drawn from other provisions of the Constitution (including the provisions which establish representative and responsible government) must give way to an express provision. 187 If, on the other hand, s 16 enlarges the protection given by Art 9 it has the potential to infringe the implied freedom, and the two limb test in Lange v Australian Broadcasting Corporation 188 would need to be applied to determine whether it is valid. First, does s 16 effectively burden freedom of communication about government or political matters in its terms, operation or effect? From the perspective of members and other participants in proceedings in parliament, s 16 enhances and encourages freedom of speech; indeed, this is its very purpose. However, in so far as the section operates to deprive persons who comment outside parliament on what is said and done in parliament of a defence to an action brought against them in defamation, it burdens freedom of speech. Such a burden is significant, and could have a chilling effect on what the media is prepared to publish about what occurs in parliament. Since s 16 was held to impose a burden on freedom of communication about political matters, it was necessary for the court to determine whether the burden is reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of representative and responsible government. The court 184 185

Campbell (2003), p 102. Laurance v Katter (1996) 141 ALR 447.

186

It has already been explained that the “case specific” approach of Davies JA to s 16(3) was discounted in Rann v Olsen (2000) 76 SASR 450: [4.140].

187

Rann v Olsen (2000) 76 SASR 450 at 476. It should be noted, however, that there are arguments that the source of the power to enact s 16 is not s 49 alone, but s 49 in combination with s 51(xxxvi) and 51(xxxix), both of which are expressed to be “subject to the Constitution” and thus to the implied freedom. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

188

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answered this question in the affirmative, although not without hesitation. 189 A final resolution of this vexed issue awaits a decision of the High Court.

Freedom of speech and constitutional guarantees of access to courts [4.180] Jurisdictions which have a bill of rights may have to grapple with the relationship between the freedom of speech accorded to members of parliament under Art 9 and a provision in the bill of rights which confers on persons within that jurisdiction a right to have their rights and obligations determined by an independent and impartial tribunal in a fair and public hearing. 190 This question came before the European Court of Human Rights in A v United Kingdom in respect of defamatory comments made about “A”, a United Kingdom national, by a member of parliament in the UK House of Commons. 191 The Court held that the absolute privilege which prevents members of parliament from being sued for defamatory statements made in the house did not violate the right of access to a court conferred on UK nationals by the European Convention for the Protection of Human Rights and Fundamental Freedoms, because the absolute privilege pursues legitimate aims 192 and there is a proportionate relationship between the means employed and the aims sought to be achieved. 193

Contempt of parliament [4.190] In addition to their privileges, Houses of Parliament possess certain powers which can be exercised to protect the integrity of their processes and to ensure that they and their committees and members are able to carry out their functions without interference. 194 They include the power to determine their own rules of conduct and procedure, the power to conduct inquiries (generally delegated to committees), the power to require the attendance of persons and the production of documents and the power to punish contempts of parliament. Although parliaments rarely invoke their power to punish contempts, the very existence of the 189

Doyle CJ with whom Lander and Mulligan JJ agreed. Prior J agreed with this result in the event that s 16(3) does extend the operation of Art 9 (a proposition with which he disagreed): at 491.

190

A bill of rights will invariably contain a provision to this effect. See, for example, European Convention for the Protection of Human Rights and Fundamental Freedoms, Art 6; Canadian Charter of Rights and Freedoms, Art 11; United States Constitution Sixth Amendment; Bill of Rights Act 1990 (NZ), s 25; Human Rights Act 2004 (ACT), s 21; Charter of Human Rights and Responsibilities Act 2006 (Vic), s 24(1). A v United Kingdom (2002) 36 EHRR 917; [2002] ECHR 811. “A” also argued that the absolute privilege infringed a number of other articles in the Convention. These arguments were also rejected.

191 192

193

194

These aims are: to preserve the free speech of members so that they can engage in unhindered debate, and to regulate the relationship between parliament and the courts in order to achieve a separation of powers: A v United Kingdom (2002) 36 EHRR 917; [2002] ECHR 811 at [66], [71]. In fact, the court found that the immunity afforded to MPs in the United Kingdom is narrower than the immunity enjoyed by MPs in some of the other signatory states for the reason that: the immunity is designed to protect parliament as a whole, not to promote the interests of individual members; no absolute immunity is conferred on those who report parliamentary proceedings; the defamed person can petition parliament to have the statements retracted; and an MP who makes deliberately misleading statements can be dealt with for contempt by the House: A v United Kingdom (2002) 36 EHRR 917; [2002] ECHR 811 at [84]-[86]. The immunities and powers of parliaments are often collectively referred to as privileges, but as explained in Odgers’ Australian Senate Practice, they are quite distinct: Evans and Laing (eds), (13th ed, 2012), p 41.

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power and consequent risk of punishment has the potential to serve as a source of restraint on what is published by the media, and therefore to restrict the information received by the public. The nature of the contempt power and the restrictions it imposes on media organisations is the subject of this section.

What is contempt of parliament? [4.200] A contempt of parliament is an offence against parliament. However, what constitutes a contempt has not been exhaustively defined by legislation, nor, for the reasons explained in [4.20], has it been the subject of developed case law by the courts. Rather, whether a contempt has been committed is determined on a case by case basis by parliaments. The fact that parliaments are not bound by a system of precedent when making determinations makes it difficult to predict in any given situation whether a contempt will be regarded as having occurred. However, it is possible to make some general comments about contempt. First, although not capable of precise definition, a widely accepted working definition of contempt has been extracted from the extensive case law of the parliaments. “Contempt of parliament” is generally taken to encompass “any act or omission which obstructs or impedes either House of Parliament in the performance of its functions, or which obstructs or impedes any Member or officer of such House in the discharge of his duty, or which has a tendency, directly or indirectly, to produce such results … even though there is no precedent of the offence”. 195 The same can be said of acts or omissions that obstruct or impede a committee of a House. The Commonwealth, Northern Territory and Queensland Parliaments have elevated this working definition into a statutory limitation on the concept of contempt. In those jurisdictions, conduct (including the use of words) cannot constitute an offence against a House unless it amounts, or is intended or likely to amount, to an improper interference with the free exercise by a House or committee of its authority or functions, or with the free performance by a member of the member’s duties as a member. 196 Although neither the working definition nor the statutory limitation on contempt stipulate that an intention to obstruct or interfere with parliament is necessary, 197 in practice, most parliaments regard a culpable intention as essential to establish a contempt, 198 or at the least, highly relevant. 199 The difficulty in finding a culpable intention has enabled many persons to escape a finding of contempt. 195

Jack (ed), (24th ed, 2011), p 251.

196

Parliamentary Privileges Act 1987 (Cth), s 4; Legislative Assembly (Powers and Privileges) Act (NT), s 5; Parliament of Queensland Act 2001 (Qld), s 37(2). This has been described as a “threshold” or “indicative” definition of contempt: United Kingdom, Parliamentary Privilege, Cmd 8318 (2012) at [271]; United Kingdom Parliament, Joint Committee on Parliamentary Privileges, HL Paper 30; HC 100 (2013) at [71].

197

House of Representatives Standing Committee of Privileges, Parliament of Australia, Report Concerning the Possible Unauthorised Disclosure of In Camera Evidence to the Defence Sub-Committee of the Joint Standing Committee on Foreign Affairs, Defence and Trade, June 2001, [1.9]. A culpable intention is regarded as essential by the Senate: Evans and Laing (eds), (13th ed, 2012), p 85.

198 199

See, eg, Australian Capital Territory, Legislative Assembly Standing Order 278; Western Australia, Legislative Council, Standing Orders, Sch 4.

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Secondly, while it is always a contempt of parliament to breach a privilege of parliament, a person can be guilty of contempt without breaching a parliamentary privilege. 200 Unlike privileges, which are specifically established, Parliament is free to find any act to be a contempt without the need for a precedent. 201 However, although breach of the privilege of free speech could be dealt with by parliament as a contempt, parliaments usually entrust the courts to ensure that they do not receive evidence which would infringe the privilege. 202 Thirdly, contempts of parliament can occur both within a house and outside its precincts, and can be committed by members of parliament and by strangers (such as journalists and media organisations). Finally, some acts which have been held to be in contempt of parliament are also criminal offences 203 which are tried and punished by the courts with all the usual protections. 204 Where this is the case, the House of parliament concerned can usually direct the Attorney-General (or other law officer) to institute legal proceedings either in addition to, or in lieu of, its own proceedings. 205 Although this concurrent jurisdiction between parliaments and

200

201

Memorandum by the General Council of the Bar, House of Commons HC 34 (1967-68), p 171; Joint Select Committee on Parliamentary Privilege, Parliament of Australia, Final Report, October 1984, [3.21], [3.22]; Senate Committee of Privileges, Parliament of Australia, Penalties for Contempt, Information Paper 95th Report, September 2000, p 2; Jack (ed), (24th ed, 2011), pp 191, 203; Evans and Laing (eds), (13th ed, 2012), p 41; Wright (ed), (6th ed, 2012), p 731. This is not strictly true of jurisdictions that have a statutory definition of contempt: Evans and Laing (eds), (13th ed, 2012), p 82.

202

An unsuccessful attempt to get parliament to deal with a breach of the privilege of free speech as a contempt occurred in 2009. During committal proceedings for rape charges brought against Victorian Legislative Council member Theo Theophanous, the Crown prosecutor, Ms Williams SC, quoted from a parliamentary speech Theophanous made in 2006 and proceeded to use it against him. After a Magistrate refused to commit him for trial, Theophanous wrote to the President of the Victorian Legislative Council, and raised with him whether the prosecutor had committed a prima facie breach of privilege. However, the Speaker did not give the matter precedence over other business andit was not pursued further: Victoria, Parliamentary Debates, Legislative Council, 11 August 2009, p 3881 (The President).

203

In Highway v Tudor-Stack [2006] NTCA 04 the Northern Territory Court of Appeal rejected an argument that the doctrine of separation of powers deprives parliaments of the ability to enact legislation which creates an offence at law for a matter that might equally be adjudged to be a breach of privilege or other contempt of parliament. See, for example, Criminal Code (WA), ss 56-61. A select committee of the Western Australian parliament recommended that these sections be repealed: Select Committee into the Appropriateness of Powers and Penalties for Breaches of Parliamentary Privilege and Contempts of Parliament (2009). However, the Legislative Council’s Committee on Procedure and Privileges recently expressed its disagreement with this recommendation: Standing Committee on Procedure and Privileges, Review of the Report of the Select Committee into the Appropriateness of Powers and Penalties for Breaches of Parliamentary Privilege and Contempts of Parliament Report 29 (2014). The latter Committee regarded the Code offences as encapsulating the most serious forms of contempt and considered that they should be retained for two primary reasons: their status as criminal offences provides a significant deterrent against their commission and it is appropriate that the Council “retain an ability to refer such matters to the courts so that the offences may be adjudged within an environment having the highest standards of fairness and with all the expected legal and evidential safeguards and the strongest penalty provisions”: at [6.17]. In some jurisdictions, legislation deals expressly with directions to prosecute, for example: Parliamentary Privilege Act 1858 (Tas), s 11; Parliamentary Privileges Act 1891 (WA), s 15.

204

205

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the courts gives rise to the potential for conflicting decisions, 206 it is highly unlikely that a parliament would conduct an inquiry or exercise its contempt powers if legal proceedings were on foot. 207 In some jurisdictions legislation provides that a person cannot be proceeded against or punished twice for the same offence, whether as a breach of privilege or as an offence against an enactment or the common law. 208 Since in many cases it would be difficult, if not impossible, for courts to try such offences without reference to proceedings in parliament, parliamentary privilege is regarded as abrogated by necessary implication in relation to such evidence. 209 The unpredictability of contempt of parliament is exacerbated by the fact that even where a contempt has been found to have been committed, the form and severity of the punishment can vary greatly. However, the potential for variation is more theoretical than real. Whilst most parliaments possess the power to imprison or to impose other punishments in response to a finding of contempt, parliaments nowadays use their contempt powers with great reluctance and punishments are rarely inflicted. 210 In the vast majority of cases, a House resolves that its dignity is best maintained by taking no action or accepts an apology from the contemnor. In most jurisdictions, it is the practice for a House to refer a complaint regarding a potential breach of privilege or a contempt to its Committee of Privileges. 211 The committee investigates the complaint and makes a recommendation to the House, which then resolves whether to adopt the recommendation and what action to take. 212 Most Houses have laid down formal procedures that they will follow, both in relation to how matters of privilege and contempts can be raised and in relation to how an inquiry into such matters will proceed. 213 206

207

Western Australia, Response to United Kingdom Parliament, Joint Committee on Parliamentary Privilege First Report, Vol 2, Minutes of Evidence 10 February 1998, HC 214 1998/9. For a discussion of this issue of concurrent jurisdiction see: Legislative Council, Parliament of Western Australia, Select Committee into the Appropriateness of Powers and Penalties for Breaches of Parliamentary Privilege and Contempts of Parliament (2009), [6.1]-[6.13]. Evans and Laing (eds), (13th ed, 2012), p 86.

208

See, for example, Parliament of Queensland Act 2001 (Qld), s 47; Constitution Act 1975 (Vic), s 19A(9) (in the context of witnesses before parliament or parliamentary committees).

209

Legislative Council, Parliament of Western Australia, Select Committee of Privilege on a Matter Arising in the Standing Committee on Estimates and Financial Operations (2007), [2.67]. In 1977, the House of Commons accepted the advice of a 1967 committee and formally adopted a policy of restraint in relation to the exercise of its penal jurisdiction: CJ (1977-78), p 170 and 3rd Report of the Committee of Privileges, HC (1976-77), p 417. The United Kingdom Parliament, Joint Committee on Parliamentary Privilege First Report HC 214 1998/9 noted that this policy had markedly reduced the number of occasions when the house or a committee of privileges has considered such matters: at [21]. In practice, the federal Houses of Parliament do likewise. Nevertheless, “while the powers remain, so too does the possibility of their use”: J Waugh, “Contempt of Parliament in Victoria” (2005) 26 Adelaide Law Review 29 at 30. The committee dealing with privileges might be known by another name and might be a standing committee or a select committee. See R McDonald, “The Role of the Privileges Committee and the Relevancy of a Penal Jurisdiction of a House in Current-Day Parliaments” (2007) 22(2) Australasian Parliamentary Review 73.

210

211

212 213

The committee itself has no power to impose a penalty. See, for example: Commonwealth Parliament, Senate, Parliamentary Privilege, Resolutions Agreed to by the Senate on 25 February 1988; House of Representatives Standing Committee on Privileges and Members’ Interests, Parliament of Australia, Procedures of the Committee and the House in Relation to Consideration of

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The latter represents an attempt to accord natural justice and procedural fairness to witnesses and persons accused of contempt, in so far as it is possible for parliaments to do so.

Courts and contempt of parliament [4.210] Courts play a very limited role in relation to contempt of parliament, as they generally have no right to regulate the manner in which parliaments conduct their business. However, the proposition that parliament is the sole judge of whether a contempt has been committed is subject to some qualifications. According to Odgers’ Australian Senate Practice, in jurisdictions where parliaments have enacted a statutory definition of contempt, it is no longer possible for these parliaments to treat any act as a contempt. 214 Subject to the limits of judicial review, a court could overturn a punishment for contempt if the conduct for which a person was punished did not amount, or was not intended or likely to amount, to an improper interference with the House, committee or member. This may not be the case in Queensland. 215 The judgment of a house as to whether a contempt has been committed is expressed by its resolution and by any warrant committing the person to custody. Where a warrant for committal of a contemnor has been issued, courts may possess the power to examine the conclusion of the house as expressed in the warrant; it depends on whether the warrant specifies the ground of the commitment. In the absence of legislation to the contrary, it is not required to do so. 216 If the form of the warrant is general, the courts are incompetent to inquire into the nature of the contempt and the warrant is conclusive. 217 However, if the warrant does specify the ground of commitment, a court may determine whether the ground is sufficient in law to amount to a contempt. 218 Legislation in many Australian jurisdictions now requires a resolution and warrant committing a person for contempt to contain particulars of the matters constituting the offence. 219 This means that a person subject to committal could seek judicial review on the ground that the conduct could not be regarded as constituting a

214 215

216 217 218 219

Privilege Matters and Procedural Fairness PP 193 (2009); House of Representatives, Resolutions of the House, Procedures for the Protection of Witnesses before the Committee of Privileges and Members’ Interests; Procedures of the House of Representatives for Dealing with Matters of Contempt; Parliament of Queensland Act 2001 (Qld), ss 11, 40(1). Evans and Laing (eds), (13th ed, 2012), p 82. Despite the existence of a statutory definition of contempt, the Parliament of Queensland Act 2001 (Qld) provides that whether or not a contempt has been committed is ultimately for the Assembly to decide, acting on such advice it considers appropriate: s 38. Speaker of the Legislative Assembly of Victoria v Glass (1871) LR 3 PC 560. Burdett v Abbot (1811) 14 East 1; 104 ER 501; Case of the Sheriff of Middlesex (1840) 11 Ad & E 273; 113 ER 419. R v Richards; Ex parte Fitzpatrick & Browne (1955) 92 CLR 157 at 162. See, for example, Parliamentary Privileges Act 1987 (Cth), s 9; Legislative Assembly (Powers and Privileges) Act (NT), s 26; Parliamentary Privilege Act 1858 (Tas), s 7, but see s 10; Parliamentary Privileges Act 1891 (WA), s 11. See Campbell (2000) 5 Media and Arts Law Review 67 at 79.

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punishable offence. 220 Contempt cases in respect of which no warrant for the committal of the contemnor is issued cannot be reviewed. 221 Nor can the courts interfere if a parliament chooses not to treat an action as a contempt. The fact that contempts are dealt with internally by parliaments and not by the courts has attracted considerable criticism. 222 One major objection is that persons accused of committing a contempt do not enjoy the procedural and evidentiary protections that are afforded to accused persons in criminal proceedings tried in a court of law. For example, persons accused of contempt have no right to be heard in their own defence or to be represented by counsel and have no trial as such, notwithstanding that a finding of contempt can lead to imprisonment. Further, there is no appeal from a finding of contempt made by Parliament. As explained in [4.200], Parliaments have sought to overcome these criticisms by laying down procedures to be followed in inquiries into breaches of privilege and other contempts, but these protections are not legally enforceable entitlements. Objection has also been taken to the fact that in dealing with contempts, parliaments are both accusers and judges in their own cause and are thus unable to act as an independent tribunal. 223 This has led to a suggestion that the power to punish contempts should be transferred to the courts. 224 However, parliaments have shown considerable resistance to this suggestion, maintaining that a transfer of penal power to the courts would violate the doctrine of parliamentary sovereignty and the doctrine of separation of powers. 225 In Odgers’ Australian Senate Practice it is argued that it is no more incongruous that parliaments deal with allegations of contempt internally than that courts deal with allegations of contempt of court. If the courts are best placed to determine what interferes with the administration of justice, parliaments are probably best placed to 220 221

222 223 224

225

Campbell (2000) 5 Media and Arts Law Review 67 at 79. Although the Commonwealth legislation does not require a resolution imposing a fine for a contempt to include particulars of the conduct which led to the fine, it has been suggested that a person fined under the Act could, in an action for recovery of the fine, plead that the conduct for which the fine was imposed could not in law amount to a contempt: E Campbell, “Contempt of Parliament and the Implied Freedom of Political Communication” (1999) 10 Public Law Review 196 at 198. These criticisms are summarised in Evans and Laing (eds), (13th ed, 2012), pp 86-87. This criticism is expounded in Commonwealth Parliament, Joint Select Committee on Parliamentary Privilege PP 87/ 1984, [4.16], [7.2]. For example, the United Kingdom Joint Committee on Parliamentary Privilege recommended that the UK parliament’s penal powers over non-members be transferred to the courts: First Report, HC 214 1998/9 Recommendation 26. In 2007, Professor Geoffrey Lindell and Professor Gerard Carney recommended that the penal jurisdiction of the House of Representatives should be transferred to the High Court, provided the House retained the sole power to initiate judicial proceedings for contempt: Review of Procedures of the House of Representatives Relating to the Consideration Of Privilege Matters And Procedural Fairness (2007). Legislative Council, Parliament of Western Australia, Select Committee into the Appropriateness of Powers and Penalties for Breaches of Parliamentary Privilege and Contempts of Parliament (2009), [5.4]. The Committee warned against allowing the courts “to control the ability of parliament to defend itself from interference and disregard for its authority”. Other compelling reasons why the penal jurisdiction of parliaments should not be transferred to the courts are listed in [5.4]-[5.10] of this report. They include: the courts are not well placed to make decisions about what kind of conduct would obstruct or impede the working of parliament and parliaments can take timely action in response to a contempt whereas proceedings in the courts take time. Similar arguments have been made against the criminalisation of certain contempts: United Kingdom Parliament, Joint Committee on Parliamentary Privilege, HL Paper 30/HC 100 (2013) at [70].

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determine which acts or omissions interfere with the performance of their functions. 226 This could be countered by an argument that courts are accustomed to ascertaining and applying the law to individual cases, whereas parliaments are not. It is also to be noted that parliaments rarely, if ever, imprison; at most, they reprimand and warn.

Contempt powers of the House of Commons [4.220] Before discussing the powers of the Australian parliaments to deal with contempts of parliament committed by the media, it is necessary to outline the powers possessed by the House of Commons to deal with such contempts. 227 This is because the majority of Australian parliaments define their powers, privileges and immunities by reference to those of the House of Commons. In most cases, the link is to the powers, privileges and immunities possessed by the House of Commons at a particular point in time, ranging from 21 July 1855 to 1 January 1989. It seems clear that the powers of the House of Commons to deal with contempts did not change significantly between these dates, except, perhaps, that by 1989 it was generally accepted that the House of Commons could not impose fines. When it is alleged or resolved that certain conduct by a non-member constitutes a contempt of parliament, the House of Commons has at least four powers that it can exercise. 228 First, the House can compel a person to attend before the House to be examined in relation to an allegation of contempt. 229 Secondly, the House of Commons can direct the Speaker to reprimand or admonish the person. 230 Thirdly, it can imprison the person. 231 The term of imprisonment can be for a fixed period, or until the person purges the contempt, or until the House resolves to release the person, but in any event, cannot extend beyond the duration of the existing session of the House. 232 Upon the prorogation of the House the offender is automatically released, although the House could order the offender to be re-arrested and imprisoned in the next session. The House of Commons has been loath to exercise its power to commit without any procedure for review and has not done so since 226

227

228

229 230

Evans and Laing (eds), (13th ed, 2012), p 87. Other reasons why parliaments should retain the power to punish contempts are listed on pp 87-90. See also Commonwealth Parliament, Joint Select Committee on Parliamentary Privilege PP 87/1984, [7.6]-[7.11]. The current powers of the House of Commons are discussed at length in Jack (ed), (24th ed, 2011), pp 191-201. The House of Commons also has power to deal with contempts committed by its own members, but these have no relevance to the media and will not be discussed. The origin of the power of the House of Commons to punish contempts is inherent in the parliament and lies in the peculiar medieval concept of the Parliament as a court of justice: Jack (ed), (24th ed, 2011), pp 192, 203-204. While the House of Commons no longer claims to be a court of record, the surrender of the claim was not accompanied by an abandonment of the concomitant powers that flowed from the notion that the House was a court: D Limon and WR McKay (eds), Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament (22nd ed, 1997), pp 131-132. See also Burdett v Abbot (1811) 14 East 1; 104 ER 501 at 554. Gosset v Howard (1845) 10 QB 411; 116 ER 158 at 172; Jack (ed), (24th ed, 2011), pp 191-192. Jack (ed), (24th ed, 2011), pp 196-197.

231

Jack (ed), (24th ed, 2011), pp 192-196.

232

Stockdale v Hansard (1839) 9 Ad & E 1; 112 ER 1112 at 1156. If held in custody beyond the duration of the session, the offender can be discharged upon a writ of habeas corpus: Stockdale v Hansard (1839) 9 Ad & E 1; 112 ER 1112 at 1156.

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1880, although it has contemplated using the power on several occasions since that date. 233 It is possible that the European Court of Human Rights might find that the power of the House of Commons to punish a person for contempt without a trial before a court of law might infringe the contemnor’s human rights. 234 Finally, the House of Commons can remove or exclude strangers from the galleries of the House (including the Press Gallery). 235 The House of Commons can also order a person to apologise for his or her conduct. While not a punishment in the strict sense of the word, failure to comply with the request would itself amount to a contempt, which could then be dealt with in one of the aforementioned ways. The House of Commons formerly imposed fines for contempt of parliament, but has not done so since 1666. 236 Although the power has never been distinctly renounced, it has been suggested that it has lapsed through lack of use and can no longer be exercised. 237 Over the years, several privileges committees have recommended that the power to fine be re-introduced. In 1999, a United Kingdom Joint Committee on Parliamentary Privilege, in a review of parliamentary privilege, recommended that the United Kingdom Parliament’s powers and privileges be codified in legislation 238 and made a number of significant recommendations for changes to the powers of the United Kingdom Parliament to punish contempts. 239 In particular, it recommended that Parliament’s power to fine should be re-stated and its power to imprison persons for contempt should be abolished, save that parliament should be able to temporarily detain persons who are misconducting themselves within a house or its precincts. 240 The Committee recommended that parliament’s penal powers over non-members 233

234

235

Jack (ed), (24th ed, 2011), p 192; United Kingdom Parliament, Joint Committee on Parliamentary Privilege First Report HC 214 1998/9, [22]. It has been suggested that the House of Commons may no longer possess the power to imprison: R v Chaytor [2011] 1 AC 684 at 711. Legislative Assembly of Queensland, Members’ Ethics and Parliamentary Privileges Committee, First Report on the Powers, Rights and Immunities of the Legislative Assembly, its Committees and Members, Report 26 (1999), [4.1.2]. Jack (ed), (24th ed, 2011), pp 12-16.

236 237

CJ (1660-67), p 690. See, for example, R v Pitt and R v Mead (1762) 3 Burr 1335; 97 ER 861 per Lord Mansfield; United Kingdom Parliament, Joint Committee on Parliamentary Privilege First Report HC 214 1998/9, [14]; Parliament of the Commonwealth of Australia, Senate, Committee of Privileges, Penalties for Contempt Information Paper 95th report, September 2000, p 18; United Kingdom, Parliamentary Privilege, Cmd 8318 (2012) at [252]. But see [4.270] n 287 regarding the relatively recent imposition of a fine by the New Zealand Parliament.

238

United Kingdom Parliament, Joint Committee on Parliamentary Privilege First Report HC 214 1998/9 Recommendations 24 and 39. These recommendations are discussed in P Leopold, “Report of the Joint Committee on Parliamentary Privilege” [1999] Public Law 604. United Kingdom Parliament, Joint Committee on Parliamentary Privilege First Report HC 214 1998/9 Recommendation 25. In similar vein, a Western Australia Legislative Council Select Committee report took the view that the sanction of imprisonment is neither necessary nor appropriate for Parliament to possess as a means of upholding its privileges, except for the purpose of maintaining order and preserving security, in which case it should have the power to temporarily detain people who are disrupting the proceedings of a House or a committee: Legislative Council, Parliament of Western Australia, Select Committee into the Appropriateness of Powers and Penalties for Breaches of Parliamentary Privilege and Contempts of Parliament (2009), [7.9]-[7.13], Recommendation 3. However, the recommendation was conditional on parliament being given a wide power to impose fines.

239 240

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be transferred to the High Court, although Parliament should retain a residual discretion, including power to admonish a non-member who accepts that he or she acted in contempt of parliament. 241 No immediate action was taken in response to the Joint Committee’s report. Subsequent reviews of parliamentary privilege by the government and by a Joint Committee on Parliamentary Privilege rejected the 1999 report and concluded that there is no strong case for legislating to comprehensively codify Parliamentary privilege, confirm Parliament’s penal powers or criminalise specific contempts. 242 Instead, it was recommended that the UK houses of parliament should reassert their historic and continuing penal jurisdiction, set out formally the kinds of behaviour likely to constitute contempt and establish procedures for exercising their contempt powers via resolutions and standing orders. 243

Contempt powers of the Commonwealth, State and Territory parliaments [4.230] A series of decisions in the 19th century confirmed that colonial parliaments did not, as a consequence of the application of common law in the colonies, inherit the powers and privileges of the United Kingdom parliament. 244 Rather, the powers inherent in colonial parliaments “were more limited than those exercised by the House of Commons”. 245 Colonial parliaments possess only protective or self-preserving powers, that is, such powers as are reasonably necessary to safeguard their existence and the proper exercise of their functions. 246 Although the concept of necessity is somewhat malleable, it has always been understood the concept did not require that colonial legislatures have punitive powers. 247 241 242

243

244

245 246

247

United Kingdom Parliament, Joint Committee on Parliamentary Privilege First Report HC 214 1998/9, Recommendation 26. United Kingdom Parliament, Joint Committee on Parliamentary Privilege, HL Paper 30/HC 100 (2013); Government Response to the Joint Committee on Parliamentary Privilege, Presented to Parliament by the Leader of the House of Commons by Command of Her Majesty, Cm 8771 (December 2013). United Kingdom Parliament, Joint Committee on Parliamentary Privilege, HL Paper 30/HC 100 (2013) at [76], [80]; Government Response to the Joint Committee on Parliamentary Privilege, Presented to Parliament by the Leader of the House of Commons by Command of Her Majesty, Cm 8771 (December 2013). Kielley v Carson (1842) 4 Moo PC 63; 13 ER 225; Kilbourn v Thompson 103 US 168 (1880). The reason is that the powers of the House of Commons to punish contempts stemmed from its genesis as a court of record. In light of the fact that the “High Court of Parliament” is an institution peculiar to England, colonial parliaments, which were in no sense courts, did not inherit the same powers: E Campbell, “The Penal Jurisdiction of Australian Houses of Parliament” (1962-64) 4 Sydney Law Review 212 at 212-213. See also A Twomey, “Reconciling Parliament’s Contempt Powers with the Constitutional Separation of Powers’” (1997) 8 Public Law Review 88 at 89-90. S Walker, Contempt of Parliament and the Media (Adelaide Law Review Research Paper No 4, 1984), p 9. Kielley v Carson (1842) 4 Moo PC 63; 13 ER 225; Fenton v Hampton (1858) 11 Moo PC 347; 14 ER 727; Doyle v Falconer (1866) LR 1 PC 328; 16 ER 293; Barton v Taylor (1886) 11 App Cas 197. See also Hartnett v Crick [1908] AC 470; Willis and Christie v Perry (1912) 13 CLR 592; Armstrong v Budd (1969) 71 SR (NSW) 386; Egan v Willis & Cahill (1996) 40 NSWLR 650; Canada (House of Commons) v Vaid [2005] 1 SCR 667. Fenton v Hampton (1858) 11 Moo PC 347; 14 ER 727; Doyle v Falconer (1866) LR 1 PC 328; 16 ER 293; Barton v Taylor (1886) 11 App Cas 197; Willis and Christie v Perry (1912) 13 CLR 592; Egan v Willis & Cahill (1996) 40 NSWLR 650 at 666; Egan v Willis (1998) 195 CLR 424. Whether a power is punitive or self preserving is discussed in [4.250].

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Although colonial parliaments lack inherent jurisdiction to punish persons who commit a contempt of parliament, they can investigate and declare an act to be a contempt 248 and exercise penal jurisdiction if given legislative authority to do so. 249 All Australian jurisdictions have power to legislate to confer powers, privileges and penal jurisdiction on themselves. In the case of the Commonwealth and the States, the legislative authority emanates from either of two sources: a general power in their respective constitutions to legislate for the peace, welfare and good government of the colony, or a specific grant of power by the Imperial Parliament to define the powers and privileges of their Houses of Parliament. 250 The Australian Capital Territory and the Northern Territory are each empowered by Commonwealth legislation to enact laws declaring the powers, privileges and immunities of their respective Legislative Assemblies and their members and committees, provided they do not exceed the powers, privileges and immunities for the time being of the House of Representatives or of its members and committees. 251 As an alternative to assuming penal jurisdiction, it would be open to a parliament to enact legislation conferring power upon the judiciary to administer punishment for contempt of parliament. 252 Today, the contempt powers of all Australian parliaments except New South Wales are conferred legislatively and, in most cases, by reference to the powers of the House of Commons. They are discussed in the following paragraphs. 253

Commonwealth [4.240] Section 49 of the Commonwealth Constitution states that the powers, privileges and immunities of the Senate and the House of Representatives and their members and committees shall be such as are declared by the parliament. Until declared, the powers, privileges and immunities were those of the House of Commons and its members and committees as at the establishment of the Commonwealth. 254 Since s 49 imposes no limit on the nature and extent of the privileges that can be adopted by the Commonwealth Parliament, the federal parliament could provide itself with powers either more expansive or more restricted than those possessed by the House of Commons. 255 Before 1987, the Commonwealth Parliament had declared its powers, privileges and immunities only in relation 248

249 250 251 252 253

254

255

Legislative Council Privileges Committee, Parliament of New South Wales, Comments by Cardinal George Pell concerning the Human Cloning and Other Prohibited Practices Amendment Bill 2007 Report 38 (2007), [3.22]. Campbell (2003), p 2. Campbell (1962-64) 4 Sydney Law Review 212 at 213. Australian Capital Territory (Self-Government) Act 1988 (Cth), s 24; Northern Territory (Self-Government) Act 1978 (Cth), s 12. Egan v Willis & Cahill (1996) 40 NSWLR 650 at 666. For a comprehensive examination of the powers of parliaments in Australia and overseas to impose penalties for contempts see: Parliament of the Commonwealth of Australia, Senate, Committee of Privileges, Penalties for Contempt, Information Paper 95th Report (2000). This report also contains an extensive compilation of the penalties that have been imposed by these legislatures in specific situations. These included those powers of the House of Commons that were judicial in nature, despite the federal doctrine of separation of powers: R v Richards; Ex parte Fitzpatrick & Browne (1955) 92 CLR 157; (1955) 92 CLR 171; Crane v Gething (2000) 97 FCR 9 at [39]. Rann v Olsen (2000) 76 SASR 450 at 476.

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to minor matters. 256 In 1987, the Commonwealth Parliament enacted the Parliamentary Privileges Act 1987, which declares the powers, privileges and immunities of each House of parliament and their members and committees. 257 The Act confers power on the parliament to imprison a person for a fixed period not exceeding six months. The term of imprisonment can extend beyond a session, as it is not affected by the prorogation of parliament or the dissolution of a House. 258 It has been suggested that parliament’s power to commit for contempt is in breach of Australia’s obligations under Art 14 of the International Covenant on Civil and Political Rights, which provides that a person charged with a criminal offence shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. 259 Parliament is also empowered under the Act to impose fines of up to $5,000 in the case of an individual and $25,000 in the case of a corporation in respect of an offence against the House which the House has determined has been committed. 260 To date, a fine has never been imposed by either House. There is no power to fine or imprison for the same offence. Except to the extent that they are altered by the Act, the powers, privileges and immunities of the Houses and their members and committees as in force under the Constitution immediately before the commencement of the Act continue in force. 261 Accordingly, the federal Houses retain their power to investigate, to require an apology, to reprimand and admonish, and to exclude media representatives from the parliamentary gallery. 262 Despite the extensive nature of the Commonwealth Parliament’s penal powers, penalties for contempt are rarely imposed. 263

New South Wales [4.250] New South Wales is the only Australian jurisdiction that lacks comprehensive legislation specifying the powers of its parliament to deal with contempts. 264 Therefore, the New South Wales Parliament can exercise only such powers as are reasonably necessary for 256 257

258 259

260 261 262 263

264

For example, Parliamentary Papers Act 1908 (Cth); Parliamentary Proceedings Broadcasting Act 1946 (Cth); Jury Exemption Act 1965 (Cth). The Parliamentary Privileges Act 1987 (Cth) was enacted after the report of the Commonwealth Parliament Joint Select Committee on Parliamentary Privileges Final Report (1984) and after the controversial judgment in R v Murphy (1986) 5 NSWLR 18. Parliamentary Privileges Act 1987 (Cth), s 7(1), (2). A Twomey, “Reconciling Parliament’s Contempt Powers with the Constitutional Separation of Powers” (1997) 8 Public Law Review 88 at 102-103; Campbell (1999) 10 Public Law Review 196 at 198-199 and the articles referred to in n 18 therein. Parliamentary Privileges Act 1987 (Cth), s 7(5). If a penalty of imprisonment is imposed, the resolution of the House and the warrant for committal must set out particulars of the offence: s 9. See [4.210]. Parliamentary Privileges Act 1987 (Cth), s 5. Wright (ed), (6th ed, 2012), pp 763-764; Senate, Committee of Privileges, Parliament of Australia, Penalties for Contempt, Information Paper 95th Report (2000), p 4. While the Senate has often found that contempts have been committed, it has imposed a penalty for contempt on only two occasions, in 1971 (PP163/1971) and 2001 (PP 177/2001). In both cases the penalties were reprimands, and in both cases they were meted out in respect of an unauthorised publication of a draft committee report or a document provided to a committee. Many attempts have been made to define the privileges of the New South Wales Parliament but none have come to fruition: see Egan v Willis (1998) 195 CLR 424 at 509. The most recent attempt was an Exposure Draft of a Parliamentary Privileges Bill 2010 (NSW).

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the proper exercise of its functions. 265 The concept of “necessity” is not confined to powers without which it would not be possible for a parliament to function, but extends to those powers which are clearly adapted to the needs and purposes of the body in question. 266 What is necessary for the functions and purposes of the body can change over time. 267 According to Walker, the New South Wales Parliament must consider two questions when determining how to deal with a contempt. 268 First, it must be satisfied that the misconduct will continue or be repeated in such a manner as to interfere with the existence of the house or the proper exercise of its functions, otherwise it could not be said that any action is necessary. 269 Secondly, it must be satisfied that the exercise of a particular power is necessary to ensure that the misconduct does not continue or is not repeated, otherwise its exercise would be punitive, not protective or self-preserving. 270 Whether a power is protective and self-preserving, or punitive, is not self-evident. 271 It has been suggested that the power to compel the attendance of a person before the house to answer an allegation or finding of contempt, and the power to reprimand or admonish are punitive in nature, and that accordingly, such powers are not possessed by the New South Wales Parliament. 272 Undoubtedly, the power to fine and imprison will usually bear a punitive character, but there is disagreement as to whether these powers always bear such a character or whether they can ever be described as protective or self-preserving. Walker argues that in certain circumstances the imposition of a fine or imprisonment may be necessary to safeguard the existence of a House or the proper exercise of its functions, 273 whilst Campbell maintains

265

266

For a discussion of the functions of the New South Wales legislature, and how to give content to the criteria of what is reasonably necessary to the proper exercise of those functions, albeit in a context not relevant to the media, see Egan v Willis (1998) 195 CLR 424. For an application of these principles in New South Wales see: Armstrong v Budd (1969) 71 SR (NSW) 386; Egan v Willis & Cahill (1996) 40 NSWLR 650. Egan v Willis & Cahill (1996) 40 NSWLR 650 at 676.

267

Armstrong v Budd (1969) 71 SR (NSW) 386 at 401-402; Egan v Willis & Cahill (1996) 40 NSWLR 650 at 676-677.

268 269

Walker (Adelaide Law Review Research Paper No 4, 1984) p 10. See also Egan v Willis & Cahill (1996) 40 NSWLR 650, 671 where Gleeson CJ states that it is important to consider whether the conduct constituting the contempt is continuing and unresolved, or part of a single, completed act. Walker (Adelaide Law Review Research Paper No 4, 1984), p 10.

270 271

272

273

Courts have conceded that the dividing line between enforcing compliance with a valid order or removing an impediment to the functions of the House, on the one hand, and punishing non-compliance, on the other hand, is difficult to draw: Egan v Willis & Cahill (1996) 40 NSWLR 650 at 667; Egan v Willis (1998) 195 CLR 424 at 455, 504. Walker (Adelaide Law Review Research Paper No. 4, 1984), pp 11-13. But see Senate Committee of Privileges, Parliament of Australia, Penalties for Contempt, Information Paper 95th Report (2000), pp 4-5, which suggests otherwise. Walker (Adelaide Law Review Research Paper No. 4, 1984), pp 13-16. In Egan v Willis & Cahill (1996) 40 NSWLR 650 at 671, Gleeson CJ stated that “ordinarily the sanctions of fine or imprisonment are immediately recognisable as punitive in character”, but proceeded to state that the distinction is not always clear.

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that these powers “are, by any test, forms of punishment”. 274 The power to remove visitors who are disrupting proceedings in the legislative chamber in order to ensure that the misconduct does not continue or is not repeated is clearly a protective and self-preserving power. 275 Although the New South Wales Parliament primarily exercises common law powers, the Parliamentary Evidence Act 1901 (NSW) confers a degree of penal jurisdiction on its Houses. That Act empowers the parliament to summon a person who is not a member of the Legislative Council or Assembly (such as a journalist or a representative of a media organisation) to attend and give evidence before the Council, the Assembly or a committee. 276 A person who fails to attend when summoned, without just cause or reasonable excuse, can be apprehended and brought before the Council, Assembly or committee to give evidence. 277 A witness who refuses to answer a lawful question is guilty of contempt of parliament and may be committed into custody and jailed for a period not exceeding one month. 278

Queensland [4.260] The powers, rights and immunities of the Queensland Legislative Assembly and its members and committees are those defined under Queensland legislation and, until so defined, are the powers, rights and immunities of the House of Commons and its members and committees as at the establishment of the Commonwealth (1 January 1901). 279 The powers, rights and immunities of the Legislative Assembly have been defined in the Parliament of Queensland Act 2001 (Qld). 280 That Act declares that the Assembly has the same power to deal with a person for contempt as the House of Commons had at the establishment of the Commonwealth. 281 To remove doubt, it is declared that the Assembly has power to fine a person and to imprison a person in default of the payment of a fine. 282 If a person’s conduct is both a contempt of the Assembly and an offence against another Act, the Assembly may proceed against the person for the contempt or may direct the 274

275 276 277 278 279 280 281 282

Campbell (1962-64) 4 Sydney Law Review 212 at 215. The New South Wales Parliament expressed doubts about its power to fine, on the basis that a fine could be considered punitive: New South Wales Response to the United Kingdom Parliament, Joint Committee on Parliamentary Privilege, First Report, Vol 3, Written Evidence, HC 214/ 1998-9. Willis v Perry (1912) 13 CLR 592 at 598. Since its powers are purely defensive, there are limits on what the parliament can do to the person, in terms of restraining their liberty, once the person has been removed. Parliamentary Evidence Act 1901 (NSW), ss 4, 14. Parliamentary Evidence Act 1901 (NSW), ss 7, 8, 9. Parliamentary Evidence Act 1901 (NSW), s 11. It is not clear whether the New South Wales Parliament possesses a power at common law to imprison a person in an attempt to coerce him or her to give evidence. Constitution of Queensland 2001 (Qld), s 9. The reference to “rights” includes privileges. Section 6 of the Parliament of Queensland Act 2001 (Qld) provides that nothing in the Act derogates from any power, right or immunity of the Assembly or its members or committees. Parliament of Queensland Act 2001 (Qld), s 39(1). Parliament of Queensland Act 2001 (Qld), s 39(2). The fine cannot exceed that stated in the standing rules and orders: s 40(2). Currently, that amount is an amount not exceeding $2000: Standing Order 277. If the fine is not paid within a reasonable time, a person can be imprisoned until it is paid or until the end of the session of the Assembly or part of the session: s 40(3). Sections 41 – 45 deal with warrants for contempt.

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Attorney-General to prosecute the person for an offence against the other Act. 283 However, the person cannot be punished twice for the same conduct.

South Australia and Victoria [4.270] The South Australian and Victorian Parliaments and their members and committees have the same powers, privileges and immunities as those exercised by the House of Commons in England as at 24 October 1856 (in the case of South Australia) 284 and 21 July 1855 (in the case of Victoria). 285 The powers possessed by the House of Commons as at these dates have been outlined earlier. 286 Since the House of Commons can no longer impose fines, it may follow that the South Australian and Victorian Parliaments also lack this power. 287 Should the House of Commons change its privileges, there would be no effect on the Parliaments of South Australia and Victoria. 288 The South Australian and Victorian Parliaments each have power to legislate to define their privileges, immunities and powers, but have not done so. 289

Tasmania [4.280] Unlike most other jurisdictions, Tasmania does not anchor its powers and privileges to those of the House of Commons. The Parliamentary Privilege Act 1858 (Tas) confers power on the Tasmanian Parliament and its committees to order a person to attend before the House 283 284

Parliament of Queensland Act 2001 (Qld), s 47. Constitution Act 1934 (SA), s 38. See also Parliamentary Committees Act 1991 (SA), s 28 regarding the privileges, immunities and powers of committees.

285

Constitution Act 1975 (Vic), s 19(1). This rule applies only in so far as the powers and privileges of the House of Commons are not inconsistent with a Victorian Act. For a discussion of the contempt powers of the Victorian Parliament see Waugh (2005) 26 Adelaide Law Review 29 at 44-48. But note that in 2006 the New Zealand House of Representatives regarded itself as having the power to impose fines, on the basis that this power still belonged to the House of Commons on 1 January 1865, which date was, at that time, the reference point for the New Zealand parliament’s privileges, powers and immunities (see Legislature Act 1908 (NZ), s 242(1), now repealed). In April 2006, the House imposed a fine of $1,000 on Television New Zealand Ltd as punishment for its treatment of its chief executive for the evidence he gave to a parliamentary committee. This was the first fine imposed by the House in 103 years: Interim Report of the Privileges Committee, Question of privilege on the action taken by TVNZ in relation to its chief executive following evidence he gave to the Finance and Expenditure Committee (April, 2006); New Zealand House of Representatives, Parliamentary Debates, 6 April 2006. See also: D Wilson, “The Power of the New Zealand Legislature to Fine for Breach of Privilege” (2011) 26(1) Australasian Parliamentary Review 53. Given that the reference dates for South Australia and Victoria are very close to the reference date that applied to New Zealand in 2006, the same argument could be made in respect of these parliaments. The New Zealand Parliament has recently given itself statutory power to fine: Parliamentary Privilege Act 2014 (NZ), s 22. Parliament of the Commonwealth of Australia, Senate, Committee of Privileges, Penalties for Contempt, Information Paper 95th Report (2000), p 8; Memorandum by the Parliament of South Australia to United Kingdom Parliament Joint Committee on Parliamentary Privilege, First Report, HC 214/ 1998-99; Memorandum by the Parliament of Victoria to United Kingdom Parliament Joint Committee on Parliamentary Privilege First Report, HC 214/ 1998-99. Constitution Act 1934 (SA), s 9; Constitution Act 1975 (Vic), s 19(2). The South Australian parliament is limited in that it cannot legislate to confer privileges, immunities and powers on itself that exceed those held by the House of Commons as at 24 October 1856: Constitution Act 1934 (SA), s 9.

286 287

288

289

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or committee and to produce documents. 290 Also, the following contempts can be punished by imprisonment during the existing session: disobedience to an order of a House or committee to attend or to produce documents; refusing to be examined or to answer a lawful and relevant question put by a House or committee; assaulting, menacing, obstructing or insulting a member in his coming to or going from the House, or in the House, or on account of his behaviour in parliament; endeavouring to compel a member by force, insult or menace to declare himself in favour of or against any proposition or matter expected to be brought before a House; publishing or sending to a member any insulting or threatening letter on account of his behaviour in parliament; sending a challenge to fight to a member on account of his behaviour in parliament; offering or attempting to bribe a member; or creating or joining in a disturbance in, or in the immediate vicinity of, a House. 291 The powers conferred by this legislation are additional to the Parliament’s common law powers. 292 Accordingly, matters not covered by the legislation are decided by reference to the common law and the comments made in relation to the New South Wales Parliament would apply. Although the legislation does not confer power on the parliament to impose a fine, it does empower the parliament to direct the Attorney-General to prosecute certain offences in the courts, and persons convicted of an offence can be fined or imprisoned. 293

Western Australia [4.290] The Constitution Act 1889 (WA) empowers the Western Australian Parliament to legislate to define the privileges, immunities and powers of the Legislative Council, the Legislative Assembly and their members. 294 The Parliament has done so in the Parliamentary Privileges Act 1891 (WA). 295 Section 1 of this Act provides that the Western Australian Houses of Parliament and their members and committees have “the privileges, immunities and powers set out in this Act”, and, “to the extent that they are not inconsistent with this Act”, the privileges, immunities and powers of the House of Commons and its members and committees as at 1 January 1989. 296 290

291

Parliamentary Privilege Act 1858 (Tas), ss 1, 2. Select committees and joint committees with power to send for persons are empowered to examine witnesses in respect of any matter referred to them: s 2A. See also Parliamentary Privilege Act 1957 (Tas), s 2 regarding joint committees. Parliamentary Privilege Act 1858 (Tas), s 3. See also Parliamentary Privilege Act 1957 (Tas), s 3 regarding joint committees.

292 293

This is expressly stipulated in the Parliamentary Privilege Act 1858 (Tas), s 12. Parliamentary Privilege Act 1858 (Tas), s 11.

294 295 296

Constitution Act 1889 (WA), s 36. The Parliamentary Papers Act 1891 (WA) also deals with certain matters of privilege. Section 36 of the Constitution Act 1889 (WA) has only existed in its present form since its amendment by the Constitution (Parliamentary Privileges) Amendment Act 2004 (WA). Previously, s 36 contained a proviso that the privileges, immunities and powers of the Western Australian Parliament could not exceed those “for the time being” held, enjoyed and exercised by the House of Commons and its members. The same reference point was contained in s 1 of the Parliamentary Privileges Act 1891 (WA). For a discussion of the problematic nature of this reference point see: Dr H Phillips and Professor D Black, “Parliamentary Privilege in Western Australia: The House of Commons Conundrum” (2002) 17(2) Australasian Parliamentary Review 175; Legislative Assembly Procedure and Privileges Committee, Parliament of Western Australia, Parliamentary Privilege and its Linkage to the UK House of Commons, Report No 5, 2004; A Young, “Pegging Parliamentary Privilege in Western Australia” (2006) 21(2) Australasian Parliamentary Review 61.The 1 January 1989 was

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The Parliamentary Privileges Act 1891 (WA) confers a number of specific powers on the parliament. For example, parliament and its committees have power to order persons to attend and to produce documents, 297 and s 8 lists a number of specific contempts that can be punished summarily, initially by way of fine, and if the fine is not immediately paid, by imprisonment under the warrant of the Speaker or President until the fine is paid or until the end of the session. 298 These contempts are substantially the same as those listed in the Tasmanian legislation. 299 There has been some uncertainty as to whether s 8 is an exhaustive list of the punitive powers of the Western Australia Parliament, leaving it to impose only non-punitive penalties for contempts that do not appear on that list. It would seem that the Western Australian Parliament does not consider that its power to imprison is confined to the instances listed in s 8. This was demonstrated in 1995, when Brian Easton was imprisoned by the Legislative Council for seven days for failing to apologise for drawing up a misleading petition. The imprisonment was carried out under the inherent power of the Legislative Council by virtue of s 1 of the Parliamentary Privileges Act 1891 (WA). 300 The Parliament also has the power to reprimand, admonish and censure, order an apology, exclude persons from the precincts of parliament and direct the Attorney-General to initiate a prosecution for contempts that may constitute a criminal offence. 301 At one point it was thought that, as at 1989, the House of Commons no longer had the power to fine; accordingly, the Western Australian parliament would not have that power. 302 It would have to be conferred by statute. 303 However, in 2014 the Legislative Council Standing Committee on Procedure and Privileges expressed the view

297 298

299 300 301

302

chosen as the new reference point for two reasons. First, 1989 is the publication year of the 21st edition of Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament and this edition contains a detailed and authoritative record of the privileges of the House of Commons as at that date. Secondly, this particular edition predates the changes that were made to the law in the United Kingdom by the Defamation Act 1996 (UK) and the changes recommended by the UK Joint Committee inquiry into parliamentary privilege: Western Australia, Legislative Assembly, Procedure and Privileges Committee, Parliamentary Privilege and its Linkage to the UK House of Commons, Report No 5, (2004); Constitution (Parliamentary Privileges) Amendment Bill 2004 (WA), cl 7; Explanatory Memorandum to the Constitution (Parliamentary Privileges) Amendment Bill 2004, cl 7. Parliamentary Privileges Act 1891 (WA) ss 4, 5, 7. Parliamentary Privileges Act 1891 (WA), s 8. Section 8 stipulates that the power to fine must be according to the Standing Orders of either House. Legislative Assembly Standing Order 55 allows the Assembly to impose a penalty of such amount as the Assembly orders in respect of a person declared guilty of contempt for an offence defined by s 8. Standing Order 56 provides for the imposition of fines not exceeding $100 for persons declared guilty of contempt in circumstances not covered by Standing Order 55. Standing Order 95 of the Legislative Council allows the Council to impose a penalty of such amount as the Council orders in respect of a person declared guilty of contempt for an offence defined by s 8. See [4.280]. Legislative Council, Parliament of Western Australia, Select Committee into the Appropriateness of Powers and Penalties for Breaches of Parliamentary Privilege and Contempts of Parliament (2009), [7.7]. For a more complete description of the Western Australian Parliament’s powers see: Legislative Council, Parliament of Western Australia, Select Committee of Privilege on a Matter Arising in the Standing Committee on Estimates and Financial Operations (2007), Ch 2; Legislative Council, Parliament of Western Australia, Select Committee into the Appropriateness of Powers and Penalties for Breaches of Parliamentary Privilege and Contempts of Parliament (2009). Legislative Council, Parliament of Western Australia, Select Committee of Privilege on a Matter Arising in the Standing Committee on Estimates and Financial Operations (2007), [2.15], [2.17].

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that the House of Commons has retained its ancient ability to fine for contempt and that this power is therefore possessed by the Council by virtue of s 1 of the Parliamentary Privileges Act 1891 (WA). 304 Nevertheless, the Committee saw the merit in clarifying this issue and recommended that the Parliamentary Privileges Act 1891 (WA) be amended to provide that each House of the Western Australian Parliament may impose a fine for any amount it considers appropriate in relation to any breach of privilege or contempt of Parliament. 305

Australian Capital Territory [4.300] The Legislative Assembly of the Australian Capital Territory has power to make laws declaring its powers, privileges and immunities and those of its members and committees, provided they do not exceed the powers, privileges and immunities for the time being of the House of Representatives or of its members and committees. 306 To date that power has not been exercised other than in relation to the parliamentary precinct. Until it is, the Assembly has the same powers as those for the time being held by the House of Representatives and its members and committees, subject to the important qualification that the Assembly does not have power to imprison or fine a person found to be in contempt. 307 In reality this means that the Legislative Assembly can punish contempts only by way of reprimand and admonition, or by excluding a person from its precincts. The effect of linking the powers and privileges of the Legislative Assembly to those of the House of Representatives is that those aspects of the Parliamentary Privileges Act 1987 (Cth) which are concerned with the powers, immunities and privileges of the House of Representatives apply to the Legislative Assembly, with the exception of the punitive powers. 308

303

304

305

306 307 308

In 2009 it was recommended that the Parliament should have the capacity to fine in any circumstance and for any amount in respect of a breach of privilege or contempt: Legislative Council, Parliament of Western Australia, Select Committee into the Appropriateness of Powers and Penalties for Breaches of Parliamentary Privilege and Contempts of Parliament (2009). In 2010, it was recommended that Western Australia adopt an equivalent of s 7 of the Parliamentary Privileges Act 1987 (Cth), but adjustable to account for inflation: Legislative Assembly, Procedure and Privileges Committee, Parliament of Western Australia, Procedural Fairness and Powers of the House Report No 8 (2010). This view is supported by recent re-affirmations in the United Kingdom and New Zealand of the House of Commons’ power to fine: Legislative Council, Parliament of Western Australia, Standing Committee on Procedure and Privileges, Review of the Report of the Select Committee into the Appropriateness of Powers and Penalties for Breaches of Parliamentary Privilege and Contempts of Parliament (2014) at [6.30]. Moreover, the Legislative Assembly Standing Order 56 provides for the imposition of fines not exceeding $100 for persons declared guilty of contempts not listed in s 8 of the Parliamentary Privileges Act 1891 (WA). Legislative Council, Parliament of Western Australia, Standing Committee on Procedure and Privileges, Review of the Report of the Select Committee into the Appropriateness of Powers and Penalties for Breaches of Parliamentary Privilege and Contempts of Parliament, (2014) at [6.33]. See also Legislative Assembly, Parliament of Western Australia, Procedure and Privileges Committee Procedural Fairness and the Powers of the House Report No 8, (2010) Recommendation 10. Australian Capital Territory (Self-Government) Act 1988 (Cth), s 24. Australian Capital Territory (Self-Government) Act 1988 (Cth), s 24(3), (4). Australian Capital Territory, Legislative Assembly Standing Committee on Administration and Procedure, Legislative Assembly Privileges Bill (1998) Report No 9, August 2001, at [1.27]; M McRae (ed), Companion to the Standing Orders of the Legislative Assembly for the Australian Capital Territory (2009) at [2.5]-[2.12].

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Northern Territory [4.310] The Legislative Assembly of the Northern Territory has exercised its power to declare its powers and privileges in the Legislative Assembly (Powers and Privileges) Act (NT). To the extent that they are not declared by that Act, the powers and privileges of the Legislative Assembly are those for the time being possessed by the House of Representatives. 309 Many of the provisions of this Act are identical to those in the Parliamentary Privileges Act 1987 (Cth), including the power to imprison and fine. 310 The Act also empowers the Speaker to direct that a stranger be removed from, or be prohibited from entering, the precincts of the Assembly. 311

Actions that can constitute contempt of parliament [4.320] It has already been explained that contempt of parliament is an uncertain and imprecise concept, and that it is difficult to predict whether particular acts or omissions will be regarded as contemptuous. Part of the problem is that it is the effect of an act or omission that constitutes the contempt, not the act or omission itself. 312 While Tasmania and Western Australia have legislation which contains a specific list of conduct that may be punished as a contempt, 313 and while Queensland has legislation, 314 and the ACT has Standing Orders, 315 which contain a list of examples of contempts, as does a Senate resolution passed in 1988, 316 to date, no Australian parliament has laid down an exhaustive codification of the specific actions that will constitute contempt. While codification would provide clarity and precision, it would narrow the reach of the contempt power and frustrate a parliament’s ability to find that new and unforeseen conduct – for example, a computer hacker who compromised

309 310 311 312

Legislative Assembly (Powers and Privileges) Act (NT), s 4. Legislative Assembly (Powers and Privileges) Act (NT), s 25. Legislative Assembly (Powers and Privileges) Act (NT), s 16(2). Evans and Laing (eds), (13th ed, 2012), pp 86-87.

313

See [4.280], [4.290].

314

Parliament of Queensland Act 2001 (Qld), ss 37; 58(3). Standing Order 266 of the Queensland Legislative Assembly also contains an extensive list of actions that the House may treat as a contempt.

315

Australian Capital Territory, Legislative Assembly, Standing Order 277 identifies a list of matters that the Legislative Assembly has declared that it is likely to treat as a contempt, without derogating from its power to declare that a particular act constitutes a contempt. Commonwealth Parliament, Parliamentary Privilege, Resolutions Agreed to by the Senate on 25 February 1988, Resolution 6 Matters Constituting Contempts. Resolution 6 is expressed not to derogate from the Senate’s power to determine that particular acts constitute contempts. The resolutions have not been adopted by the House of Representatives: Evans and Laing (eds), (13th ed, 2012), p 40.

316

[4.320] 201

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parliament’s computer network 317 or the hacking of a member’s mobile phone 318 or filming of a member’s papers in the parliamentary chamber 319 – constitutes a contempt. 320 Accordingly, most parliaments regard themselves as having the power to determine that any particular act constitutes a contempt. 321 Notwithstanding this uncertainty, contempts have been arranged into a number of categories. 322 These categories are not exhaustive; they are simply a collation of the conduct that has been found by parliaments to constitute contempt. Those categories of contempt that are of most relevance to the media are discussed in the following paragraphs. 323

Misconduct [4.330] A variety of actions are broadly collected under the category of contempt known as “misconduct”. Two are relevant to the media. 324 The first is disorderly or disrespectful conduct in the presence of a House or a committee. Thus a journalist who interrupts or disturbs the proceedings of a house or a committee would be guilty of this form of contempt. 325 The second is disobedience to the rules or orders of a House or a committee. As far as the media are concerned, conduct which would constitute this form of misconduct includes a refusal by a journalist to attend before a House or committee to answer questions or produce documents, the giving of false evidence by a journalist during an examination by a house or a committee, a refusal to withdraw from a house or committee when ordered to do so and failure to comply with an order to publish an apology. 326

317

318 319 320 321

322 323 324 325

326

Legislative Assembly Members’ Ethics and Parliamentary Privileges Committee, Parliament of Queensland, First Report on the Powers, Rights and Immunities of the Legislative Assembly, its Committees and Members, Report 26 (1999), [4.4.2]. House of Commons Standards and Privileges Committee, United Kingdom Parliament, Privilege: Hacking of Members’ Mobile Phones 14th Report (2011). Hon Fiona Simpson, Speaker of the Legislative Assembly, Parliament of Queensland, Report to Members of Parliament Regarding Breach of Media Access Conditions, 24 October 2012. Joint Select Committee on Parliamentary Privilege, Parliament of Australia, Final Report, October 1984, p 81. See, eg: Legislative Council, Parliament of Western Australia, Standing Order 94. Without derogating from its power to determine that particular acts constitute contempts, Sch 4 of the Standing Orders of the Legislative Council declares, as a matter of general guidance, that breaches of specific acts, and attempts or conspiracies to do the prohibited acts, may be treated by the Council as contempts. There follows a list of 14 enumerated acts. See, eg, Jack (ed), (24th ed, 2011), ch 15; Wright (ed), (6th ed, 2012), pp 749-760; Walker (Adelaide Law Review Research Paper No 4, 1984), pp 74-106. Breach of the privilege of free speech is a contempt, but it is usually left to the courts to protect this immunity “in the processes of the ordinary law”: Evans and Laing (eds), (13th ed, 2012), p 41. For a full list see Wright (ed), (6th ed, 2012), pp 750-753. Misconduct by members of the Press Gallery might result in withdrawal of their Press Gallery passes. See, for example: VP 1970-72/465, p 467; HR Deb (9.3.71), pp 687, 689-92, 739 discussed in IC Harris (ed), House of Representatives Practice (5th ed, 2005), pp 112-113. Walker (Adelaide Law Review Research Paper No 4, 1984), pp 76-82.

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Example

The Kalgoorlie Sun Case 1904 [4.340] The Kalgoorlie Sun Case 1904, Western Australia, Parliamentary Debates, Legislative Assembly, 1 November 1904, pp 944-945; 3 November 1904, p 1063; 8 November 1904, p 1100; 10 November 1904, p 1170, 8 December 1904, pp 1714-1725 327 In 1904, Drayton, the editor of the Kalgoorlie Sun, was fined by the Western Australian Legislative Assembly for refusing to be sworn in and to answer questions put to him by a Select Committee concerning the forfeiture and subsequent reinstatement of the “Empress of Coolgardie” gold mining lease. When the editor failed to immediately pay the fine he was imprisoned.

[4.350] In some jurisdictions, legislation specifically provides that such conduct amounts to a contempt of parliament. 328 It may also amount to a criminal offence. 329 This form of contempt proceeds on the assumption that the House or committee concerned has the power to summon a person to attend before the House and answer questions or produce documents. Such powers are probably inherent, since the power to conduct

327

The case is discussed in H Goodwin, A Stewart and M Thomas, “Imprisonment for Contempt of the Western Australian Parliament” (1995) 25 Western Australian Law Review 187.

328

Parliamentary Evidence Act 1901 (NSW), s 11; Parliament of Queensland Act 2001 (Qld), s 37 Examples 6, 7, 8; Parliamentary Privilege Act 1858 (Tas), s 3(a), (b), (g); Parliamentary Privileges Act 1891 (WA), s 8(a), (b), (g). See also Commonwealth Parliament, Parliamentary Privilege, Resolutions Agreed to by the Senate on 25 February 1988, Resolution 6(5) Disturbance of the Senate, 6(8) Disobedience of Orders, 6(12) Offences by Witnesses.

329

See, for example: Parliamentary Evidence Act 1901 (NSW), s 13; Legislative Assembly (Powers and Privileges) Act (NT), s 21; Criminal Code (Qld), ss 56, 57, 58; Criminal Code (WA), ss 56, 57, 59. Between 2006 and 2012 these forms of misconduct (namely, disturbance, giving false evidence and refusal of witnesses to attend or give evidence) were removed from the Queensland Criminal Code because it was thought to be confusing to have two contradictory processes operating in respect of the same conduct and that parliament, not the courts, should deal with such contempts. These forms of conduct were reinstated as offences by the Criminal Law (False Evidence Before Parliament) Amendment Act 2012 (Qld) in fulfilment of an election promise. This Act also inserted s 53 into the Criminal Code, which provides that, despite s 8 of the Parliament of Queensland Act 2001, evidence of anything said or done during proceedings in the Assembly may be given in a proceeding against a person for an offence under this chapter to the extent necessary to prosecute the person for the offence. The Legislative Assembly retains the right to decide whether particular conduct should be dealt with as contempt of Parliament or whether it should be prosecuted as an offence: Explanatory Memorandum to the Criminal Law (False Evidence Before Parliament) Amendment Bill 2012 (Qld).

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investigations and inquiries is essential for a parliament, 330 but in many cases they are also conferred by legislation or contained in a parliament’s standing orders. 331 A journalist might refuse to answer a relevant question put by a House or committee on the basis that the answer would reveal the identity of a confidential source of information. Journalists who are members of the Media Entertainment and Arts Alliance are bound by a Code of Ethics which obliges them keep confidences in all circumstances. 332 It is clear that in the absence of an evidentiary privilege conferred by statute, journalists do not have a lawful excuse for refusing to answer a relevant question in a court of law. 333 In the same way, parliaments are under no obligation to respect a journalist’s commitment to source confidentiality. However, a House or committee may adopt a practice of not forcing journalists to disclose their sources 334 or may elect to determine on a case by case basis whether the obligation of confidence should be respected or whether the journalist should be compelled to reveal the source or be penalised for refusing to do so. 335 Example

The Lampathakis Case 2008 [4.360] The Lampathakis Case 2008 Paul Lampathakis, a journalist with Western Australian newspaper The Sunday Times, refused to reveal the source of leaked cabinet information to a select parliamentary committee that was established to investigate the circumstances surrounding a police raid on the newspaper. 336 Although Lampathakis was initially threatened with jail for refusing to answer the question, the committee ultimately determined that since his failure to reveal the source did not obstruct, impede or cause substantial interference with the functioning of the committee, the refusal should not be treated as a

330

331

332

Fenton v Hampton (1858) 11 Moo PC 347; 14 ER 727; Egan v Willis & Cahill (1996) 40 NSWLR 650. A discussion of possible limits on the matters into which a parliament may legitimately inquire is beyond the scope of this chapter, but see: Evans and Laing (eds), (13th ed, 2012), pp 75-79. Parliamentary Evidence Act 1901 (NSW), s 4; Legislative Assembly (Powers and Privileges) Act (NT), s 18; Parliament of Queensland Act 2001 (Qld), ss 25 – 35; Parliamentary Privilege Act 1858 (Tas), ss 1, 2, 2A; Parliamentary Committees Act 2003 (Vic), s 28; Parliamentary Privileges Act 1891 (WA), ss 4 – 7. The Code of Ethics is reproduced in [14.1590].

333

See [7.510], [7.530]-[7.540].

334

This practice is adopted by the Senate Committee of Privileges: Senate, Committee of Privileges, Parliament of Australia, Possible Unauthorised Disclosure of Report of Environment, Communications, Information Technology and the Arts Legislation Committee, 112th Report (February 2003), [1.33]. The latter approach is taken by the House of Representatives: House of Representatives, Committee of Privileges PP 135/ 1987, [34]-[35].

335 336

The police had raided the offices of the newspaper looking for the source of the leaked information, which was to the effect that the Government was proposing to spend $16 million of taxpayers’ dollars on a re-election advertising campaign. The disclosure of such information was a criminal offence, hence the police involvement.

204 [4.360]

Chapter 4 – Reporting Parliament and Elections The Lampathakis Case 2008 cont. contempt. 337 The committee formally recommended that he be excused from answering the question under s 7 of the Parliamentary Privileges Act 1891 (WA). 338

Communications reflecting on a house as an entity; communications reflecting on a member; communications reflecting on the presiding officer [4.370] Communications reflecting on a House as an entity encompass defamatory communications in relation to a House, and other insults and indignities which, although not legally defamatory, reflect on the character or proceedings of a House. These communications have been treated as contempts because they diminish the respect due to parliament as an institution and lower its authority, thereby obstructing it in the performance of its functions. 339 This type of contempt is analogous to scandalising the court. As this form of contempt always involves the communication of information, it is most likely to be committed by the media. Example

The Sun Case 1951 [4.380] The Sun Case 1951 VP 1951-53/ 171 340 An article in the Sun newspaper on 2 October 1951 stated that “Within minutes of the Budget details being announced and members learning that whisky, other spirits, cigarettes and shaving gear were to be dearer, there was a concerted onslaught on the parliamentary bar” and “the mass movement from the chambers of the House of Representatives and the Senate to the bar is a further manifestation of the manner in which members would prefer to see Parliament House function”. It was held that the nub of the article was that members en masse neglected the business of the House, forsook their parliamentary duties and participated in an “inglorious and undignified rush” to the liquor bar. The article was found to be a contempt, as the statements, whilst not wholly untrue, were grossly exaggerated, erroneous and conveyed a false impression. The article also stated that “Just as a man cannot be a hero to his valet, the Parliamentarians are no heroes to a staff that sees those MPs sweat and toil for every privilege and concession that is obtainable and then go into the Chamber and denounce the evils of privilege and concession”. This aspect of the article was also found to be contemptuous, because it implied that members carry out their duties in a completely

337 338

Legislative Council, Parliament of Western Australia, Select Committee into the Police Raid on the Sunday Times (2008), [14.13]. Today, the matter would be dealt with in accordance with the Legislative Assembly, Parliament of Western Australia, Standing Order 314 or the Legislative Council, Parliament of Western Australia, Standing Order 201, as the case may be.

339 340

Evans and Laing (eds), (13th ed, 2012), p 83. A report of the House of Representatives Committee of Privileges was presented to the House but not printed.

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Australian Media Law The Sun Case 1951 cont. hypocritical manner, a serious reflection on the character of members individually and on the manner in which the business of the House is transacted.

[4.390] This form of contempt also encompasses defamatory imputations against a particular member, and communications which, though not legally defamatory, reflect on a member’s character or conduct as a member. 341 Comments which defame or reflect on unnamed members of a House in relation to their service to the House are regarded as reflections on the House, not on the member. 342 Examples of this form of contempt include assertions that a member did not act impartially on a committee or that a member acted corruptly in discharging his or her duties and advertisements which suggest that a certain member has endorsed a particular product. 343 Aspersions on members which are unrelated to their conduct as members cannot be contemptuous. It has been argued that members of parliament, who are accustomed to public criticism, are not in fact affected in the performance of their functions by defamatory or insulting reflections, and that accordingly, this form of contempt is an unacceptable interference with freedom of speech. 344 In any event, members who are the subject of defamatory comments can pursue adequate civil remedies in the courts, and need not resort to contempt of parliament to obtain redress. 345 Others maintain that whilst there is substance in these arguments, there are certain reflections which could obstruct or impede a House in the performance of its functions and which should therefore be dealt with by the House as a contempt, rather than left to civil action for correction. Reflections on the character or actions of the presiding officer of a House or on his or her control of the business of a House is one such scenario. 346 The character and actions of the presiding officer may be legitimately criticised only on a substantive motion. However, contemptuous reflections on this officer are often made by a member in parliament otherwise than on a substantive motion, or in a press release, which is then given publicity in the media. The basis for treating such reflections as a contempt is respect for the institution of Parliament. Since the Chair is the embodiment of the power, authority and integrity of the Parliament, to reflect on the presiding officer may seriously affect the public perception of the work of parliament. The Queensland Parliament has been particularly rigorous in dealing with reflections on the Speaker as contempts. 347 Indeed, the 341 342

Jack (ed), (24th ed, 2011), p 263. Jack (ed), (24th ed, 2011), p 258.

343

See, for example, House of Representatives Committee of Privileges, PP 210/1964-66 & VP 1964-66/347, p 386; House of Representatives Committee of Privileges, PP 297/1981 & VP 1980-83/605, p 805. In both these cases, the advertisement suggested that a member of parliament had endorsed a certain make of motor car.

344 345

Walker (Adelaide Law Review Research Paper No 4, 1984), pp 86-87. United Kingdom, Parliamentary Privilege, Cmd 8318 (2012) at [326]-[327].

346

H Evans, “Parliamentary Privilege: Changes to the Law at Federal Level” (1988) 11 University of New South Wales Law Journal 31 at 42-43. See, eg, Select Committee of Privileges, Parliament of Queensland, Matter referred by the Legislative Assembly on 7 June 1990 (1990); Members’ Ethics and Parliamentary Privileges Committee, Parliament of

347

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Queensland Legislative Assembly Standing Order 266(23) lists as an example of a contempt, “commenting or reflecting on the decisions or actions of the Chair, whether relating to actions inside the House or the character of the Chair in general” except by a substantive motion of censure. Although in theory this form of contempt has particular relevance to the media, its practical significance to the media is actually very limited, since, apart from reflections on a presiding officer, it is rarely invoked by parliaments nowadays. In fact, this form of contempt has been abolished at Commonwealth level. Since 1987, words or acts cannot be treated as an offence against the Commonwealth Houses of Parliament by reason only that they are defamatory or critical of a House, committee or member unless they are spoken or done in the presence of a House or a committee. 348 This type of contempt does not appear in the list of punishable contempts in the Tasmanian or Western Australian legislation. 349 However, in Western Australia, s 14 of the Parliamentary Privileges Act 1891 (WA) declares that it is a crime for a non-member to publish false or scandalous libel of any member touching his conduct as a member and provides that it “shall be lawful for either House to direct the Attorney General to prosecute before the Supreme Court any such person committing any such crime”.

Attempting by improper means to influence a member in his or her parliamentary conduct; improperly interfering with the free performance of a member of his or her duties as a member [4.400] The media frequently attempt to influence members of parliament in their parliamentary conduct. For example, the media might run a campaign with the express purpose of influencing members to save a national park from commercial development, take certain action in relation to climate change, abolish a particular tax, legalise euthanasia, review their treatment of refugees or refuse to commit troops to a war. Attempting to influence members in their parliamentary conduct is not, per se, contemptuous. Attempts to influence members constitute contempts only if they are made by “improper means”, a phrase fraught with imprecision. The most obvious example of an attempt to influence by improper means is Queensland, Matter Referred by the Speaker on 31 July 2002 Relating to Improper Reflections by a Member About the Impartiality of the Speaker, Report No 54 (2002); Members’ Ethics and Parliamentary Privileges Committee, Parliament of Queensland, Matter of Privilege Referred by the Speaker on 9 November 2005 Relating to an Alleged Threat Against a Member and Alleged Reflections on the Chair Report No 71 (2005); Members’ Ethics and Parliamentary Privileges Committee, Parliament of Queensland, Matter of Privilege Referred by the Deputy Speaker on 28 February 2008 Relating to Alleged Reflections on the Speaker, Report 90 (2008); Ethics Committee, Parliament of Queensland, Matter of Privilege Referred by the Speaker on 28 November 2012 Relating to an Alleged Reflection on the Chair, Report 133 (2012). Most of these instances have consisted of attacks on the impartiality of the Speaker by members of parliament both in the media and in the House. 348

349

Parliamentary Privileges Act 1987 (Cth), s 6(2). The purpose of the exception is to ensure that a house or committee can take appropriate action where a witness or a member of the public makes insulting or offensive remarks at a sitting of a house or committee: Explanatory Memorandum to the Parliamentary Privileges Bill 1987 (Cth), cl 6. These lists only refer to insulting a member: Parliamentary Privilege Act 1858 (Tas), s 3 (c); Parliamentary Privileges Act 1891 (WA), s 8(c). This form of contempt is also absent from the list in s 37 of the Parliament of Queensland Act 2001 (Qld).

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the offering of a bribe to a member to act in a certain way. In some jurisdictions, bribery of a member is expressly declared to be a contempt punishable by the parliament. 350 In most jurisdictions it is also a criminal offence. 351 Intimidation, the making of threats 352 or the holding out of some benefit or inducement also constitute attempts to influence by improper means. When it is alleged that threats have been made by the media, the nature of the threats must be considered in the context of the robust exchange which takes place between the media and politicians in a democratic society. 353 Example

The Bankstown Observer case 1955 [4.410] The Bankstown Observer Case 1955 On 28 April 1955 the Bankstown Observer, a weekly suburban newspaper, published an article headed “MHR and Immigration Racket”. The article stated that “the anti-Evatt Group in NSW are making charges that deeply concern the residents of this area. They claim that Mr CA Morgan, MHR, who is supporting Dr Evatt, is, or was, mixed up in what can only be described as an Immigration Racket”. The article proceeded to allege that Morgan, along with two other men, were procuring entry into Australia of aliens at a fee of 20 pounds per person. It concluded: “Whether or not these charges are true, ‘The Observer’ has no way of knowing.” The matter was referred to the House of Representatives Privileges Committee. Having found no evidence of improper conduct by Morgan in his capacity as a member of parliament, the Committee concluded that Messrs Fitzpatrick and Browne (respectively the proprietor and a journalist of the Bankstown Observer), were guilty of contempt. 354 The contempt consisted of publishing articles intended to influence and intimidate a member in his conduct in the house, and in deliberately attempting to impute corrupt conduct as a member against him for the express purpose of discrediting and silencing

350

351 352

353 354

See, for example, Parliamentary Privilege Act 1858 (Tas), s 3(f); Parliamentary Privileges Act 1891 (WA), s 8(f). See also Parliament of Queensland Act 2001 (Qld), s 37 Example 5; Commonwealth Parliament, Parliamentary Privilege, Resolutions Agreed to by the Senate on 25 February 1988, Resolution 6(2) Improper Influence of Senators. See, for example: Criminal Code (Cth), ss 141.1, 142.1; Crimes Act 1900 (NSW), Pt 4A; Criminal Code (Qld), s 60; Criminal Code (Tas), s 72. A threat of adverse action – such as legal proceedings – against a member of the public can be regarded as an improper means of influencing a member of parliament if it affects or prevents a member from carrying out their duties as a member. However, the link between the threat and the actual or anticipated outcome of influencing or impairing the member’s duties must be a close one. This will be the case if the threat prevents a constituent from providing a member with relevant information, thereby interfering with the member’s duties: Legislative Assembly, Privileges Committee, Parliament of Victoria, Report on Complaint by the Member for Preston (2006). House of Representatives, Standing Committee of Privileges, Parliament of Australia, Report Concerning the Alleged Threats to Mr Latham MP and Mr Murphy MP (2005). Browne admitted to the Committee that he did not possess proof of the charges made in the article. Fitzpatrick also denied having personal evidence of the charges.

208 [4.410]

Chapter 4 – Reporting Parliament and Elections The Bankstown Observer case 1955 cont. him in the parliament. 355 The House of Representatives adopted the report of the Committee and resolved that Fitzpatrick and Browne be imprisoned for three months for the contempt. Fitzpatrick and Browne subsequently applied to the High Court for writs of habeas corpus. Their application was refused. 356 An appeal to the Privy Council was unsuccessful. 357

[4.420] Even where a journalist or media organisation has not improperly attempted to influence a member, the following cases demonstrate that a person might use the media as a means of disseminating improper threats, exerting influence or imposing pressure. Example

The “New Vision for Timber Industry” Case [4.430] The “New Vision for Timber Industry” Case, House of Representatives Standing Committee of Privileges, Parliament of Australia, Report on Allegations of Documents Fraudulently and Inaccurately Written and Issued in a Member’s Name (2007) On five occasions in 2005 and 2006, Ms Harriett Swift deliberately misrepresented the Hon Gary Nairn MP, the member for Eden-Monaro, by producing and distributing a statement to media outlets titled “New Vision for Timber Industry” and by sending a letter to a recipient of government funding in his electorate. Ms Swift admitted fabricating Mr Nairn’s letterhead and signature to make it appear that these documents were prepared and distributed by him. The Committee found Ms Swift guilty of a contempt of the House of Representatives on the basis that her conduct amounted to an improper interference with Mr Nairn’s free performance of his duties as a member, as the evidence from Mr Nairn showed that there was interference with his communication with his constituents and such interference could be expected as a likely outcome of such misuse. The Committee also noted that even if Mr Nairn had not been able to show that his relationship with his constituents had been interfered with, “the misuse of a Member’s letterhead and signature, regardless of the specific intentions, would either amount to, or be likely to amount to, an interference with a Member’s ability to

355 356 357

In evidence given to the Committee, Fitzpatrick admitted that the intention of the newspaper was to dissuade the member from raising certain matters in the House. R v Richards; Ex parte Fitzpatrick & Browne (1955) 92 CLR 157. R v Richards; Ex parte Fitzpatrick & Browne (1955) 92 CLR 171. For a discussion of this case see: H Evans, “Fitzpatrick and Browne: Imprisonment by a House of Parliament” in HP Lee and G Winterton (eds), Australian Constitutional Landmarks (2003).

[4.430] 209

Australian Media Law The ‘New Vision for Timber Industry’ Case cont. communicate freely and honestly with his or her constituents”. On the Committee’s recommendation, Ms Swift was reprimanded by the House for her conduct.

Example

Comments by Cardinal George Pell [4.440] Comments by Cardinal George Pell, New South Wales, Legislative Council, Privileges Committee, Comments by Cardinal George Pell concerning the Human Cloning and Other Prohibited Practices Amendment Bill 2007 Report 38 (2007) In New South Wales, Government and Opposition Members were allowed a conscience vote on the Human Cloning and Other Prohibited Practices Amendment Bill 2007. While the Bill was being debated in the Legislative Assembly, the Catholic Archbishop of Sydney, Cardinal George Pell, made comments to the media at a news conference in which he spoke of “possible consequences” for Catholic members regarding their place in the life of the church if they supported the Bill. The New South Wales Parliament referred the matter to the Legislative Council Privileges Committee to inquire whether the Cardinal’s comments constituted a contempt of parliament on the basis that they threatened, intimidated or improperly influenced Catholic members of parliament in relation to their parliamentary duties. Ultimately, no contempt was found, the Privileges Committee being satisfied that: the comments were in the nature of general observations rather than specific threats; statements made by members in the Legislative Council indicated that the comments had not compromised or impeded them in the performance of their functions; the fact that the Bill passed with a sizeable majority was indicative of the fact that members had voted as they saw fit; and there were no complaints following the enactment of the Bill that members had suffered any penalty or sanction as a result of their vote.

Communicating false or perverted reports of debates or proceedings of a House or committee [4.450] Inaccurate reports of debates or proceedings of a House or a committee can constitute a contempt of parliament. 358

358

This is specifically provided for in Commonwealth Parliament, Parliamentary Privilege, Resolutions Agreed to by the Senate on 25 February 1988, Resolution 6(7) False Reports of Proceedings.

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Example

The Sydney Daily Telegraph Case 1971 [4.460] The Sydney Daily Telegraph Case 1971 House of Representatives Committee of Privileges, PP 242/ 1971; VP 1970-1972 pp 689, 901-902 On 27 August 1971, an article in the Sydney Daily Telegraph published under the heading “Count Out Shuts Parlt” reported that “(a) group of ALP Parliamentarians walked out of the Chamber when the quorum was called, well knowing that their actions could cause the collapse of the House of Representatives”. As the accuracy of the allegations could not be substantiated, the article was found to be contemptuous.

[4.470] Walker explains that the right of parliaments to control the publication of their debates and proceedings provides the basis for findings of contempt in relation to debates or proceedings which have been reported in a false or perverted manner. 359 Campbell has noted that a more effective way for a parliament to express its displeasure at a media report of its proceedings is to withdraw the facilities extended to the press. 360

The premature or unauthorised disclosure or publication of a committee’s proceedings, evidence and reports [4.480] It can be a contempt of parliament to disclose or publish a report or draft report of a committee before it is tabled in the house, without the consent of the house or the committee. The rule against premature or unauthorised disclosure and publication also prohibits the premature or unauthorised communication of documents presented to a committee, evidence given to a committee, 361 submissions made to a committee, the private deliberations of a committee and minutes of committee proceedings before they are reported to the relevant House or their release or publication is otherwise ordered or authorised. 362 The unauthorised disclosure or publication of evidence taken by a committee in camera is viewed as the most serious example of this type of contempt, because in camera evidence is the most sensitive information that a committee can receive. 363 Contempts that consist of unauthorised disclosure have significant practical relevance to the media, since disclosure is most likely to have been made in order that the information might be published in the media. 359 360 361

362

363

Walker (Adelaide Law Review Research Paper No 4, 1984), pp 88-89. Campbell (2000) 5 Media and Arts Law Review 67 at 78. In some jurisdictions, Houses permit evidence given to committees in public hearings to be published immediately, before it has been reported to the House. See, for example, Victorian Legislative Council, Standing Order 23.22; Victorian Legislative Assembly, Standing Order 217. See, for example, Commonwealth Parliament, Parliamentary Privilege, Resolutions Agreed to by the Senate on 25 February 1988, Resolution 6(16) Unauthorised Disclosure of Evidence etc. Houses often exercise their power to authorise disclosure or publication of committee reports and evidence in their standing orders. See, for example, House of Representatives Standing Order 242. House of Representatives Standing Committee of Privileges, Parliament of Australia, Report Concerning the Possible Unauthorised Disclosure of In Camera Evidence to the Defence Sub-Committee of the Joint Standing Committee on Foreign Affairs, Defence and Trade (June 2001), [1.44], [1.52].

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There are a number of reasons why unauthorised disclosure and publication is regarded as a contempt. First, the unauthorised disclosure of evidence damages the ability of committees to gather evidence, especially in relation to sensitive matters. If committee members assert a right to be informed of sensitive commercial, political or legal information but cannot confidently assure witnesses that this information will be held in confidence, the credibility and integrity of the committee system is diminished. This may cause actual or prospective harm to the witness in question. It may also have repercussions for the committee system in general, since it may make prospective witnesses reluctant to come forward and give evidence in camera. The premature disclosure of evidence, draft reports or committee deliberations can also diminish the trust and openness which should exist among committee members, especially where the leak has been made by a committee member. This makes the process of reaching agreement within a committee more difficult. 364 Further, evidence given to a committee might, if prematurely leaked, prejudice forthcoming legal proceedings that are being pursued by a government department, perhaps causing them to abort. 365 It may also damage the relationship between a committee and a government department if that department had co-operated with the committee. Finally, it reflects the notion that the House is entitled to the first advice of the conclusions of its committees. 366 At federal level, it is also a statutory offence to disclose or publish evidence taken in camera by the Senate or House of Representatives or a committee thereof, if the publication takes place before the House or committee has published or authorised publication of the evidence. 367 A similar provision appears in Northern Territory legislation. 368 The reason for creating a criminal offence in respect of such disclosures is the risk of harm to individuals who give evidence and information to Houses and their committees. 369 While there are differences between the Australian parliaments concerning the way in which they deal with unauthorised disclosures, 370 a number of issues commonly arise out of this form of contempt. First, although this form of contempt is frequently committed, it is notoriously difficult to identify the person who initially disclosed the report, deliberations or evidence. In almost all cases, the information will have been leaked by a member of 364

365

366 367 368 369 370

The Senate Committee of Privileges has noted that committees are usually made up of members from various political parties, and that, in an attempt to reach a productive committee outcome, members might be prepared to canvass views that are inimical to their own political interests. However, their willingness to do so will be reduced if they fear that their attempts at compromise might subsequently be used against them: Senate Committee of Privileges, Parliament of Australia, Possible Unauthorised Disclosure of Report of Environment, Communications, Information Technology and the Arts Legislation Committee, 112th Report (February, 2003), [1.37]. House of Representatives Standing Committee of Privileges, Parliament of Australia, Report Concerning the Possible Unauthorised Disclosure of In Camera Evidence to the Defence Sub-Committee of the Joint Standing Committee on Foreign Affairs, Defence and Trade (June 2001), [1.2], [1.37], [1.40]. D McGee, Parliamentary Practice in New Zealand (3rd ed, 2005), p 650. Parliamentary Privileges Act 1987 (Cth), s 13. Legislative Assembly (Powers and Privileges) Act (NT), s 22. Senate Committee of Privileges, Parliament of Australia, Parliamentary Privilege – Unauthorised Disclosure of Committee Proceedings, 122nd Report (2005), [1.6]. The various practices are exhaustively reviewed in: Senate Committee of Privileges, Parliament of Australia, Parliamentary Privilege – Unauthorised Disclosure of Committee Proceedings 122nd Report (2005), Ch 2.

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parliament or a parliamentary staff member. 371 When questioned, they will simply deny any involvement. Often, the only real prospect of identifying a source is to seek that information from the journalist who published the article. However, the parliament may opt not to pursue the journalist for that information, especially if the journalist is likely to claim source confidentiality under the Code of Ethics, despite the fact that parliaments are not bound by the code. 372 In the words of the Queensland Members’ Ethics and Parliamentary Privileges Committee: History has demonstrated that journalists are unlikely to reveal their sources and that the media are likely to rally behind any journalist called to reveal their sources. The journalist involved becomes a martyr of the fourth estate, whilst an opportunity is provided to the media to publicly decry the powers of the Legislative Assembly. Thus, what is likely to be achieved is a conflict between the (privileges committee dealing with the issue) and the media. The source is unlikely to be revealed. Conflict and a protracted investigation are likely to be the only outcomes. 373

The fact that a journalist gained the information from a third party and was not responsible for the initial leak does not absolve him or her from responsibility for publishing the information. 374 Thus the journalist, editor or publisher may be held to be in contempt of parliament even where the source of the leak remains undiscovered and even where the journalist was unaware of the confidentiality of the information disclosed. 375 However, the Houses differ in their preparedness to proceed against the media for contempt where the source of the leak is unknown. For example, the Senate used to make no attempt to discover who had given the offending material to the media. The editor and publisher of the newspaper were simply regarded as culpable, akin to receivers of stolen goods, 376 and the offence

371

372

373

374

375

376

Some houses have issued guidelines to their committees in an attempt to reduce the risk of a deliberate leak or inadvertent release of information. For example, the House of Representatives Standing Committee on Privileges has recommended that a number of standard practical procedures be adopted by its committees in the handling of in camera transcripts in order to reduce the risk of a leak: House of Representatives Committee of Privileges, Parliament of Australia, Report Concerning the Possible Unauthorised Disclosure of In Camera Evidence to the Defence Sub-Committee of the Joint Standing Committee on Foreign Affairs, Defence and Trade (June 2001), [1.53]. Senate Committee of Privileges, Parliament of Australia, Parliamentary Privilege: Precedents, procedures and practice in the Australian Senate 1966-2005, 125th report (2005), [4.51], [4.59]. But see Australian Press Council, Annual Report No 29, 30 June 2005, p 8. Legislative Assembly Members’ Ethics and Parliamentary Privileges Committee, Parliament of Queensland, Report on a Matter of Privilege – Unauthorised Release of Correspondence between a Committee and Ministers Report No 42 (2000). Legislative Council Standing Committee on Procedure and Privileges, Parliament of Western Australia, Referral of a Matter of Privilege from the Select Committee of Privilege on a Matter Arising in the Standing Committee of Estimates and Financial Operations Report 14 (2007), [5.15]; House of Representatives, Privileges Committee, Report Concerning the Possible Unauthorised Disclosure of the Internal Proceedings of the Committee (2012) at [1.19]. Senate Committee of Privileges, Parliament of Australia, Possible Unauthorised Disclosure of a Submission to the Parliamentary Joint Committee on Corporations and Securities, 99th report (August 2001), [48]-[55]; Legislative Council Select Committee of Privilege, Parliament of Western Australia, Matter Arising in the Standing Committee of Estimates and Financial Operations (2007), [1.30]. Senate Committee of Privileges, Parliament of Australia, Parliamentary Privilege – Unauthorised Disclosure of Committee Proceedings, 122nd Report (June 2005), [1.11].

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treated as one of strict liability. 377 While remaining of the view that the receiver of the information is culpable, since 1984, the Senate Committee of Privileges has adopted the practice of not making a finding of contempt against the publisher of the improperly disclosed material without also attempting to find and punish the person who disclosed the information, notwithstanding the low probability of successfully doing so. 378 Secondly, in jurisdictions where conduct cannot amount to a contempt unless it interferes with the workings of Parliament, 379 the premature disclosure and communication of a committee’s reports, proceedings or evidence must be found to have impeded the work of a house or committee before it can amount to a contempt. Even in jurisdictions which lack this statutory threshold requirement, it is unlikely that a contempt would be found in the absence of such a finding. Some Houses, including the Senate, require the committee affected by the unauthorised disclosure to reach its own conclusion as to whether the disclosure obstructed it in the performance of its duties before the matter can be referred to the Committee of Privileges. The one exception is the publication of in camera evidence. Most privileges committees take the view that the unauthorised disclosure and publication of in camera evidence is so intrinsically obstructive to the work and operations of a committee that a referral and finding of contempt is virtually automatic. In 2005, the Senate Committee of Privileges recommended that the approach to unauthorised disclosures be liberalised in certain respects. 380 Firstly, the Committee recommended that as much committee material as possible should be made publicly available, thereby reducing the amount of material the disclosure of which is unauthorised. 381 Secondly, the Committee recommended that there be a stricter filtering of unauthorised disclosure cases involving submissions, deliberations, correspondence, minutes and draft reports by the affected committees before a reference to the Privileges Committee is initiated. 382 However, in cases involving the unauthorised disclosure of in camera evidence, the Committee of Privileges recommended that once a parliamentary committee passes a resolution that in camera evidence was disclosed without its authority, the matter should 377

Senate Committee of Privileges, Parliament of Australia, Parliamentary Privilege: Precedents, procedures and practice in the Australian Senate 1966-2005, 125th report (December 2005), [1.21].

378

Senate Committee of Privileges, Parliament of Australia, Parliamentary Privilege: Precedents, procedures and practice in the Australian Senate 1966-2005, 125th report (December 2005), [4.50]. It is expected that the committee affected by the unauthorised disclosure will have made similar attempts before referring the matter to the Privileges Committee.

379 380

See [4.200]. Senate Committee of Privileges, Parliament of Australia, Parliamentary Privilege – Unauthorised Disclosure of Committee Proceedings, 122nd Report (June 2005). Senate Committee of Privileges, Parliament of Australia, Parliamentary Privilege – Unauthorised Disclosure of Committee Proceedings, 122nd Report (June 2005), [3.54]-[3.57].

381 382

Senate Committee of Privileges, Parliament of Australia, Parliamentary Privilege – Unauthorised Disclosure of Committee Proceedings, 122nd Report (June 2005), [3.43]. The Committee recommended that individual committees assume more responsibility for their own internal discipline, and that if the relevant committee cannot find the source, the matter should not be referred to the Committee of Privileges unless the unauthorised disclosure may involve prejudice to police investigations or court proceedings or may have an adverse effect upon individuals who are the subject of, or who may be adversely affected by, observations or recommendations in a committee’s report.

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automatically come to the Committee of Privileges. 383 A finding of contempt will then be made, regardless of the circumstances. That is, the offence will be regarded as one of strict liability; inadvertence will be taken into account only in the determination of the penalty. The Committee also provided guidance as to when it is appropriate for evidence to be taken in camera, the principle being that this procedure should be used as sparingly as possible. 384 The Senate responded to these recommendations by making a sessional order on 5 October 2005 which lays down guidelines to be observed by committees in determining whether unauthorised disclosures should be raised as matters of privilege. 385 Not all parliaments have adopted this filtering approach.

Communications tending to deter or punish witnesses for giving evidence before a House or a committee [4.490] Any conduct calculated to deter prospective witnesses from giving evidence before a House or committee, or punish them for having done so, is a contempt of parliament. 386 This form of contempt is most likely to be committed by a person who has a direct relationship with the witness, such as an employer who is in a position to dismiss a witness from employment or to disadvantage the witness in his or her career prospects. 387 However, care must be exercised by the media that comments made about evidence given by a witness before a House or committee would not deter witnesses from giving evidence or censure them in respect of evidence already given. 388 The dividing line between legitimate criticism and comments which would deter or punish a witness is particularly hard to delineate. In some jurisdictions, interference with parliamentary witnesses is a statutory offence. For example, the Parliamentary Privileges Act 1987 (Cth) provides that a person shall not, by fraud, intimidation, force or threat, by the offer or promise of any inducement or benefit, or by other improper means, influence another person in respect of any evidence given or to be 383 384 385

386

387

388

Senate Committee of Privileges, Parliament of Australia, Parliamentary Privilege – Unauthorised Disclosure of Committee Proceedings, 122nd Report (June 2005), [3.23]-[3.25]. Senate Committee of Privileges, Parliament of Australia, Parliamentary Privilege – Unauthorised Disclosure of Committee Proceedings, 122nd Report (June 2005), [3.49]. These guidelines are currently contained in: The Senate, Standing and Other Orders (2014) Procedural Orders and Resolutions of the Senate of Continuing Effect, Committees, 3 Unauthorised Disclosure Of Committee Proceedings, Documents Or Evidence, 4 Unauthorised Disclosure Of Committee Proceedings, 5 Joint Committee Documents – Disclosure http://www.aph.gov.au/About_Parliament/Senate/Powers_practice_ n_procedures/standingorders/~/~/~/~/media/FCF9251FD42C4E4AAB9BABDFDC696255.ashx. Jack (ed), (24th ed, 2011), p 267. See Commonwealth Parliament, Parliamentary Privilege, Resolutions Agreed to by the Senate on 25 February 1988, Resolution 6(10) Interference with Witnesses; Parliament of Queensland Act 2001 (Qld), s 37 Examples 9, 10. See House of Representatives Committee of Privileges, Parliament of Australia, Report relating to the alleged discrimination and intimidation of Mr David E Berthelsen in his public service employment because of evidence given by him in a Subcommittee of the Joint Committee on Foreign Affairs and Defence, PP 158 (1980) discussed in Wright (ed), (6th ed, 2012), pp 757-758; House of Representatives Privileges Committee, Parliament of New Zealand, Question of Privilege on the action taken by TVNZ in relation to its chief executive following evidence he gave to the Finance and Expenditure Committee (Interim Report, April, 2006). For discussion of an instance where a journalist and newspaper editor were censured by the Victorian Legislative Council for attacking the credibility of a witness in a select committee inquiry, see: J Waugh (2005) 26 Adelaide Law Review 29 at 33 and the references cited therein.

[4.490] 215

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given before a House or committee, or induce another person to refrain from giving evidence. 389 The Act also prohibits a person from inflicting any penalty or injury upon, or depriving another person of a benefit on account of evidence given or to be given before a House or committee. 390 The section expressly preserves the power of the federal houses to impose a penalty in respect of an offence against a House. 391 An identical provision appears in the Northern Territory legislation. 392

Contempt and the implied freedom of political communication [4.500] It has been argued that if a parliament’s legislative powers are subject to the implied freedom of political communication, it must surely follow that its power to judge persons guilty of contempt and impose penalties is subject to the same restriction. 393 While it is clear that parliament’s power to punish contempts has survived the recognition of the implied freedom, 394 it is unclear whether the implied freedom imposes any restraints on that power. 395 The type of contempt most vulnerable to the impact of the implied freedom is that which involves communications reflecting on a House and a member. Although abolished at Commonwealth level, this form of contempt remains extant in some jurisdictions. Whether the implied freedom affects State parliaments which retain a power to punish libels on themselves depends on the extent to which it applies to communications concerning the State levels of government and the extent to which the criticisms are political. 396 The main problem with the application of the implied freedom in this area may be practical, not theoretical. Courts will need to determine whether the broad interpretation of Art 9 and s 16(3) prevents them from effectively reviewing a claim by a person who has been punished for a contempt that the particular exercise of the contempt power infringed the implied freedom of political communication. Campbell suggests that such rules cannot validly operate to preclude admission of evidence in support of a claim that a house has exceeded its powers. 397 While the matter has not been tested in the courts, some support for Campbell’s view is to be found in Egan v Willis 398 where Kirby J held that Art 9 did not forbid scrutiny of the proceedings of the Legislative Council of New South Wales when the legality of its action was in dispute. 389 390 391 392 393 394 395 396 397 398

Parliamentary Privileges Act 1987 (Cth), s 12(1). Parliamentary Privileges Act 1987 (Cth), s 12(2). Parliamentary Privileges Act 1987 (Cth), s 12(3). See Resolutions Agreed to by the Senate on 25 February 1988, Resolutions 10 and 11. Legislative Assembly (Powers and Privileges) Act (NT), s 20. See also Criminal Code (WA), s 58. Campbell (1999) 10 Public Law Review 196 at 203; Campbell (2003), p 7. Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 187 per Deane J. The issue is considered in G Carney, Members of Parliament: Law and Ethics (2000), pp 197-199. Campbell (1999) 10 Public Law Review 196 at 201. See also M Chesterman, “Privileges and Freedoms for Defamatory Political Speech” (1997) 19 Adelaide Law Review 155 at 190-191. Campbell (1999) 10 Public Law Review 196 at 206. Egan v Willis (1998) 195 CLR 424 at 490-494 discussed in Campbell (1999) 10 Public Law Review 196 at 207.

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Broadcasting parliamentary proceedings on radio, television and the internet Federal parliament [4.510] The reporting of the federal parliament by the electronic media is governed by a labyrinth of laws, parliamentary resolutions and guidelines.

Webcasts [4.520] The advent of the internet has meant that the federal parliament is able to directly webcast its proceedings live in sound and/or visual images on the Australian Parliament website, thereby expanding the accessibility of parliamentary proceedings to the public. 399

Radio broadcasts [4.530] The Parliamentary Proceedings Broadcasting Act 1946 (Cth) provides for compulsory radio broadcasts 400 and re-broadcasts 401 of proceedings of the House of Representatives, the Senate or a joint sitting of the Houses by the Australian Broadcasting Corporation (“ABC”). 402 Matters such as the days on which, and the times during which, the broadcasts must take place, as well as the allocation of time between the Senate and the House of Representatives, are determined by the Joint Committee on the Broadcasting of Parliamentary Proceedings, which is a committee established by the Act and appointed in each parliament. 403 The Joint Committee also determines the conditions on which a re-broadcast can be made. 404 The ABC is protected from any actions, civil or criminal, arising out of any of its broadcasts or re-broadcasts of parliamentary proceedings. 405 Since 1985, the Senate and the House of Representatives have granted all radio stations access to parliamentary proceedings for the purpose of broadcasting excerpts in news and current affairs programs, subject to compliance with a set of guidelines and conditions developed by the Joint Committee. 406 Unlike the ABC’s official, compulsory radio broadcasts, 399

See http://www.aph.gov.au/News_and_Events/Watch_Parliament. See also: Evans and Laing (eds), (13th ed, 2012), p 101; Wright (ed), (6th ed, 2012), pp 123-124. Some committee proceedings are also webcast. Archived material can also be viewed.

400 401 402 403

A broadcast is a live broadcast of proceedings as they occur. A re-broadcast is a broadcast from a sound recording of proceedings that occurred earlier. Parliamentary Proceedings Broadcasting Act 1946 (Cth), ss 4(1), 14. Parliamentary Proceedings Broadcasting Act 1946 (Cth), s 12. For an explanation of the general principles adopted by that Committee in relation to the official ABC broadcasts, as well as its current determinations see: Wright (ed), (6th ed, 2012), pp 118-119.

404 405 406

Parliamentary Proceedings Broadcasting Act 1946 (Cth), s 14. Parliamentary Proceedings Broadcasting Act 1946 (Cth), s 15. Joint Committee on the Broadcasting of Parliamentary Proceedings, Conditions for Granting Access to Proceedings of the Senate and the House of Representatives for the Purpose of Recording and Broadcasting Excerpts, adopted 2 June 1986. See http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_ representatives_Committees?url=jcbpp/excerpts.htm. Among other things, the conditions require excerpts to

[4.530] 217

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which are protected by absolute privilege, these broadcasts enjoy only a qualified privilege in respect of the publication of defamatory matter. 407

Television broadcasts [4.540] The Joint Committee on the Broadcasting of Parliamentary Proceedings has a more limited role under the Act in relation to official telecasts of the federal parliament. The Parliamentary Proceedings Broadcasting Act 1946 (Cth) empowers the ABC to televise joint sittings of the Houses, and obliges it to do so if directed by the Committee. 408 The ABC’s coverage of joint sittings is protected by absolute privilege. In 1986, the Joint Committee recommended that the proceedings of the individual Houses should be able to be televised. This recommendation was not acted upon immediately, although the Houses permitted special parliamentary occasions to be televised. 409 In 1990 and 1991, the Senate and the House of Representatives respectively resolved to permit the permanent live televising of their proceedings and the re-broadcasting of excerpts for news and current affairs programs. 410 Broadcasting and recordings may be made only from the official and dedicated composite vision and sound feed provided by the Sound and Vision Office on the House monitoring system. 411 The vision and sound feed that is provided to networks must itself be produced in conformity with guidelines set for the parliamentary camera operators. 412 Permission to televise is subject to adherence to certain guidelines and conditions, the most important being that the broadcasts shall be used only for the purposes of a fair and accurate report of proceedings. 413 Breach of these conditions may result in withdrawal of access to the broadcasts. 414 These unofficial television broadcasts of parliamentary proceedings enjoy only qualified privilege from defamation actions. Although both Houses permit their proceedings to be televised, actual coverage of proceedings is limited. This is largely due to the fact that ratings are the prime determinant of programming be recorded from the audio signal transmitted from the House monitoring system and prohibit excerpts from being used for the purposes of satire or ridicule, political party advertising or election campaigns. Excerpts are also required to be placed in context and commercial networks must try to ensure that advertising before and after excerpts is appropriate. 407 408 409

410 411

412

413 414

This is made clear in the guidelines. Parliamentary Proceedings Broadcasting Act 1946 (Cth), s 4(2), (3). These included the opening of Parliament, major statements of the Prime Minister, the Budget speech and the Leader of the Opposition’s response to the Budget: Joint Committee on the Broadcasting of Parliamentary Proceedings, Radio and Television Broadcasting of Parliamentary Proceedings (May 1995), [4.3]. Authorisation was initially given by the Senate on 31 May 1990 (revised on 18 October 1990 and 9 May 1991) and by the House of Representatives on 16 October 1991. Television filming in the Senate and House of Representatives chambers is the exclusive responsibility of parliamentary staff. No audio or visual recording or live streaming via camera or other electronic device by other persons is permitted: Rules for Media Related Activity in Parliament House and its Precincts at [5.1]. These guidelines are reproduced in Wright (ed), (6th ed, 2012), p 120. For example, the guidelines direct cameras to focus on the member with the call and generally restrict images to head and shoulders distance. The photographing of members’ papers in close up is prohibited and reaction shots are permitted only in strictly defined circumstances. As with radio broadcasts, television broadcasts cannot be used for political party advertising or election campaigns, satire or ridicule, or commercial sponsorship or advertising. Wright (ed), (6th ed, 2012), p 119.

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on the commercial networks, and parliamentary broadcasts do not rate strongly. Until recently, the only regular television coverage of proceedings was the ABC’s presentation of Question Time in the Senate and the House of Representatives, excerpts in news and current affairs programs and major events of national interest such as the Budget speeches. However, the Australian Public Affairs Channel (A-PAC) 415 provides detailed coverage of federal parliament, including legislation presented during the sitting fortnight, parliamentary committee activities, speeches by members and senators and key debates.

Broadcasts of parliamentary committees [4.550] Committees of the Senate and the House of Representatives may authorise their public proceedings to be broadcast on radio or television, subject to rules laid down by the House and any further rules imposed by the committee concerned. 416 Witnesses who are to appear before a committee hearing must be given an opportunity to object to the broadcast, and any objections must be considered by the committee, having regard to the proper protection of the witness and the public interest in the proceedings. 417

Guidelines for filming and photography [4.560] In 2012, the presiding Officers of the House of Representatives and the Senate issued Rules for General Media Related Activity in Parliament House and its Precincts. 418 The guidelines apply to all filming, photography and sound recording in Parliament House, including by members of the Press Gallery. They also lay down penalties for breach of the rules.

415

A-PAC is operated on a not for profit basis, is fully funded by FOXTEL and produced by Australian News Channel as a free service. Its primary programming commitment is to the coverage of proceedings in the Federal, State and Territory Parliaments. It is available on subscription television and online.

416

Wright (ed), (6th ed, 2012), pp 121, 727-729; Evans and Laing (eds), (13th ed, 2012), pp 502-505. Normally, the media just take a feed from the House monitoring transmission but a Committee can authorise the presence of additional cameras or sound recorders. See Broadcasting of Senate and Committee Proceedings Broadcasting Resolution 3(7), Standing Orders and Other Orders of the Senate, June 2009, http://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_ procedures/. The rules are issued under s 6 of the Parliamentary Precincts Act 1988 (Cth) and operate in conjunction with resolutions of the Senate, House of Representatives and the Joint Committee on the Broadcasting of Parliamentary Proceedings. These rules remove the previous restriction on filming and the use of still photography of chamber proceedings for satire or ridicule. However, restrictions on the use of broadcasts of chamber proceedings for the purposes of satire and ridicule are still contained in the resolutions of the Senate and House of Representatives and in the Joint Committee on the Broadcasting of Parliamentary Proceedings’ Conditions of Access to Senate and House Proceedings for Recording and Broadcasting: http:// www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/FlagPost/2012/ December/New_rules_for_media-related_activity_in_Parliament_House_and_its_precincts.

417

418

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State and Territory parliaments [4.570] All State and Territory Houses webcast their proceedings in audio and/or video live on sitting days. 419 Most houses also provides access to archived audio visual replays of their proceedings. The broadcasting and televising of the proceedings of State and Territory parliaments is generally permitted and is regulated by the Houses by means of resolutions or standing orders which are made pursuant to their implied power to regulate their own proceedings. 420 In the Australian Capital Territory and the Northern Territory, the issue is also addressed in legislation. 421 Some parliaments permit television networks to film proceedings using their own cameras and camera crews, but they are subject to strict conditions and guidelines regarding how and what they are permitted to film. 422 Most parliaments restrict the media to using the vision that is supplied to them by that parliament’s own in-house camera system. 423 Inevitably, media organisations are subject to conditions on the use that can be made of their own film or the feed provided to them by the parliamentary service. The bottom line is that each House retains control over how it is portrayed. 424 Typically, broadcasts can be used only for fair and accurate reports and cannot be used for the purpose of satire or ridicule, political party advertising or election campaigning or commercial sponsorships or advertising.

Reporting elections [4.580] Political advertisements, 425 and the manner in which the media reports elections, each have the capacity to influence public opinion and the way people vote. In an attempt to secure the integrity of elections, the law imposes a number of obligations on the publication or broadcast of electoral matter. These obligations are contained in a range of Commonwealth,

419

For a discussion of parliamentary webcasting see: Legislative Council, Parliament of Western Australia, Standing Committee on Procedure and Privileges in Relation to the Internet Broadcasting of Proceedings of the Legislative Council Chamber Report 10 (2006).

420

See, for example: Australian Capital Territory, Legislative Assembly, Continuing Resolution 3; New South Wales Parliament, Legislative Council, Resolution of Continuing Effect 18 October 2007, Broadcasting of Proceedings; Tasmanian Parliament, Legislative Council, Standing Orders Part 34: Radio and Television Broadcasting; Victorian Parliament, Legislative Assembly, Standing Order 232; Victorian Parliament, Legislative Council, Standing Order 20.01 and 20.02. Legislative Assembly (Broadcasting) Act 2001 (ACT); Legislative Assembly (Powers and Privileges) Act (NT), s 23(1). Typical restrictions on filming include: the camera is permitted to focus only on the member with the call; reaction shots are prohibited (or permitted only on certain conditions); coverage of the public gallery is prohibited; and there must be no close up shots of members’ papers.

421 422

423

Parliaments set their own guidelines for their in-house camera operators. For example, on air cameras are usually directed towards members with the call.

424

Legislative Council, Parliament of Western Australia, Standing Committee on Procedure and Privileges in Relation to The Internet Broadcasting of Proceedings of the Legislative Council Chamber Report No 10 (2006), [2.1].

425

It has been explained that there are a number of contexts in which advertisements can be regarded as political: S Young, “Spot On: the Role of Political Advertising in Australia” (2002) 37(1) Australian Journal of Political Science 82. The primary focus of this section is on political advertising during election campaigns.

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State and Territory Acts. 426 It is important to note that, for the most part, these obligations do not target the content of political messages. 427 The obligations of most relevance to the media are fivefold. They are: • candidates and political parties must be given reasonable opportunities to present their policies to the public; • the public must not be subjected to last minute surprise campaigns or advertising blitzes; • those who authorise the publication of election advertisements must be identified; • misleading and deceptive material concerning the casting of a vote must not be published; and, • candidates must not be defamed. In each case it is necessary to look at the legislation to ascertain the variations that exist between the jurisdictions and to determine whether the obligations are imposed only on printed matter or whether they extend to matter that is broadcast or posted on the internet. In most cases, breach of these obligations is a criminal offence which attracts a penalty of a fine or imprisonment. In so far as these obligations restrict what can be published about the political process, they are subject to the implied constitutional freedom of political discussion, which has particular application during election periods. Whether they are compatible with the implied freedom has not been tested in the courts. In addition to these legislative requirements, electoral commissions often publish guidelines for media coverage in polling places on an election day. These legislative requirements were formulated prior to the advent of social media and social media has outflanked many of them. In 2014 a Victorian Parliamentary committee commenced an inquiry and issued a discussion paper into how social media platforms are used for political and electoral communication, whether “current regulations regarding the authorisation of political content on social media are appropriate” and whether “online electoral advertising, such as Google Adwords, is appropriately regulated in Victoria”. 428

Election broadcasts: reasonable opportunities for political parties [4.590] Broadcasters who derive their authority to broadcast from the Broadcasting Services Act 1992 (Cth) (“licensed broadcasters”) are subject to two requirements under the Act when 426

427 428

Broadcasting Services Act 1992 (Cth); Commonwealth Electoral Act 1918 (Cth); Referendum (Machinery Provisions) Act 1984 (Cth); Electoral Act 1992 (ACT); Parliamentary Electorates and Elections Act 1912 (NSW); Electoral Act (NT); Electoral Act 1992 (Qld); Electoral Act 1985 (SA); Electoral Act 2004 (Tas); Electoral Act 2002 (Vic); Electoral Act 1907 (WA). Australian Electoral Commission, Electoral Backgrounder, Electoral Advertising (July 2013). Victoria, Parliament, Electoral Matters Committee, Inquiry into the Impact of Social Media on Victorian Elections and Victoria’s Electoral Administration, Terms of Reference; Victoria, Parliament, Electoral Matters Committee, Inquiry into the Impact of Social Media on Victorian Elections and Victoria’s Electoral Administration, Discussion Paper (2014). Note, however, that after the Victorian general election held on 29 November 2014, all committees of the 57th Victorian Parliament ceased to exist, and any incomplete inquiries lapsed.

[4.590] 221

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broadcasting election matter: the reasonable opportunities requirement and a ban on broadcasting election advertisements in the immediate lead up to an election. 429 These requirements are imposed in the form of licence conditions. They apply to elections to all federal, State and Territory parliaments and to State and Territory local government authorities. 430 If, during an election period, 431 a licensed broadcaster broadcasts election matter, the broadcaster is required to give reasonable opportunities for the broadcasting of such matter to all political parties contesting the election, provided those parties were represented in either House of Parliament immediately prior to the election period. 432 Election matter is matter that comments on, solicits votes for or advocates support of, a candidate or a candidate’s political party, matter that comments on any of the matters being submitted to the electors or on the policy of a candidate or a political party, and matter that refers to a meeting held in connection with the election. 433 There are several important qualifications to the reasonable opportunities requirement. First, the obligation is not imposed on broadcasters who do not transmit election matter, such as broadcasters with an all music format. Secondly, the obligation is not a guarantee of free access to the electronic media for political parties, since broadcasters are under no obligation to broadcast matter free of charge. 434 Nor are broadcasters required to sell airtime to political candidates at a reasonable rate. Thirdly, the reasonable opportunity requirement does not mean that all parties must be provided with equal opportunities in a quantitative sense. It has been suggested that the requirement is a qualitative measure of the opportunity adequately to express the party’s views. In this regard, the size of the party and the number of candidates it is standing at the election would be relevant to determining what is reasonable. 435 It has also been suggested that the duty is unlikely to give rise to any personal right of action to enforce the obligation in a candidate or party who claims not to have been given reasonable opportunities. 436 The Australian Broadcasting Authority 437 took the view that the obligation does not require the broadcaster to actively solicit material from political parties in the interests 429

International broadcasting services are not subject to these requirements.

430 431

Broadcasting Services Act 1992 (Cth), Sch 2 cl 1 (definition of “election”). Depending on the parliament in respect of which an election is being held, an election period either begins 33 days before the polling day, on the day on which the proposed polling day is publicly announced, or on the day on which the writs are issued. In all cases it ends at the close of the poll: Broadcasting Services Act 1992 (Cth), Sch 2 cl 1. Broadcasting Services Act 1992 (Cth), Sch 2 cl 3(2). Broadcasting Services Act 1992 (Cth), Sch 2 cl 1. Broadcasting Services Act 1992 (Cth), Sch 2 cl 3(3).

432 433 434 435 436

437

P Mallam, S Dawson and J Moriarty, Media and Internet Law and Practice (Thomson Reuters, subscription service), [1.4650]. Mallam, Dawson and Moriarty, Media and Internet Law and Practice (Thomson Reuters, subscription service), [1.4650]. The means of enforcing the obligation include prosecution for an offence, the imposition of a civil penalty or the issue of a written direction to remedy the breach by the Australian Communications and Media Authority: Broadcasting Services Act 1992 (Cth), ss 139, 140A, 141. The Australian Broadcasting Authority was the predecessor to the Australian Communications and Media Authority, which currently administers the Broadcasting Services Act 1992 (Cth).

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of canvassing a range of views, nor does it require broadcasters to provide a balanced or fair report, or give a right of reply or equal time. 438 Rather, the obligation was described in negative terms as “an obligation not to refuse or deny access to a political party when that party seeks air time”. 439 The “low threshold for compliance” demanded by the obligation has attracted criticism. 440 The reasonable opportunities requirement does not apply to the ABC or the SBS. Subject to their respective Acts, these broadcasters are entitled to determine to what extent and in what manner political or controversial matter will be broadcast. 441 Nor does the reasonable opportunities requirement apply to the broadcasting or re-broadcasting of any proceedings of either House of the Federal Parliament or of a joint sitting. 442

Election broadcasts: advertising ban [4.600] To ensure that electors are not subjected to huge advertising campaigns immediately before an election without time for assessment and reflection, and to prevent political parties from buying an election result or springing a surprise campaign at the end, the Broadcasting Services Act 1992 (Cth) imposes a ban on the broadcast of election advertisements from the end of the Wednesday before the polling day until the close of the poll. 443 An election advertisement is defined as an advertisement that contains election matter for the broadcast of which the licensee receives money or other consideration, or an announcement containing a statement to the effect that a program is sponsored by a candidate or a political party standing candidates in the election. 444 438 439 440 441

442 443

444

Australian Broadcasting Authority, Investigation into Malbend Pty Ltd, 1999/0721, 2 August 2001, p 31. The ABA’s findings are summarised in (September 2001) ABA Update 12. Australian Broadcasting Authority, Investigation into Malbend Pty Ltd, 1999/0721, 2 August 2001, p 31. L Hitchens, “Regulation of Election and Political Broadcasting” (2002) 21(1) Communications Law Bulletin 1. Australian Broadcasting Corporation Act 1983 (Cth), s 79A(1); Special Broadcasting Service Act 1991 (Cth), s 70A(1). A policy statement approved by the ABC Board outlines the ABC’s policies pertaining to political and election broadcasts: Allocation of Free Broadcast Time To Political Parties During Election Periods. Pursuant to this policy, the ABC allocates substantial free time to political parties for election broadcasts. Section 7 of the SBS Code of Practice explains that the SBS provides information about elections and referendums to Australia’s diverse communities through, inter alia, the allocation of free airtime to qualifying political parties during federal and state government elections as community information. Parliamentary Proceedings Broadcasting Act 1946 (Cth), s 16. Broadcasting Services Act 1992 (Cth), Sch 2 cl 3A. A much broader restriction on electoral advertising was imposed by the Political Broadcasts and Political Disclosures Act 1991 (Cth), which banned all political advertising during election campaigns and replaced the ban with mandatory free radio and television political advertising time. This law was invalidated by the High Court in Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 on the ground that it infringed the implied constitutional right to free political communication. For a general discussion of advertising bans see: Joint Standing Committee on Electoral Matters, Parliament of Australia, Inquiry into the Conduct of the 2004 Federal Election and Matters Related Thereto (2005), [12.112]-[12.124]. Compare the position in the United Kingdom, where paid political advertisements cannot be broadcast on television or radio: Communications Act 2003 (UK) ss 319(2)(g); 321(2), (3); R (on the application of London Christian Radio Ltd & Christian Communications Partnerships) v Radio Advertising Clearance Centre & Secretary of State for Culture, Media and Sport [2013] EWCA (Civ) 1495. Broadcasting Services Act 1992 (Cth), Sch 2 cl 1.

[4.600] 223

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The Act lays down rules for ascertaining which broadcasters are subject to the ban. 445 Basically, if the broadcaster has a licence area, the broadcaster is subject to the ban if an election is to be held in an area which overlaps or is contained in the licence area. If a broadcaster has a licence which does not have a licence area, or if the broadcasting service is provided under a class licence, the advertising ban applies if the broadcasting service is normally received in the area in which the election is being held. In the case of a general election to the federal parliament, this means that the ban applies throughout Australia; in the case of by-elections and State elections, the boundaries are more difficult to delineate. 446 The SBS is subject to the same ban as the licensed broadcasters. 447 The ban is not imposed on the ABC, as it does not broadcast advertisements. The Australian Government’s Electoral Reform Green Paper: Strengthening Australia’s Democracy identified a number of deficiencies of the advertising ban. It questioned its effectiveness in light of the increasing preponderance of pre-polling, which means that many votes are cast before the ban has begun, and the fact that it is restricted to radio and television broadcasts. 448 Options for reform include extending the period of the ban, expanding the ban to embrace all forms of media (including newspapers and the internet) or dispensing with the ban entirely. 449

Identification requirements [4.610] In each Australian jurisdiction there is a requirement that persons who authorise the publication of electoral material and/or who author such material must be identified. The High Court has held that these requirements are imposed in recognition of the fact that the identity of the authors of statements concerning elections affects the value and weight of those statements in the minds of the electorate. 450 Requiring such persons to be identified therefore secures freedom of choice to electors and thereby assists in ensuring a true election. 451 The obligation also facilitates access to remedies that might be sought in respect of published material. From the perspective of the authorisers, the requirement is intended to discourage “irresponsibility through anonymity”. 452 At Commonwealth level, it is an offence to print, publish or distribute an advertisement, handbill, pamphlet, poster or notice containing electoral matter, 453 or to produce, publish or distribute a video recording containing electoral matter, in respect of a federal election or 445 446 447 448 449 450 451 452 453

Broadcasting Services Act 1992 (Cth), Sch 2 cll 3A(2), (3), (4). M Armstrong, D Lindsay and R Watterson, Media Law in Australia (3rd ed, 1995), p 176. Special Broadcasting Service Act 1991 (Cth), s 70C. Australian Government, Electoral Reform Green Paper: Strengthening Australia’s Democracy (2009), [10.46]-[10.48]. Australian Government, Electoral Reform Green Paper: Strengthening Australia’s Democracy (2009), [10.46]-[10.48]. Smith v Oldham (1912) 15 CLR 355 at 358 (per Griffith CJ), 364 (per Isaacs J). Smith v Oldham (1912) 15 CLR 355 at 358 (per Griffith CJ). Explanatory Memorandum to the Electoral Legislation Amendment Bill 2007 (ACT), cl 100. For the definition of “electoral matter” see Commonwealth Electoral Act 1918 (Cth), s 4(1), (9). See also: Australian Electoral Commission, Electoral Backgrounder, Electoral Advertising (2013), [11]-[19].

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referendum unless the name and address of the person who authorised the advertisement etc, appears at the end. 454 These authorisation requirements apply at all times, not just during election periods. 455 There are certain exceptions to these authorisation requirements, but they have little application to the media. 456 There is no requirement to identify authors of letters to the editor in newspapers and journals. 457 It is also an offence to publish, or to cause, permit or authorise the publication of, a paid electoral advertisement on the internet if the name and address of the person who authorised the advertisement does not appear at the end. 458 The provision pertaining to the internet has no application to unpaid advertisements and applies only to advertisements that are intended to affect voting in an election. This prevents Internet Service Providers who are unaware of the content of web pages hosted on their mainframes from being captured by the provision. 459 Moreover, the provision applies only to promotional electoral material; it does not apply if the published matter forms part of a general commentary on a website. 460 The provision has extra-territorial effect in order to counter the ease with which electoral advertising can be hosted on overseas websites. 461 Identification requirements are also imposed in relation to elections to State and Territory Parliaments, although there are variations between the jurisdictions as to the type of publications that attract the obligation (whether electoral matter in general or only electoral advertisements), the person(s) who must be identified, the forms of publication that are subject to the obligation 462 and whether the obligation applies only during election periods. 463 454

455 456

457 458

459 460

461

462

Commonwealth Electoral Act 1918 (Cth), s 328(1), (1A); Referendum (Machinery Provisions) Act 1984 (Cth), s 121(1), (1A). If an electoral advertisement etc is printed other than in a newspaper, the name of the printer must also appear at the end: s 328(1)(b). The broadcast of such advertisements on radio or television is picked up by the general provision discussed in [4.640], which is also not confined to election periods. This is explained further in: Australian Electoral Commission, Electoral Backgrounder, Electoral Advertising (2013), [9]. Commonwealth Electoral Act 1918 (Cth), s 328(3); Referendum (Machinery Provisions) Act 1984 (Cth), s 121(3). Advertisements in a newspaper announcing the holding of a meeting are not subject to the requirement: Commonwealth Electoral Act 1918 (Cth), s 328(5). Australian Electoral Commission, Electoral Backgrounder, Electoral Advertising (2013), [28]. Commonwealth Electoral Act 1918 (Cth), s 328A; Referendum (Machinery Provisions) Act 1984 (Cth), s 121A. Note that a different definition of “electoral advertisements” applies to the internet: Australian Electoral Commission, Electoral Backgrounder, Electoral Advertising (2013), [32]. For a discussion of these provisions see: Joint Standing Committee on Electoral Matters, Parliament of Australia, Inquiry into the Conduct of the 2004 Federal Election and Matters Related Thereto (2005), [12.10]-[12.32]. Explanatory Memorandum to the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Bill 2006, cl 72. Commonwealth Electoral Act 1918 (Cth), s 328A(2); Referendum (Machinery Provisions) Act 1984 (Cth), s 121A(2). See also: Explanatory Memorandum to the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Bill 2006, cl 72. The evidentiary burden is on the defendant to prove that the matter forms part of general commentary. Commonwealth Electoral Act 1918 (Cth), s 328A(3); Referendum (Machinery Provisions) Act 1984 (Cth), s 121A(3). See also: Explanatory Memorandum to the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Bill 2006, cll 75, 76. Many jurisdictions have extended the identification requirements to electronic publications in light of the increasing use of new media as a platform for election advertising. However, some jurisdictions do not require electoral matter published on the internet to be authorised if it forms part of a general commentary on an internet website.

[4.610] 225

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South Australia imposes the most extensive identification requirements. There is the typical prohibition on publishing or distributing electoral advertisements in printed form or through electronic publication on the internet unless the name and address of the author or authoriser of the advertisement appears at the end. 464 Moreover, advertisements that are authorised for a registered political party, a candidate endorsed by a registered political party or a relevant third party 465 are also required to include the party’s name or the third party’s name (as the case may be) at the end. 466 In the case of an electoral advertisement that is printed but not in a newspaper, the name and place of business of the printer must appear at the end. 467 The South Australian electoral laws also prohibit a person from publishing material during an election period that comments on any candidate or political party, or the issues being submitted to electors, whether in written form or by radio or television unless the material or program in which the material is presented states the name and address of a person who takes responsibility for the publication of the material. 468 There are a number of exceptions to this requirement. For example, it does not apply to: the publication of a leading article in a journal (defined as a newspaper, magazine or periodical); the publication of a letter that contains the name and address of its author; the publication in a journal of an article, letter, report or other matter if the journal contains a statement to the effect that a person whose name and address appears in the statement takes responsibility for the publication of all electoral matter published in the journal; or a news service or current affairs program on radio or television. Finally, in most jurisdictions, where electoral matter is inserted in a newspaper for reward the proprietor of the newspaper must cause the word “advertisement” to be printed as a headline to the advertisement in letters of a certain size. 469 This places the responsibility on newspaper proprietors to ensure that advertisements are clearly designated as such. 463

464 465

466 467 468

469

Electoral Act 1992 (ACT), ss 291 – 295; (see Australian Capital Territory, Legislative Assembly, Voting Matters Select Committee on Amendments to the Electoral Act 1992 Report No 1, 2014 [5.54]-[5.61]. In this report the Select Committee noted that the reference in the Electoral Act to “electoral matter” in its authorisation provisions is very broad and needs to be narrowed in view of the advent of social media since, in its present form, it is unable to be enforced. The Committee recommended that s 292 be amended to exempt private unpaid commentary on social media from the authorisation requirements and that the Attorney-General consider the legislation and findings of other jurisdictions when re-drafting the provision); Parliamentary Electorates and Elections Act 1912 (NSW), ss 151E, 151EA; Electoral Act (NT), ss 268 – 270, 273, 274; Electoral Act 1992 (Qld), s 181; Electoral Act 1985 (SA), ss 112, 116; Electoral Act 2004 (Tas), ss 190 – 194; Electoral Act 2002 (Vic), ss 83, 86; Electoral Act 1907 (WA), ss 187(1), (2), 187B. Electoral Act 1985 (SA), s 112(1)(a). A relevant third party is defined to mean an organisation or other person, other than a registered political party, candidate or natural person, who intends to spend more than $2000 on electoral advertisements during an election period. Electoral Act 1985 (SA), s 112(1)(ab), (ac). Electoral Act 1985 (SA), s 112(1)(b). Electoral Act 1985 (SA), s 116. At one stage this requirement was imposed on material published on the internet but all references to the internet were removed in 2013 by the Electoral (Miscellaneous) Amendment Act 2013 (SA). Commonwealth Electoral Act 1918 (Cth), s 331; Referendum (Machinery Provisions) Act 1984 (Cth), s 124; Electoral Act 1992 (ACT), s 296; Electoral Act (NT), s 272; Electoral Act 1992 (Qld), s 184; Electoral Act 1985

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Misleading and deceptive material [4.620] In most jurisdictions a person is prohibited from printing, publishing or distributing any material that is likely to mislead or deceive an elector “in relation to the casting of a vote” or, in Queensland, “in relation to the way of voting” or, in Tasmania, “in relation to the recording of” a vote. 470 The Commonwealth provision applies to printed matter and matter published by radio, television, internet and telephone. Unlike the identification requirements, this requirement only applies during the formal election period. In most jurisdictions, it is a defence if the person proves that he or she did not know, and could not reasonably be expected to have known, that the material was likely to mislead an elector in relation to the casting of a vote. The High Court has held that the phrase “in or in relation to the casting of a vote” refers to the technical acts which an elector must perform in order to record his or her vote, namely, obtaining and marking a ballot paper and depositing it in the ballot box. 471 Examples of infringing behaviour include a statement that a ballot paper should be marked in a way that would render it invalid, 472 or a statement that a person who wishes to support a particular party should vote for a candidate who belongs to a rival party, a statement that two candidates be given a first preference vote, or an incorrect statement regarding the opening hours of a polling booth. The provision does not cover statements or political messages which are directed at influencing the formation of an elector’s political judgment or choice. 473 This narrow interpretation cuts down the ambit of the provision considerably, as it effectively means that the law does not mandate truth in political advertising despite the potential of misleading and deceptive advertisements to “distort election outcomes” and “divert voter attention from substantive issues”. 474 The position in South Australia and the Northern Territory is different. In South Australia, a person who authorises, causes or permits the publication of an electoral advertisement containing a purported statement of fact which is inaccurate and misleading to a material (SA), s 114; Electoral Act 2004 (Tas), s 195; Electoral Act 2002 (Vic), s 85. In some jurisdictions this requirement is also imposed on the proprietors of journals and periodicals. In South Australia, it also applies to electronic publications on the internet. The requirement is not confined to election periods. 470

471 472

473

474

Commonwealth Electoral Act 1918 (Cth), s 329; Referendum (Machinery Provisions) Act 1984 (Cth), s 122; Electoral Act 1992 (ACT), s 297; Parliamentary Electorates and Elections Act 1912 (NSW), s 151A(1)(b); Electoral Act (NT), s 270(3); Electoral Act 1992 (Qld), s 185(1); Electoral Act 2004 (Tas), s 197; Electoral Act 2002 (Vic), s 84; Electoral Act 1907 (WA), s 191A(1). “Likely to mislead” means calculated to lead astray or into error: Beck v Porter (1980) 26 SASR 129. Evans v Crichton-Browne (1981) 147 CLR 169. See also Webster v Deahm (1993) 116 ALR 222 at 227-228. In some jurisdictions, it is a separate offence to print, publish or distribute material that contains a representation or purported representation of a ballot-paper for use in that election that is likely to induce an elector to mark his or her vote otherwise than in accordance with the directions on the ballot paper: Electoral Act 1992 (ACT), s 298; Parliamentary Electorates and Elections Act 1912 (NSW), s 151A(1)(a); Electoral Act 1992 (Qld), s 185(3); Electoral Act 2002 (Vic), s 84(2); Electoral Act 1907 (WA), s 191A(2). Evans v Crichton-Browne (1981) 147 CLR 169 affirmed in: Faulkner v Elliott [2010] FCA 884; Peebles v Honourable Tony Burke [2010] FCA 838; Holmdahl v Australian Electoral Commission (No 2) [2012] SASCFC 110 at [50]. G Williams, “Truth in Political Advertising Legislation in Australia” (Research Paper No 13, Parliamentary Library, Parliament of Australia, 2006-7).

[4.620] 227

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extent is guilty of an offence. 475 It has been held that, unlike its counterpart in other jurisdictions, the provision is not limited to material affecting the actual casting of a vote, but encompasses electoral advertisements designed to influence the decision of a voter on how to vote. 476 However, it does not apply to opinions. 477 It is a defence to a charge if the person establishes that he or she took no part in determining the content of the advertisement and could not reasonably be expected to have known that the statement was inaccurate and misleading. 478 Provision is made for the Electoral Commissioner or the Supreme Court of South Australia to request a person to withdraw an inaccurate or misleading advertisement from further publication and/or to publish a retraction. 479 The Northern Territory has recently inserted a provision into its Electoral Act (NT) which prohibits a person from publishing or distributing any campaign material which is likely to mislead an elector, deceive an elector, improperly interfere with an elector casting a vote or which contains an untrue or incorrect statement. 480 Although the primary focus of the current laws is on ensuring that persons who authorise content are identified, rather than on the nature of the content itself, the issue of truth in political advertising remains the subject of recurrent investigation and debate. However, successive Governments and parliamentary committees, while readily agreeing that truth in political advertising is a highly desirable objective, have tended to resist the notion that it can be feasibly mandated by legislation. 481 The main objection to such laws is that they involve 475

Electoral Act 1985 (SA), s 113. The provision applies to advertisements published by any means. For a discussion of whether a misleading or deceptive advertisement is sufficient to declare an election void see: Featherston v Tully (2002) 83 SASR 302 at 311, 338-339.

476

Featherston v Tully (2002) 83 SASR 302 at 342.

477 478

Cameron v Becker (1995) 64 SASR 238. This defence is most likely to be utilised by broadcasters and newspaper publishers: Cameron v Becker (1995) 64 SASR 238. Electoral Act 1985 (SA), s 113(4), (5). Electoral Act (NT), s 270(3)(b). See, eg: Joint Standing Committee on Electoral Reform, Parliament of Australia, Second Report (August 1984), [2.74]-[2.77]; Joint Standing Committee on Electoral Matters, Parliament of Australia, Report of the inquiry into the conduct of the 1993 federal election and matters related thereto (November 1994); Joint Standing Committee on Electoral Matters, Parliament of Australia, The 1996 Federal Election: Report of the Inquiry into the Conduct of the 1996 Federal Election and Matters Related Thereto (June 1997), [7.9] and Government Response, Commonwealth, Parliamentary Debates, Senate, 8 April 1998, p 2399; Senate Finance and Public Administration Legislation Committee, Parliament of Australia, Charter of Political Honesty Bill 2000 [2002], Electoral Amendment (Political Honesty) Bill 2000 [2002], Provisions of the Government Advertising (Objectivity, Fairness and Accountability) Bill 2000, Auditor of Parliamentary Allowances and Entitlements Bill 2000 [No 2], (August 2002); Joint Standing Committee on Electoral Matters, Parliament of Australia, Report of the conduct of the 2004 federal election and matters related thereto, (October 2005), [12.150]-[12.177]; Joint Standing Committee on Electoral Matters, Parliament of Australia, Report of the Inquiry into All Aspects of the Conduct of the 1996 Federal Election and Matters Related Thereto (1997); Electoral Matters Joint Investigatory Committee, Parliament of Victoria, Inquiry into the Provisions of the Electoral Act 2002 (Vic) relating to misleading or deceptive political advertising (February 2010). Note, however, that not all governments and parliamentary committees have been reluctant to recommend the introduction of legislation of this nature. Many of the aforementioned reports contain minority reports in favour of mandating truth in political advertising. See also: Legislative Assembly, Legal, Constitutional and Administrative Committee, Parliament of Queensland, Truth in Political Advertising, Report No 4 (1996). Voluntary codes of conduct have also been touted as an alternative to legislation: Australian Government, Electoral Reform Green Paper: Strengthening Australia’s Democracy (2009), [10.23].

479 480 481

228 [4.620]

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complex, vague and subjective assessments of intangible concepts and ideas that the Australian Electoral Commission or the courts, as the case may be, would find too difficult or controversial to administer. 482 Other concerns are that truth in political advertising laws might inhibit political advertising, infringe the implied freedom of political communication and, if such requirements could be enforced by way of an injunction, might enable candidates and political parties to disrupt the campaigns of their opponents. 483 Governments and committees that have considered the issue have generally concluded that voters are the best arbiters of the credibility and weight that should be given to political advertisements and that candidates whose reputations have been sullied by false or misleading advertisements should seek recourse in defamation law. Scams of the kind that occurred in the division of Lindsay during the 2007 federal election campaign expose the limitations of the existing laws. The scandal concerned fake election pamphlets distributed by persons associated with the Liberal Party claiming to be from a bogus organisation called the Islamic Australia Federation. In the pamphlet the Federation urged support for the Labor party and thanked them for supporting the Bali bombers and the construction of a new mosque in the local area. Despite the deliberately false claims made in the pamphlet, its propensity to cause racial tension and that fact that it was indisputably designed to mislead voters about the Labor party, the only offence committed by the perpetrators was their failure to comply with the identification requirements. Nevertheless, the Joint Standing Committee on Electoral Matters, which conducted an inquiry into the scandal, recommended only that the penalties for breach of s 328 be increased and that the section be redrafted as a strict liability offence; 484 it did not advocate the enactment of truth in political advertising laws. 485 A similar investigation in Victoria yielded the same result. 486 482

483

484 485 486

Truth in political advertising was briefly mandated in 1984, when s 161 (which later became s 329(2)) was inserted into the Commonwealth Electoral Act 1918 (Cth) by the Commonwealth Electoral Legislation Amendment Act 1983 (Cth). That provision made it an offence to print, publish, distribute or broadcast any electoral advertisement containing a statement that was untrue or that was, or was likely to be, misleading or deceptive. The provision was repealed eight months later by the Electoral and Referendum Amendment Act 1984 (Cth). In May 2010, a private member’s bill – the Electoral (Truth in Advertising) Amendment Bill 2010 – was introduced into the Queensland parliament but was not enacted. For a review of the history of the debate see: S Miskin and R Grant, Political Advertising in Australia (Research Brief No 5, Parliamentary Library, Parliament of Australia, 2004-5); G Williams, Truth in Political Advertising Legislation in Australia (Research Paper No 13, Parliamentary Library, Parliament of Australia, 2006-7). Joint Standing Committee on Electoral Matters, Parliament of Australia, Report on the 2007 Federal Election – Events in the Division of Lindsay (2010). On 1 September 2010 the Australian Greens and the Australian Labor Party formally agreed to enact such an offence in the Commonwealth Electoral Act 1918 (Cth) but the amendments did not eventuate. The deliberate misleading of electors in the June 2008 Kororoit by-election was the subject of an investigation and report by the Electoral Matters Committee of the Victorian Parliament. A pamphlet authorised by the Secretary of the Australian Labor Party which was distributed in letterboxes and at polling booths falsely claimed that “A vote for Les Twentyman is a vote for the Liberals”. The Committee was asked to investigate whether the Electoral Act 2002 (Vic) should be amended to improve the operation of the misleading provisions of the Act so that abuses of this nature can be successfully prosecuted. However, the Committee did not recommend the introduction of truth in political advertising laws: Electoral Matters Joint Investigatory Committee, Parliament of Victoria, Inquiry into the Provisions of the Electoral Act 2002 (Vic) relating to misleading or deceptive political advertising (February 2010).

[4.620] 229

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Defaming a candidate [4.630] In most jurisdictions, candidates who believe they have been defamed must seek redress through a civil defamation action. However, in the ACT and Queensland it is a criminal offence to make or publish a false and defamatory statement in relation to the personal character or conduct of a candidate for an election. 487 In Queensland the maker of the statement must know that it is false in order for the offence to be committed. In the ACT, it is a defence to a prosecution if the defendant proves that he or she had reasonable grounds for believing, and did in fact believe, the statement to be true. In that jurisdiction the maker of the false and defamatory statement can be restrained by injunction at the suit of the aggrieved candidate from repeating it or any similar statement. He or she could also be the subject of a civil defamation suit. 488 Defamation of a candidate is not an offence in South Australia, but it can result in an election being declared void. 489

Identification and records of political matter [4.640] The ABC, SBS and broadcasters who derive their authority to broadcast from the Broadcasting Services Act 1992 (Cth) (but not international broadcasting services) are each subject to two requirements relating to the broadcast of political matter, namely, the identification of political matter and the keeping of records of political matter. 490 These obligations apply whether or not an election or referendum is pending. They do not apply to the broadcasting or re-broadcasting of any proceedings of the federal parliament. 491 When a broadcaster transmits political matter at the request of another person, the broadcaster is required to cause the following identifying particulars to be announced immediately after the broadcast: the name of the person or political party who authorised the broadcast, the town, city or suburb in which that person lives or in which the principal office of the party is situated, and the name of each speaker who delivered an address or made a statement. 492 A person is taken to have authorised the broadcast of political matter only if the 487

488 489

490 491 492

Electoral Act 1992 (ACT), s 300; Electoral Act 1992 (Qld), s 185(2). A similar provision in the Commonwealth Electoral Act 1918 (Cth), s 350 was repealed by the Electoral and Referendum Legislation Amendment Act 2007 (Cth). See also: Joint Committee on Electoral Matters, Parliament of Australia, Inquiry into the Conduct of the 2004 Federal Election and Matters Related Thereto (2005), [12.37]-[12.50]. But see Roberts v Bass (2002) 212 CLR 1, which has considerably widened the ambit of qualified privilege in relation to attempts to injure the credibility of a candidate. Electoral Act 1985 (SA), s 107 (in this context, “defamation” has been held to refer to the tort of defamation: Featherston v Tully (No 2) (2002) 83 SASR 347 at 390. It would presumably encompass defamation under the Defamation Act 2005 (SA)). For broadcasters who derive their authority to broadcast from the Broadcasting Services Act 1992 (Cth), these requirements are imposed as licence conditions. Parliamentary Proceedings Broadcasting Act 1946 (Cth), s 16. Broadcasting Services Act 1992 (Cth), Sch 2, cll 1, 4(2); Australian Broadcasting Corporation Act 1983 (Cth), s 79A(2), (5); Special Broadcasting Service Act 1991 (Cth), s 70A(2), (5). If the political matter is broadcast by radio, the required particulars must obviously be spoken. For television, the required form is spoken announcement plus images (text), although the names of the speakers need not be included in the spoken version. In all cases, the required particulars must be broadcast in the same language as the political matter: Australian Communications and Media Authority, Election Guidelines Fact Sheet (2013).

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person is responsible for approving the content of the matter and the decision to present it for broadcasting. 493 The condition applies at all times. The purpose of this requirement is not to restrict or censor comment, but to inform the public of who it is that is trying to persuade them. Identifying the speaker is designed to prevent anonymous or falsely attributed political matter being broadcast. 494 News and current affairs broadcasts are not subject to the requirement, since they are generally not broadcast at the request of another person. 495 The Broadcasting Services Act 1992 (Cth) offers little guidance in determining what is political matter, although it would certainly include election advertisements. 496 The Australian Communications and Media Authority (ACMA) regards the issue as a question of fact to be determined by reference to the circumstances and available evidence including: the content of the broadcast; the overall presentation of the material including the tone, style, and emphasis; the nature and style of any accompanying audio or visual material; and the context surrounding the broadcast. 497 Matter that simply promotes a product or service is not regarded as “political matter” merely because it refers to something that is political. 498 Broadcasters must keep a record of the name, address and occupation of any person (or company) at whose request political matter was broadcast. 499 Licensed broadcasters must generally keep the record for 6 weeks, 500 and must give particulars of these records to the ACMA if required to do so. The national broadcasters are required to keep the record for two years. 501 Broadcasters must also keep records of broadcasts relating to a political subject or current affairs, whether in the form of news, an address, a statement, a commentary or a discussion. 502 This wide record-keeping requirement ensures that records are available for a range of purposes including defamation actions, program complaints and historical purposes. 503 The range of material covered is so wide that records of virtually everything 493 494 495

Australian Communications and Media Authority, Election Guidelines Fact Sheet (2013). Australian Broadcasting Authority, Guidelines for Broadcasting of Political Matter (1998). For examples of commercial radio stations which have broadcast untagged political matter in breach of this requirement see: Australian Broadcasting Authority, Investigation into Malbend Pty Ltd, 1999/0721, (2 August 2001); Australian Broadcasting Authority, Commercial Radio Inquiry, Report of the Australian Broadcasting Authority Inquiry into Radio 2UE Sydney Pty Ltd (February 2000). See also Hitchens (2002) 21(1) Communications Law Bulletin 1.

496

Political matter is unhelpfully defined to include the policy launch of a political party: Broadcasting Services Act 1992 (Cth), Sch 2 cl 1.

497 498 499

Australian Communications and Media Authority, TCN Sydney Investigation Report No 3086 (2013). Australian Communications and Media Authority, TCN Sydney Investigation Report No 3086 (2013). Broadcasting Services Act 1992 (Cth), Sch 2 cl 4(3); Australian Broadcasting Corporation Act 1983 (Cth), s 79A(3); Special Broadcasting Service Act 1991 (Cth), s 70A(3). Broadcasting Services Act 1992 (Cth), Sch 2 cl 1. If the matter relates to an election or referendum and was broadcast during the election period, the record must be kept for six weeks or until the end of the election period, whichever is longer. Australian Broadcasting Corporation Act 1983 (Cth), s 79A(5); Special Broadcasting Service Act 1991 (Cth), s 70A(5).

500

501 502 503

Broadcasting Services Act 1992 (Cth), Sch 2 cl 5; Australian Broadcasting Corporation Act 1983 (Cth), s 79B; Special Broadcasting Service Act 1991 (Cth), s 70B. Armstrong, Lindsay and Watterson (3rd ed, 1995), p 168.

[4.640] 231

Australian Media Law

except music broadcasts must be kept. Ordinarily, the record must be kept for six weeks. The ACMA can direct a person who has custody of a record to deliver it up for safekeeping if it believes the record is of sufficient historical interest to justify its permanent preservation. 504

504

Broadcasting Services Act 1992 (Cth), Sch 2 cl 5(8). The person must comply with the direction but is entitled to fair compensation. No equivalent requirement about the preservation of records of matters of historical interest is imposed on the national broadcasters.

232 [4.640]

Media and Open Justice

5

[5.10] INTRODUCTION: THE PRINCIPLE OF OPEN JUSTICE .......................... 234 [5.20] Purpose of open justice ........................................................................... 235 [5.30] Role of the media in open justice ........................................................... 238 [5.40] Sources of open justice ............................................................................ 241 [5.50] The ambit of open justice ....................................................................... 242 [5.60] COMMON LAW EXCEPTIONS TO THE PRINCIPLE OF OPEN JUSTICE .............................................................................................. 245 [5.60] Conducting proceedings in camera ...................................................... 245 [5.90] Concealing information from those present in the courtroom ........... 250 [5.100]

Power to conceal information from those present in the courtroom .................................................. 251 [5.110] When is such power properly exercised? ........................... 252 [5.150] Non-publication orders ......................................................................... 256 [5.160] Power to make a non-publication order ............................. 257 [5.170] When is such power properly exercised? ........................... 258 [5.190] Proceeding Non-publication Orders versus General Non-publication Orders ............................. 260

[5.240] THE MEANING OF NECESSITY ............................................................. 264 [5.250] Orders That Derogate From Open Justice ........................................... 264 [5.290] General Non-publication Orders .......................................................... 268 [5.300] CHALLENGING A DECISION TO DEROGATE FROM OPEN JUSTICE .............................................................................................. 270 [5.310] Right to Oppose the Making of an Order Before the Magistrate or Judge by Whom it was Made .................................. 270 [5.320] Right to Apply to Superior Court for Relief ......................................... 272 [5.330] Right to Lodge an Appeal ..................................................................... 272 [5.340] CONSEQUENCES OF BREACHING AN ORDER THAT DEROGATES FROM OPEN JUSTICE ................................................. 273 [5.380] STATUTORY EXCEPTIONS TO THE PRINCIPLE OF OPEN JUSTICE ..... 275 [5.380] General comments ................................................................................ 275 [5.390] General Statutes in each Australian jurisdiction ................................. 280 [5.400] [5.410] [5.420] [5.450] [5.460] [5.470] [5.480] [5.490] [5.560]

Commonwealth ................................................................ Australian Capital Territory ................................................ New South Wales .............................................................. Northern Territory ............................................................. Queensland ....................................................................... South Australia .................................................................. Tasmania ........................................................................... Victoria .............................................................................. Western Australia ............................................................... [5.570] Specific provisions .................................................................................

280 281 282 291 292 293 296 297 305 306

[5.580] USING ELECTRONIC DEVICES TO COLLECT AND DISSEMINATE INFORMATION ABOUT COURT PROCEEDINGS .... 309 [5.590] Recording court proceedings ............................................................... 309 233

Australian Media Law

[5.600] Photographing, filming and broadcasting court proceedings .......... 310 [5.600] [5.610] [5.620] [5.630]

The practice ...................................................................... The legal perspective ......................................................... Why judges remain wary of television coverage ................. Recent developments ........................................................ [5.640] Live text-based communications from the courtroom ...................... [5.650] Courts as publishers ..............................................................................

310 311 313 315 316 318

[5.660] OPEN JUSTICE AND ACCESS TO DOCUMENTS FILED IN LEGAL PROCEEDINGS ................................................................. 319 [5.670] The status of a court file at common law ............................................ 321 [5.675] Legislative intervention ......................................................................... 324 [5.675] [5.680]

The Current Position ......................................................... 324 Moves to Harmonise Access to Court Information ............. 328 [5.710] The electronic court record .................................................................. 331

[5.720] OPEN JUSTICE AND INFORMATION DISCLOSED PURSUANT TO COMPULSORY COURT PROCESSES ...................... 332 [5.730] The existence and nature of the obligation ........................................ 333 [5.760] Breach of the obligation ....................................................................... 335 [5.770] Duration and termination of the obligation ....................................... 336 [5.780] Waiver and release from the obligation .............................................. 339 [5.790] The obligation and the implied freedom of political communication ................................................................... 340 [5.800] OPEN JUSTICE AND JURIES ................................................................... 341 [5.800] The disclosure and publication of jury deliberations ......................... 341 [5.810] Policy considerations ............................................................................. 341 [5.820] Common law position ........................................................................... 343 [5.830] Position under statute ........................................................................... 346 [5.840] Identifying jurors .................................................................................... 349

Introduction: the principle of open justice [5.10] One of the most fundamental and deeply-rooted characteristics of the common law tradition is that judicial proceedings are normally conducted in open court. 1 Indeed, the fact that judicial proceedings are conducted in public and not in secret is regarded as an essential attribute of a court, and as a “hall-mark of judicial as distinct from administrative procedure”. 2 An “open court” means a court to which the public has a right of admission, and which holds 1

2

For a brief history of the principle of open justice, which is said to pre-date the Magna Carta (Terry v Persons Unknown [2010] EWHC 119 at [106]), see: Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 50-52; P Wright, “The Open Court: The Hallmark of Judicial Proceedings” (1947) 25 Canadian Bar Review 721; G Nettheim, “The Principle of Open Justice” (1986) 8 University of Tasmania Law Review 25; Hon JJ Spigelman AC, “The Principle of Open Justice: A Comparative Perspective” (2006) 29(2) University of New South Wales Law Journal 147.. McPherson v McPherson [1936] AC 177 at 200. See also: Daubney v Cooper (1829) 10 B & C 237 at 240; 109 ER 438 at 440; Dickason v Dickason (1913) 17 CLR 50 at 51; Russell v Russell (1976) 134 CLR 495 at 520; R v Tait (1979) 46 FLR 386 at 402; Hogan v Hinch (2011) 243 CLR 506 at 530. In federal courts, open justice is regarded an essential characteristic of the exercise of federal judicial power: Grollo v Palmer (1995) 184 CLR 348 at 379.

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hearings in such a place and under such circumstances that it would be plain to an interested member of the public that he or she has a right of free access to the place where the matter is being heard. 3 A person who, without lawful justification, attempts to prevent members of the public who wish to be present at judicial proceedings from entering the court or its precincts is liable to be found guilty of contempt of court. 4 Some of the more important corollaries of the principle of open justice, subject to specific exceptions, are as follows: no member of a court may seek anonymity; 5 magistrates and judges must pronounce their decisions in open court 6 and publish their reasons for final decisions and important interlocutory rulings; 7 the evidence communicated to the court is communicated publicly; 8 and what passes in court can be reported to the public at large by those who choose to attend. 9

Purpose of open justice [5.20] There are many reasons why open justice is regarded as an indispensable feature of our legal system. Historically, judges and jurists have lauded open justice for the benefits it confers on the administration of justice. Most significantly, it is said to act as a bastion against the exercise of arbitrary power by the judge 10 and to provide an impetus for high judicial performance. 11 The fact that a judge’s rulings on matters such as the admissibility of evidence 3

4 5 6 7

8 9

10

11

Dando v Anastassiou [1951] VLR 235 at 237-238. See also Kenyon v Eastwood (1888) 57 LJQB 455; McPherson v McPherson [1936] AC 177; Re Application by Chief Commissioner of Police (Vic) for Leave to Appeal (2004) 9 VR 275 at 286. For an interesting disagreement between some Canadian judges as to whether a routine motion that was heard in a small anteroom next to the courtroom was heard in public see: Palkowski v Ivancic (2009) ONCA 705. Ex parte Tubman; Re Lucas (1970) 92 WN (NSW) 520 at 531. R v Felixstowe Justices; Ex parte Leigh [1987] 1 QB 582. Wandin Springs v Wagner [1991] 2 VR 496; Carra v Hamilton (2001) 3 VR 114 at 122. Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 277-281; Ives v Western Australia (No 2) [2010] WASC 221 at [5]; Wainohu v New South Wales (2011) 243 CLR 181 at 215; R (on the application of Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2011] QB 218. Lord Neuberger has added that open justice is served when judges write judgments that are clear and accessible: Lord Neuberger of Abbotsbury, Master of the Rolls, “Open Justice Unbound?” (Speech delivered at the Judicial Studies Board Annual Lecture, 16 March 2011). Attorney-General (UK) v Leveller Magazine Ltd [1979] AC 440 at 450. Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 55. See also: Attorney-General (UK) v Leveller Magazine Ltd [1979] AC 440 at 450. Other rules and practices that are informed by the adage that “justice must be seen to be done” are listed in Hon JJ Spigelman, “Seen to be Done: The Principle of Open Justice – Pt I” (2000) 74 Australian Law Journal 290; Hon JJ Spigelman, “Seen to be Done: The Principle of Open Justice – Pt II” (2000) 74 Australian Law Journal 378. David Syme & Co Ltd v General Motors-Holden’s Ltd [1984] 2 NSWLR 294 at 300. See also Cowley v Pulsifer 50 Am Rep 318 (1884); Russell v Russell (1976) 134 CLR 495 at 520; Attorney-General (UK) v Leveller Magazine Ltd [1979] AC 440 at 450; Richmond Newspapers Inc v Virginia 448 US 555 at 592, 596 (1980); Broadcasting Corporation of New Zealand v Attorney General [1982] 1 NZLR 120 at 122; Harman v Secretary of State for the Home Department [1983] 1 AC 280 at 303; R v Legal Aid Board; Ex parte Kaim Todner [1999] QB 966 at 977; Named Person v Vancouver Sun [2007] 3 SCR 253 at [32]; R (on the application of Guardian News & Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420 at [1]. Sir Frank Kitto, Judicial Essays (Law Foundation of New South Wales and Victorian Law Foundation, 1975), p 9. See also R v Davis (1995) 57 FCR 512 at 514; Justice M Gleeson, “Judicial Accountability” (1995) The Judicial Review 117 at 122-124.

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or the credit of witnesses must be given in public reduces the opportunity for judicial partiality, arbitrariness or idiosyncrasy, 12 as any impropriety of this nature will be evident to those who are present in court. In the words of Bentham: Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial. It is to publicity, more than to everything else put together, that the English system of procedure owes its being the least bad system as yet extant, instead of being the worst. 13

To the extent that the courts act as guardians of the rule of law, the principle guards the guardians 14 and is therefore “an aspect of the rule of law in a democracy”. 15 Secondly, open justice acts as a check on the veracity of witnesses, as witnesses are more likely to be truthful if they have to testify in public, due to the fear of rebuttal. 16 It is also claimed that openness in court proceedings may “induce unknown witnesses to come forward with relevant testimony”, 17 although it has been suggested that while the initial reporting of a crime might elicit unknown witnesses, it would be “rare for new evidence to arise as a result of the hearing itself”. 18 Thirdly, open justice is capable of benefitting the litigants: The wronged person seeks not only private reparation, but public vindication. The judgment proclaims to the community the rightness – or perhaps the error – of the claimant’s pretension. Disputes must be resolved and people must move on. All this is best done if the system of justice operates openly and transparently. 19

In addition to these private benefits, the principle of open justice confers a number of benefits on the public. 20 Specifically, open justice provides a form of community legal education, 21 12 13 14 15 16

17 18 19 20 21

Attorney General (UK) v Leveller Magazine [1979] AC 440 at 450. Bowring (ed), Works of Jeremy Bentham (1843), Vol 4, 316-317 as cited in Nettheim (1986) 8 University of Tasmania Law Review 25 at 28. R (on the application of Guardian News & Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420 at [1]. A v British Broadcasting Corporation (Scotland) [2014] UKSC 25 at [23]; Guardian News and Media Ltd v AB, CD [2014] EWCA Crim B1 (12 June 2014) at [2]. Sir William Blackstone, Commentaries on the Laws of England (1768), Vol III, p 373; Wigmore on Evidence (Chadborne Revision, 1976) Vol 6, p 436; J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10 at 45; Witness v Marsden (2000) 49 NSWLR 429 at 461; West Australian Newspapers Ltd v Western Australia [2010] WASCA 10 at [30]. But see C Baylis, “Justice Done and Justice Seen to be Done – the Public Administration of Justice” (1991) 21 Victoria University of Wellington Law Review 177 at 186. Gannett Co Inc v DePasquale 443 US 368 at 383 (1979); West Australian Newspapers Ltd v Western Australia [2010] WASCA 10 at [30]. Baylis (1991) 21 Victoria University of Wellington Law Review 177 at 186. Right Honourable B McLachlin, “Courts, Transparency and Public Confidence” (2003) 8(1) Deakin Law Review 1 at 8. That the principle has both public and private aspects was emphasised by Owen JA in Re Hogan; Ex parte West Australian Newspapers Ltd (2009) 41 WAR 288 at 299. Richmond Newspapers Inc v Virginia 448 US 555 at 571-572 (1980); Wigmore, Evidence (3rd ed, 1940), Vol 6, p 335; Hon JJ Spigelman, “Seen to be Done: The Principle of Open Justice – Pt I” (2000) 74 Australian Law Journal 290 at 295.

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reduces the likelihood of uninformed and inaccurate commentary about court cases, 22 is capable of having a significant deterrent effect on the accused and on those who might otherwise be inclined to break the law 23 and has a therapeutic value to the public in so far as it affords an outlet for the concern, hostility and emotion that is engendered by serious crime. 24 The fact that evidence, argument and reasoned decisions are presented in open court permits professional and public discussion, scrutiny and criticism of the judicial process, 25 thereby enabling society to assess the quality of justice meted out in the courts. Without such scrutiny and criticism, abuses “may flourish undetected”. 26 Moreover, the law that judges expound, interpret and apply in the course of resolving a dispute has an impact that goes beyond the parties, as judicial reasoning forms legal precedents that bind the public. In so far as the principle of open justice reassures the public that justice is administered fairly, impartially and in accordance with the law, it creates confidence in the administration of justice, which is critical for preserving the rule of law and the stability of society. 27 In the event that the public are not happy with what they have observed, they are free to criticise the courts and agitate for change. 28 When applications are made to a court to sit in camera or to issue a non-publication order, media organisations are invariably the entities that assume responsibility for presenting arguments to the court as to why it should remain open or should not suppress the publication of information. Interestingly, media organisations perceive the justifications for open justice differently to judges and jurists. They do not argue for open justice on the basis that it elevates judicial performance, improves fact finding or benefits the parties – after all, it is neither the aim nor the function of the media to improve the judicial system. Rather, the media argue cases on the basis that the public have a right to know what transpires in the courts; thus the focus is on the relevance of the subject matter of the case to the public. These elements are not necessarily at odds, since it is the publicity given to the courts that produces the discipline which is said to enhance the quality of justice; open justice is simply the means to this end. 29 But it is the means with which the media are concerned, not the effect. The media’s preoccupation with the public’s right to know – and the concomitant proposition, that the media has a right to “make known” – has resulted in open justice being put to the court as an aspect of the media and the public’s right to freedom of expression. 22 23 24 25 26 27

28

29

R v Legal Aid Board; Ex parte Kaim Todner [1999] QB 966 at 977. J Burrows and U Cheer, Media Law in New Zealand (5th ed, 2005), p 326. Richmond Newspapers Inc v Virginia 448 US 555 at 571 (1980); New South Wales Law Reform Commission, Contempt by Publication, Discussion Paper 43 (2000), para [10.5]. Herald & Weekly Times Ltd v Magistrates’ Court of Victoria [1999] 3 VR 231 at 248. Russell v Russell (1976) 134 CLR 495 at 520. See, eg, R v Tait (1979) 46 FLR 386 at 402; In Re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593 at 607-608; Hogan v Hinch (2011) 243 CLR 506 at 530; Moti v R (2011) 245 CLR 456 at 495. Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322 at 335; Harman v Secretary of State for the Home Department [1983] 1 AC 280 at 316 (“justice is done in public so that it may be discussed and criticised in public”). West Australian Newspapers Ltd v Western Australia [2010] WASCA 10 at [30]; Hogan v Hinch (2011) 243 CLR 506 at 530.

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The proposition that open justice is a manifestation of free speech is readily accepted in countries such as the United Kingdom, the United States and Canada which each have a bill of rights which confers a constitutionally protected right to freedom of expression. 30 However, the Australian judiciary have been reluctant to embrace this wider purpose of open justice. 31 In Australia the principle remains primarily a mechanism for enhancing the quality of justice meted out in the courts and for promoting public confidence in that system. This narrower conception of open justice is evident in Re Hogan; Ex parte West Australian Newspapers Ltd, where the Western Australia Court of Appeal decried the “tendency to identify the principle … as the ultimate object, divorced from the rationale for its existence” 32 It remains to be seen whether Australian courts will continue to anchor open justice to the administration of justice or whether this will change over time, at least in jurisdictions that have enacted legislation that enshrines freedom of expression as a human right. 33 For all of its benefits, open justice comes at a cost. These costs – which might include loss of privacy and reputation; embarrassment, distress and shame; financial harm; threats to personal and national security; a negative impact on rehabilitation; and loss of the presumption of innocence – have always been present, but have become more significant with the advent of the internet, which enables the rapid dissemination of information on a global scale. 34

Role of the media in open justice [5.30] Although courts are required to conduct their business in open view, the reality is that very few people attend court proceedings. 35 The great majority of the public rely on the media to provide them with reports of what has taken place in open court. In performing this role, the media act as surrogates for the public and give substance to the principle of open justice. Indeed it has been stated that for the courts to be public in modern times means more than that their doors are physically open. In modern society, court processes are truly public only if they are able to be published in the media. 36 Today, courts are forthright in acknowledging the 30 31

32 33 34

35 36

See, eg, R (on the application of Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] 3 WLR 554 at 573; A v British Broadcasting Corporation (Scotland) [2014] UKSC 25 at [26]. Herald & Weekly Times Ltd v Magistrates’ Court of Victoria [1999] 3 VR 231 at 248; John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 at 525. See also Harman v Secretary of State for the Home Department [1983] 1 AC 280 at 303. But see, contra, Tuqiri v Australian Rugby Union Ltd [2009] NSWSC 781 at [4]. Re Hogan; Ex parte West Australian Newspapers Ltd (2009) 41 WAR 288 at 296. Such legislation has been enacted in the Australian Capital Territory and Victoria: Human Rights Act 2004 (ACT); Charter of Human Rights and Responsibilities Act 2006 (Vic). For a more in depth discussion of these costs see J Jaconelli, Open Justice: A Critique of the Public Trial (2002); McLachlan (2003) 8(1) Deakin Law Review 1; C Davis, “The Injustice of Open Justice” (2001) 8 James Cook University Law Review 92. R v Davis (1995) 57 FCR 512 at 513-514. See L Moran, “Mass-mediated “Open Justice”: Court and Judicial Reports in the Press in England and Wales” (2014) 34(1) Legal Studies 143 at 144. Director of Public Prosecutions v F (unreported, Vic Supreme Court, Cummins J, 30 November 1995); Herald & Weekly Times Ltd v Medical Practitioners Board of Victoria [1999] 1 VR 267 at 278-279.

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media’s contribution to open justice. 37 Judges have described the media as “the eyes and ears of the general public”, 38 the right to report as “an adjunct of the right to attend”, 39 and the presence of reporters in court as “indispensable”. 40 However, it must be borne in mind that only those proceedings which are regarded as newsworthy will attract media attention and even then there is a “necessary reductionism” in media reporting given “the constraints of time and space”. 41 Moreover, the notion that the media attend courts on behalf of the public has not gone unchallenged. The point has been made that the media are under no obligation to serve the public interest and their presence in court is equally explicable on the basis that it furthers their own commercial interests. 42 Notwithstanding their pivotal role in advancing the principle of open justice, the media have no greater common law right to attend and report court proceedings than any other member of the public. 43 However, Australian courts have become far more proactive in assisting the media in their task of accurately informing the public about judicial proceedings by implementing measures to ensure that information is made accessible to reporters. For example, in many courtrooms, special seating is reserved for the media in which they are provided with facilities for the taking of notes 44 and new courts have been designed with the needs of the electronic media in mind. 45 Most courts have public information officers, one purpose being to establish effective channels of communication between the courts and the media. 46 Many courts have relaxed their policy on the tape recording of proceedings by 37

Not all judges extol the virtues of publicity and many are still hold reservations about the media. For a discussion of the possible causes of the tension that frequently exists between the courts and the media see Justice R D Nicholson, “The Courts, the Media and the Community” (1995) 5 Journal of Judicial Administration 5; E Handsley, “The Media and Public Misconceptions About the Judiciary” (2001) 6 Media and Arts Law Review 97.

38 39 40

Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 3 WLR 776 at 183. Herald & Weekly Times Ltd v Medical Practitioners Board of Victoria [1999] 1 VR 267 at 279.

41

42 43

44

45 46

R v Felixstowe Justices; Ex parte Leigh [1987] 1 QB 582 at 591. See also R v Denbigh Justices; Ex parte Williams [1974] 1 QB 759 at 765. Justice PD Cummins, “The Benthamite Principle of Open Courts” (Paper presented at The Courts and the Media Conference, Centre for Media and Communications Law, Melbourne Law School, 27 July 2007). The speech is reproduced in (2007) 142 Victorian Bar News 53. C Davis, “The Injustice of Open Justice” (2001) 8 James Cook University Law Review 92 at 99-100. David Syme & Co Ltd v General Motors-Holden’s Ltd [1984] 2 NSWLR 294 at 310; Re Andrew Dunn and The Morning Bulletin Ltd [1932] St R Qd 1 at 16-17. Special rights and privileges may be conferred on the media by legislation. Media representatives are not entitled to this special accommodation as of right and have no grounds for complaint if ordered by the trial judge to sit in the public gallery: Re Andrew Dunn and The Morning Bulletin Ltd [1932] St R Qd 1. J Johnston, “Court on Camera: Television Coverage of Australian Legal Proceedings” (2001) 100 Media International Australia 115 at 120. Public information officers are also known by numerous other titles. For a discussion of the role of a public information officer see J Johnston, “Are the Courts Becoming More Media Friendly?” (1999) 21(1) Australian Journalism Review 109; J Johnston, “Public Relations in the Courts” (2001) 28(1) Australian Journal of Communication 109; J Nelson, “The Role of the Public Information Officer in New South Wales Courts” (1995) 5 Journal of Judicial Administration 34; Justice Teague, “The Courts, the Media and the Community – a Victorian Perspective” (1995) 5 Journal of Judicial Administration 22; New South Wales Law Reform

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journalists and on permitting cameras in the courtroom. 47 Courts are increasingly permitting journalists to use live, text based communications from inside the courtroom. 48 Other initiatives include publishing media handbooks and guidelines on court reporting for journalists, 49 placing judgment summaries and sentencing remarks online 50 and maintaining a notification system which is designed to ensure that the existence and terms of non-publication orders are brought to the attention of media organisations. 51 The High Court makes transcripts of its proceedings available on its website. It is also becoming more commonplace for judges to give interviews to the media. 52 The internet and social media have provided courts with a means of cultivating a direct relationship with the public. Judgments, judgment summaries, sentencing remarks and webcasts of cases are as accessible to the public as they are to the traditional media. 53 Some courts can be followed on Twitter and Facebook. Although information about the courts is becoming less mediated, it is likely that the majority of the population will continue to rely on media generated reports for their information about the judicial system, at least in the short term. However, the decline in the circulation and profitability of newspapers has resulted in a significant decrease in the number of dedicated court reporters, 54 and this may have significant implications for the role of the media in open justice in the future.

Commission, Contempt by Publication, Discussion Paper 43 (2000), paras [1.50]-[1.53], [1.57]-[1.61]; J Johnston, “Communicating Courts: A Decade of Practice in the Third Arm of Government” (2005) 32(3) Australian Journal of Communication 77; J Johnston, “The Court-Media Interface: Bridging the Divide” (2008) 30(1) Australian Journalism Review 27. 47 48

These issues are discussed in [5.590]-[5.630]. See [5.640].

49

See, eg, South Australia Courts Administration Authority, A Handbook for Media Reporting on South Australian Courts; Supreme Court of Victoria, Media Policies and Practices. Judgment summaries are designed to give the media the thrust of the judgment and are especially helpful where a case is large and complex. The High Court also places summaries of cases to be heard by the Full Court online: see www.highcourt.gov.au.

50

51 52

53 54

Not all courts adopt all of these measures. Justice Teague, “The Courts, the Media and the Community – a Victorian Perspective” (1995) 5 Journal of Judicial Administration 22; S Parker, Courts and the Public (Australian Institute of Judicial Administration, 1998), p 91; J Johnston, “Public Relations in the Courts” (2001) 28(1) Australian Journal of Communication 109 at 116. This represents a departure from the strict approach to extra curial statements taken by Lord Chancellor Kilmuir in 1955, which became known as the “Kilmuir Rules”. The circumstances in which it is considered appropriate for judges to write for a newspaper or appear on radio or television are laid down for the guidance of judges in Australian Institute of Judicial Administration, Guide to Judicial Conduct (2nd ed, 2007), paras [5.6]-[5.7]. Some of the dangers associated with judges participating in public debate are identified in Justice K Hayne, “Let Justice be Done Without the Heavens Falling” (2001) 27 Monash University Law Review 12. See [5.650]. See, eg, D Banks, “Court Reporting is a Dying Art – and Lawyers Should be Worried”, The Guardian (online), 19 October 2010 http://www.theguardian.com/law/2010/oct/19/court-reporting-dying-art-lawyers#start-ofcomments; Hon M Warren, Chief Justice of Victoria, “Open Justice in the Technological Age”’ (Speech delivered at the Redmond Barry Lecture, State Library, Melbourne, 21 October 2013).

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Sources of open justice [5.40] The principle of openness of judicial proceedings has been adopted and expounded in innumerable cases, the most significant being the decision of the House of Lords in Scott v Scott. 55 It is also protected by Art 14(1) of the International Covenant on Civil and Political Rights to which Australia is a party. 56 Although not incorporated into Australia’s domestic law, this covenant has a bearing upon the interpretation of statutory rights and obligations and serves as a “powerful influence” on courts in developing the common law. 57 The principle of open justice is so fundamental that it has been described as being of constitutional significance. 58 However, in Australia, the source and extent of its constitutional status remains uncertain. Unlike other liberal democracies, Australia does not have a bill of rights that protects open justice through an express constitutional right to freedom of expression or through a right to a fair and public trial. However, there are two sources of constitutional rights that impact on open justice. The first is Chapter III of the Commonwealth Constitution, which deals with federal judicial power. In Russell v Russell, the High Court, by majority, struck down a provision of the Family Law Act 1975 (Cth) that required, inter alia, that all proceedings in State courts exercising federal jurisdiction under that Act must be heard in closed court. The majority held that Parliament could not validly require the State courts to sit in camera invariably; to do so was to alter the nature of a court. 59 However, Gibbs J expressed the view that Parliament could have invested the State courts with a discretion to sit in camera in appropriate cases, as this would not have conferred on the court a function that is inconsistent with its essential characteristics. 60 In Hogan v Hinch it was argued that an implication is to be drawn from Chapter III that “all State and federal courts must be open to the public and carry out their activities in public”. The argument was put in the context of a challenge to the validity of s 42 of the Serious Sex Offenders Monitoring Act 2005 (Vic), which conferred power on Victorian courts to order that certain information in proceedings concerning the imposition of post-custodial supervision orders on serious sex offenders not be published (including information that would enable an offender to be identified) if the court deemed it to be in the public interest to do so. The High Court upheld the validity of s 42, 55 56

57 58

59

60

Scott v Scott [1913] AC 417. The case was immediately followed in Australia – Dickason v Dickason (1913) 17 CLR 50 and Holt v Willing (1913) 9 Tas LR 70 – and has since been re-affirmed on countless occasions. Article 14(1) provides that “All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law” (emphasis added). Hon JJ Spigelman, “Seen to be Done: The Principle of Open Justice – Pt I” (2000) 74 Australian Law Journal 290 at 292. The concern of Article 14, however, is on protection of the litigant not on the rights of the media. Hon JJ Spigelman, “Seen to be Done: The Principle of Open Justice – Pt I” (2000) 74 Australian Law Journal 290 at 293. See also John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 181 ALR 694 at 703; Re Application by Chief Commissioner of Police (Vic) (2005) 214 ALR 422 at 448. See also: R (on the application of Guardian News & Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420 at [2]; A v British Broadcasting Corporation (Scotland) [2014] UKSC 25 at [23], [27]. Russell v Russell (1976) 134 CLR 495 at 520, 532. See also: Grollo v Palmer (1995) 184 CLR 348 at 379. The High Court’s conclusion in Russell v Russell did not affect the validity of the section in relation to federal courts created under s 71 of the Constitution: Russell v Russell at 507 per Barwick CJ. Russell v Russell (1976) 134 CLR 495 at 520.

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holding that Ch III does not require in absolute terms that all State and federal courts must always be open to the public. The Court rejected a further argument that s 42 impermissibly conferred upon Victorian courts a function which violated their institutional integrity, contrary to the implied requirements of Chapter III. This is because, in using the public interest as the criteria, s 42 was not so indefinite as to be “insusceptible of strictly judicial application” or as to “impair impermissibly the character of the State courts as independent and impartial tribunals and thus to render them inappropriate repositories of federal jurisdiction”. 61 The second potential source of constitutional rights pertaining to open justice is the implied freedom of political communication. To strike down a particular law for infringing the implied freedom it must be shown that the law burdens freedom of political communication about government or political matters and that it is not reasonably and appropriately adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. 62 Several cases have dealt with the issue of whether communication about the courts and their judgments constitutes government or political communication, 63 and judges remain divided over whether the communication must relate to acts or omissions of the legislature or executive government. 64 An argument based on the implied freedom was rejected in Hogan v Hinch on the basis that s 42 was reasonably and appropriately adapted to serve a legitimate end in a manner which was compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. 65

The ambit of open justice [5.50] Open justice is consistently denoted as a principle, rather than a free standing right. 66 This label is used in order to emphasise that open justice is a flexible standard rather than an “inflexible dictate” 67 or an “absolute” 68 which is rigidly and automatically applied whenever certain conditions are met. As a principle, open justice “is of significance in guiding the court in 61

Hogan v Hinch (2011) 243 CLR 506 at 551. In reaching this decision, the Court rejected an argument by Hinch that a court’s discretion could be confined only by reference to the administration of justice and not by reference to the public interest.

62 63

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Coleman v Power (2004) 220 CLR 1. See [6.780].

64

See: S Rares, “How The Implied Constitutional Freedom Of Communication On Government And Political Matter May Require The Development of the Principles of Open Justice” (Paper presented at Judicial Conference of Australia Colloquium 2007, Sydney, 7 October 2007), at http://www.fedcourt.gov.au/aboutct/ judges_papers/speeches_raresj4.html.

65

For further discussion of constitutional issues in the context of open justice see: John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 181 ALR 694; John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 at 532-533; R v Lodhi [2006] NSWSC 571.

66

John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 at 521. It has been cogently argued that open justice is best described as a set of principles that mediate between the courts and the public and that facilitate other liberal democratic values such as the right to know the law: E Cunliffe, “Open Justice: Concepts and Judicial Approaches” (2012) 40(3) Federal Law Review 385 at 389.

67 68

West Australia Newspapers Ltd v Western Australia [2010] WASCA 10 at [30]. Hogan v Hinch (2011) 243 CLR 506 at 530.

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determining a range of matters”. 69 Indeed, it “informs and energises many areas of the law” 70 including “the most fundamental aspects of our procedure” and “is the origin, in whole or in part, of numerous substantive rules”. 71 However, the significance and weight to be accorded to the principle varies according to the circumstances and, subject to statutory provisions, “it is for the courts to determine its ambit”. 72 For example, while the principle of open justice applies at all stages of a proceeding, it does not carry the same force when a case has only been the subject of directions hearings, which are largely of an administrative nature, as it does when a case is the subject of a genuine contested hearing in open court. 73 Accordingly, orders made on an interlocutory basis may need to be considered afresh when the case comes on for trial. 74 It has been held that the principle is disengaged when a proceeding is withdrawn from the court by the plaintiff without any adjudication on its merits. 75 Judges also differ in their assessment of the strength of the principle relative to other competing principles that pull in an opposite direction. Courts generally appeal to the rationale for open justice to discern the situations where it should exert the most influence. 76 There are three areas of the law which have been informed by the principle of open justice to a very significant extent; indeed, they are at the heart of what open justice means. 77 The first and foremost is that the doors of the courts are open to the public, including the media. 78 In Dickason v Dickason the High Court held that “one of the normal attributes of a court is publicity, that is, the admission of the public to attend proceedings”. 79 It remains to be seen how the open court principle will be applied in the emerging era of the “eCourt” where judicial 69 70 71 72 73

74 75

76 77

78

79

John Fairfax Publications Pty Ltd v Ryde Local Court [(2005) 62 NSWLR 512 at 521. John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344 at 352. Hon JJ Spigelman, “Seen to be Done: The Principle of Open Justice – Pt I” (2000) 74 Australian Law Journal 290 at 292. A v British Broadcasting Corporation (Scotland) [2014] UKSC 25 at [27]. Anon 2 v XYZ [2008] VSC 466; PPP v QQQ as Representative of the Estate of RRR [2011] VSC 186. In this respect the position is similar to that which prevails in relation to documents that have been lodged with the court, but which have not been the subject of a hearing in court; in both cases, the application of the principle of open justice is limited. PPP v QQQ as Representative of the Estate of RRR [2011] VSC 186 at [38]. PPP v QQQ as Representative of the Estate of RRR [2011] VSC 186 at [55] (court refused to discharge or vary a pseudonym order, made before the proceeding was commenced, after the proceeding was withdrawn, on the basis that the administration of justice was no longer being engaged; accordingly, there could not be prejudice to the administration of justice). West Australian Newspapers Ltd v Western Australia [2010] WASCA 10 at [30]. Perhaps they are best described as three practices or activities that are encompassed by the term “open justice”: E Cunliffe, “Open Justice: Concepts and Judicial Approaches” (2012) 40(3) Federal Law Review 385 at 388. It has been observed that the ordinary rule that court proceedings are conducted in public is frequently referred to interchangeably as the principle of open justice. However, the Western Australia Court of Appeal cautioned against equating the principle of open justice with the ordinary rule that courts conduct their proceedings in public, preferring to describe the latter as a manifestation of the former: Re Hogan; Ex parte West Australian Newspapers Ltd (2009) 41 WAR 288 at 295-296. Dickason v Dickason (1913) 17 CLR 50 at 51. It has already been noted that in Russell v Russell, the notion that Australian courts conduct their proceedings “publicly and in open view” was described as “an essential aspect of their character”: Russell v Russell (1976) 134 CLR 495 at 520.

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proceedings may be conducted online. 80 The second aspect of open justice is that the evidence and information communicated to the court is communicated publicly. 81 This ordinarily means that persons who appear in court as parties or as witnesses do so under their real names, not under a pseudonym. 82 Thirdly, the right to report is a corollary of the right to attend. 83 Accordingly, nothing should be done to discourage those who have availed themselves of their entitlement to attend proceedings to report to the public at large what they have seen and heard. 84 In the vast majority of cases these three manifestations of the principle of open justice permit the media to attend and report legal proceedings. However, the notion that the courts are open and may be freely reported can be displaced by common law and statutory exceptions. At common law, these exceptions are a concession to the fact that the principle of open justice can sometimes conflict with the wider public interest in the proper administration of justice, and on those occasions, it must yield to the latter. The statutory exceptions may subject open justice to other public interests. A large part of this chapter is devoted to identifying these exceptions and to considering the circumstances in which they prevent the media from either attending or reporting a legal proceeding. The chapter then discusses the extent to which the media have been able to utilise the principle of open justice to support the taping, photographing and televising of legal proceedings and to justify the use of live, text based communications from the courtroom. This chapter will then consider two other areas of law in which the influence of open justice in Australia is evident, but less imperative. The first is the law that governs non-party access to documents on the court record. Such access is becoming more critical as court cases become less focussed on the spoken word and more reliant on written evidence and submissions. In Australia, the notion that court rooms have “open doors” has not been matched by a complementary notion that court registries have “open books”. 85 In fact, the common law position is that the court record is not a public register that can be searched as of right. 86 Nevertheless, the principle of open justice has played a role in the development of the law on this issue and has influenced the resolution of disputes over access to court 80 81 82 83

84

85 86

For some interesting speculation on this issue see: Hon Chief Justice Warren, “Embracing Technology: The Way Forward for the Courts” (2015) 24 Journal of Judicial Administration 227. Attorney-General (UK) v Leveller Magazine Ltd [1979] AC 440 at 450. Hume v The Council of the King’s School [2010] NSWSC 186 at [15]. John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476-477; Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 43; John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344 at 353; Hogan v Hinch (2011) 243 CLR 506 at 532. Attorney-General (UK) v Leveller Magazine Ltd [1979] AC 440 at 450. This ordinarily includes the right to publish the names of the parties and witnesses and an account of the evidence, whether testimonial, documentary or physical: Hogan v Hinch (2011) 243 CLR 506 at 532. This is to be contrasted with the United States, where the public enjoy a common law right to inspect court records and documents: Nixon v Warner Communications Inc 435 US 589 at 597 (1978). Smith v Harris [1996] 2 VR 335; R v Clerk of Petty Sessions, Court of Petty Sessions Hobart; Ex parte Davies Brothers Ltd (1998) 8 Tas R 283; Herald & Weekly Times Ltd v Magistrates’ Court of Victoria [1999] 3 VR 231; (2000) 2 VR 346; John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512. The same common law position has prevailed in New Zealand and the United Kingdom: R Lucas & Son (Nelson Mail) Ltd v O’Brien [1978] 2 NZLR 289; Dobson v Hastings [1992] Ch 394; GIO Personal Investment Services

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documents, particularly where the documents in question have been deployed in a proceeding. 87 The second area of law in which open justice plays a more tangential role concerns the use that can be made by a litigant of documents that have been obtained from the other party by means of a compulsory court process such as discovery. Ordinarily, a document received under such circumstances cannot be used for collateral or ulterior purposes, including circulation to the media. However, some judges have utilised the principle of open justice to ensure that once these documents have been deployed in legal proceedings held in open court, or adduced into evidence, the recipients of such documents are released from their obligation regarding collateral user. Finally, there are areas of the law where open justice has been marginalised. The most obvious example is in regard to the jury system. In addition to the fact that jurors do not provide reasons for their verdict, there is a statutory prohibition on the publication of any information that would identify a juror or reveal jury deliberations. Indeed, the jury system remains shrouded in secrecy, making it the antithesis of open justice. This chapter will conclude with a discussion of open justice and juries.

Common law exceptions to the principle of open justice Conducting proceedings in camera [5.60] Although it is expected that judges will “strain to the utmost” to hear proceedings in public, 88 at common law, the principle that justice must be administered in open court is subject to certain strictly defined and sparingly allowed exceptions. 89 In the absence of legislation authorising closure, the power to close a court is part of a superior court’s inherent jurisdiction and an inferior court’s implied jurisdiction. 90 Given that the media enjoy no greater right to attend judicial proceedings than other members of the public, reporters are usually not permitted to be present at proceedings which are properly heard in camera. 91 Judicial opinions vary as to the circumstances in which it is proper for a court to sit in camera. However, it is possible to make some broad generalisations. Firstly, the closure of a

87 88 89 90

91

Ltd v Liverpool and London Steamship Protection and Indemnity Association Ltd [1999] 1 WLR 984; Television New Zealand Ltd v The Queen [2000] NZCA 354; Dian AO v Davis Frankel & Mead [2005] 1 All ER 1074. However, the position in the United Kingdom has recently undergone significant liberalisation: see R (on the application of Guardian News & Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, which is discussed in [5.670]. John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 at 525. David Syme & Co Ltd v General Motors-Holden’s Ltd [1984] 2 NSWLR 294 at 299. McPherson v McPherson [1936] AC 177 at 200; David Syme & Co Ltd v General Motors-Holden’s Ltd [1984] 2 NSWLR 294 at 300. John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1992) 26 NSWLR 131 at 160; Hogan v Hinch (2011) 243 CLR 506 at 531. The difference between inherent and implied jurisdiction is explained in [5.100]. Legislation might confer a right on the news media to be present in a case that is otherwise conducted in camera.

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court is a wholly exceptional occurrence. 92 Secondly, the power to hear a matter in camera does not rest on the unqualified discretion of the judge or on his or her individual view that it is desirable that a hearing should take place in private. 93 Rather, the matter is regarded as one of principle. The weight of authority favours the view that a court can be closed to the public only where closure is necessary (as opposed to expedient) in the interests of the administration of justice in the proceeding. This exception is the outcome of the fundamental principle that the chief object of courts is to ensure that justice is done. 94 It therefore follows that the general rule as to publicity, which is only a means of achieving this end, 95 can be displaced if this is necessary to secure a just proceeding. The view that a proceeding can be conducted in camera only if justice cannot otherwise be administered is generally attributed to Scott v Scott, although this view was not adopted by a clear majority of the judges in that case. 96 Nevertheless, the principle is often referred to as the Scott qualification, 97 and has been followed in a plethora of Australian cases. 98 Not all cases in which courts have been closed to the public can be explained on the basis that closure was necessary in the interests of justice in those proceedings. Other possible bases upon which the principle of open justice may be justifiably restricted are discussed in [5.280]. Finally, the onus of persuading a court that the public should be excluded rests upon the party who is seeking to displace the principle of open justice. 99 Generally, cogent proof must be put to the court as to why an order derogating from open justice is necessary. Mere belief on the part of a party that the order is necessary will not suffice. 100 However, in certain cases a court will consider itself entitled to act on its own experience and draw appropriate inferences. 101 92 93 94 95 96

John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344 at 352; Bank Mellat v Her Majesty’s Treasury (No 1) [2013] UKSC 38 at [2]. Scott v Scott [1913] AC 417 at 435, 438 (per Viscount Haldane), 445 (per Earl Loreburn). Scott v Scott [1913] AC 417 at 437-438 (per Viscount Haldane). Hogan v Hinch (2011) 243 CLR 506 at 530; Rinehart v Welker [2011] NSWCA 403 at [87].

99

Viscount Haldane and Earl Loreburn were clearly of the view that a case can be heard in camera only if justice cannot otherwise be done, although they envisaged that the application of the exception would be exceptional. The Earl of Halsbury declared himself inclined to agree with the proposition that a case can be heard in camera “if justice cannot otherwise be done”, but was reluctant to affirm its correctness for fear that individual judges might apply it too readily, in a way that the law does not warrant. He therefore neither affirmed nor denied the existence of a judicial discretion to sit in camera: at 442-443. Lord Shaw did not find such a general rule. He described any encroachment upon the principle of open justice as impairing the rights, safety and freedom of the citizen. Lord Atkinson did not consider whether there is a general rule that in exceptional circumstances a judge can hear a matter in camera. See, for example, Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 345; John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1992) 26 NSWLR 131 at 164. See, eg, David Syme & Co Ltd v General Motors-Holden’s Ltd [1984] 2 NSWLR 294 at 299-300, 307, 310; Ex parte Queensland Law Society Incorporated [1984] 1 Qd R 166 at 169; Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 52; John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476, 478; AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2009] NSWSC 1290 at [2]. Scott v Scott [1913] AC 417 at 438.

100 101

ABC v D1; Ex parte The Herald and Weekly Times Ltd [2007] VSC 480 at [71]. ABC v D1; Ex parte The Herald and Weekly Times Ltd [2007] VSC 480 at [71].

97

98

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Following is a list of established circumstances in which it has been held to be permissible for a court to sit in camera. Most are simply illustrations of the principle that a court can be closed to the public only when justice cannot otherwise be administered in the case. Others arguably represent a broader basis for closure. Whilst some cases maintain that the list is not exhaustive, 102 other cases suggest that the inherent power of a court does not extend to the creation of new occasions for the hearing of cases in camera. 103 The first circumstance relates to the control of public attendance and order in the court. The principle of open justice is subject to the availability of accommodation in the courtroom and to the reasonable regulation by those in authority of a crowd of persons who may by accident or design bar the entrance to the court. 104 Power to exclude in these instances is necessary for the due administration of justice, as a court cannot discharge its business unless those in authority are able to ensure that access to the courtroom is available to those whose presence is essential to the conduct of the proceedings. 105 A court has power not only to remove a disruptive person from the court, but to remand that person in custody in order to continue his or her exclusion while the court decides whether further action should be taken against that person. 106 Secondly, if a public hearing would destroy the subject matter of the action or thwart the relief being sought, it is proper for a court to sit in camera, as in this situation it may be that justice could not be done at all if it had to be done in public. Secrecy is frequently the essence of the action in cases involving trade secrets, secret processes or documents, or other confidential information 107 or where injunctive relief is sought to prohibit the publication of imputations said to be sourced from a breach of confidence. 108

102

103

104

105 106 107

108

Australian Broadcasting Commission v Parish (1980) 43 FLR 129 at 132; Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 347; John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1992) 26 NSWLR 131 at 148; Attorney-General (NSW) v Nationwide News Pty Ltd (2007) 73 NSWLR 635 at 640; Commissioner of Police (NSW) v Nationwide News Pty Ltd (2008) 70 NSWLR 643 at 648; P v D1 (No 3) [2010] NSWSC 644 at [14]-[19]; Hogan v Hinch (2011) 243 CLR 506 at 531 (although the High Court did not regard the categories as closed, it did state that they will not be lightly extended). John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 181 ALR 694 at 707, 723; John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344 at 353; R v Lodhi [2006] NSWSC 596 at [10]. Of course it is always open to parliament to create new exceptions, subject to any constitutional constraints: R v Lodhi [2006] NSWSC 596 at [10]. Ex parte Tubman; Re Lucas (1970) 92 WN (NSW) 520 at 543. See also R v Governor of Lewes Prison; Ex parte Doyle [1917] 2 KB 254; R v Denbigh Justices; Ex parte Williams [1974] 1 QB 759 at 764-765; Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 54. Ex Parte Tubman; Re Lucas (1970) 92 WN (NSW) 520 at 544. O’Brien v Northern Territory [2002] NTSC 10. Scott v Scott [1913] AC 417 at 437, 445, 450, 483; Australian Broadcasting Commission v Parish (1980) 43 FLR 129 at 132; Versace v Monte [2001] FCA 1565; Seven Network (Operations) Ltd v Warburton (No 1) [2011] NSWSC 385. In such cases the court’s closure operates to protect privacy and confidentiality, but only of a limited kind. AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2009] NSWSC 1290; Ashton v Pratt [2011] NSWSC 1092 at [3].

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Example

R v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society [5.70] R v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society [1984] QB 227 The Chief Registrar of Building Societies made a decision which effectively prevented a building society from continuing to conduct its business. The Society applied for judicial review of the decision. The application and subsequent appeals were heard in camera because it was feared that if publicised, the loss of public confidence in the Society would be so great that the Society would be forced to close, whether or not the Registrar’s orders were ultimately quashed. Thus the Society would have been effectively deprived of the relief to which it might have been entitled.

[5.80] In Hogan v Australian Crime Commission, the High Court held that a mere assertion that certain information is “inherently confidential” will not suffice to justify a non-publication order; it is necessary to demonstrate that specific prejudice to the administration of justice will or might flow from its disclosure. 109 Interests of confidentiality can form the basis for an order curtailing open justice only where the information concerned has value as an asset and would be seriously compromised by disclosure. This generally means that the person seeking closure must have property in the nature of confidential information or trade secrets. 110 Thirdly, cases concerning wards of the court and mentally ill persons are commonly heard in camera. In these cases, the primary function of the court is to guard and protect the interests of the ward or mentally ill person. The court’s jurisdiction is in this respect parental and administrative; the disposal of controverted questions is an incident only in the jurisdiction. 111 In order to discharge its paramount duty, which is the care of the ward or the mentally ill person, it may be necessary for the court to exclude the public. 112 Proceedings can also be conducted in camera in certain circumstances of national security. 113 Finally, the open justice principle has not traditionally applied to matters that are properly dealt with in chambers. 114 However, in Hodgson v Imperial Tobacco Ltd 115 Lord Woolf MR, whilst agreeing 109 110

111

112 113 114

Hogan v Australian Crime Commission (2010) 240 CLR 651 at 666. Parties should therefore bear in mind that the consequence of a forensic decision to place certain documents in evidence may be their disclosure. Rinehart v Welker [2011] NSWCA 403 at [113]. Young JA did not exclude the possibility that there may be a situation where interests of confidentiality short of a property right might be sufficient to justify a suppression order, but opined that it would be an extremely unlikely scenario: at [115]. Scott v Scott [1913] AC 417 at 437 per Viscount Haldane. In Hogan v Hinch (2011) 243 CLR 506 French CJ explained that in this situation it is the nature of the function of the court that qualifies the application of open justice: at 532. Scott v Scott [1913] AC 417 at 437, 441-442, 445, 462, 482-483; McPherson v McPherson [1936] AC 177 at 200; Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 54. Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 54; R v Lodhi (2006) 65 NSWLR 573 at 584; Hogan v Hinch (2011) 243 CLR 506 at 532. Scott v Scott [1913] AC 417 at 445 per Earl Loreburn.

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that the public has no right to attend hearings in chambers because of the nature of the work transacted there and the physical restrictions on the room available, held that permission to attend should be granted, if requested, to the extent that this is practical. If those who wish to attend cannot be accommodated, the judge should consider adjourning the matter into open court to the extent that this is practical or permit a representative of the media to attend the hearing in chambers. In any event, since what transpires in chambers is not confidential, 116 information about what occurs in chambers can, and in the case of a judgment or order, should be made available to the public if requested. It is not a contempt for the media to publish information about proceedings in chambers provided the court has not made a non-publication order and the publicity does not interfere with the administration of justice. There is no consensus as to whether a court can close if there is cogent evidence that, if the proceedings were conducted in public, persons might reasonably be deterred from instituting or defending proceedings or witnesses would not testify. 117 This consideration is more likely to move the court to make a concealment and/or non-publication order suppressing names than to sit in camera. Paradoxically, if courts refuse to curtail open justice in these circumstances, “the deterrent effect of public disclosure may diminish the range of sources available to the courts” because it may cause actual or prospective litigants to not bring their dispute before the courts or to “redact or withhold confidential information whenever possible”. 118 It is clear that the following circumstances do not justify closure of the court: the unsavoury nature of the evidence, 119 considerations of public decency and morality, 120 the fact that a victim, a party or a witness would suffer embarrassment, distress, ridicule, invasion of privacy or unwanted publicity if the case were heard in open court, 121 or a desire to prevent the reputation or business affairs of a professional person from being damaged by publicity about 115 116

Hodgson v Imperial Tobacco Ltd [1998] 2 All ER 673. Proceedings in chambers were described by Lord Woolf MR as “private”, in the sense that the public do not have admission as of right, but not “secret” in the sense that an in camera hearing is secret. See also: Martin v Trustrum [2003] TASSC 50 at [2].

117

Scott v Scott [1913] AC 417 at 484-485, B v Attorney-General (UK) [1965] 3 All ER 253 and R v Tait (1979) 46 FLR 386 at 404 suggest that this does not justify closure, but there are suggestions to the contrary by Earl Loreburn: Scott v Scott [1913] AC 417 at 446. J Bannister, “The Paradox of Public Disclosure: Hogan v Australian Crime Commission” (2010) 32 Sydney Law Review 159 at 172. Scott v Scott [1913] AC 417 at 438; R v Hamilton (1930) 30 SR (NSW) 277. Scott v Scott [1913] AC 417 at 447. R v Tait (1979) 46 FLR 386; John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1991) 26 NSWLR 131 at 142; J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10 at 45; Herald & Weekly Times Ltd v Magistrates’ Court [1998] 2 VR 672; R v Legal Aid Board; Ex parte Kaim Todner [1999] QB 966; DPP (Cth) v Ho (Ruling No 2) [2009] VSC 388 at [9]; Herald & Weekly Times Ltd v Gregory Williams (formerly identified as VAI) (2003) 130 FCR 435 at 444; Y v University of Western Australia [2006] FCA 466 at [40]. Not all judges share this view. In Nationwide News Pty Ltd v District Court (NSW) (1996) 40 NSWLR 486, Mahoney JA noted that the benefit of open justice was often obtained at the expense of those who are injured, hurt, embarrassed and distressed by unrestricted publication, and advocated that the law should provide an exception to the open justice principle where it would cause unacceptable harm, hurt and distress to individuals: at 494-496. See also E v Australian Red Cross Society (1991) 27 FCR 310 at 313.

118 119 120 121

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the proceedings. 122 Furthermore, judicial proceedings cannot be closed by the consent of the parties. 123 This is because more is at stake than the individual rights of the parties; the public have a general interest which cannot be excluded at the whim of litigants. 124 Even where a case has been properly heard in camera, it does not follow that the judgment and orders of the court can also be withheld from disclosure. In fact, in David Syme & Co Ltd v General Motors-Holden’s Ltd, 125 the New South Wales Court of Appeal found it almost inconceivable to contemplate a case in which there should be a total non-disclosure of the reasons and the terms of the order as, unlike a hearing, which is incapable of being totally controlled, 126 a judgment can be structured to reveal as much of what occurred as possible without disclosing the information that provided the basis for the court closure. 127 A common way of achieving this is to incorporate the confidential material by some neutral description in the judgment or orders, and ensure that the unpublished material is set out in a document which is sealed with an appropriate endorsement and filed in the registry of the court. 128 However, it is important that the judgment contain basic information and remain intelligible. 129

Concealing information from those present in the courtroom [5.90] One of the corollaries of the principle of open justice is that all evidence communicated to the court is communicated publicly. 130 However, in some situations courts can order that certain information in a case that is being conducted in open court be withheld from those who are present in court, and thus from the public at large. 131 The information ordered to be withheld may be the real names of the parties or witnesses in the proceedings or the content of evidence. Where such an order is made, the information is generally placed before the court in writing and shown to the parties’ legal representatives, but is not read aloud. Concealing information from those who are in the courtroom has the advantage of giving the necessary confidentiality to the information, whilst at the same time maintaining the public right of presence during the proceedings. 132 In the words of Lord Widgery there is: a total and fundamental difference between the evils which flow from a court sitting in private and the evils which flow from pieces of evidence being received in the way which was followed in this 122

Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47.

123 124 125

Scott v Scott [1913] AC 417 at 436, 438, 481. Scott v Scott [1913] AC 417 at 436. David Syme & Co Ltd v General Motors-Holden’s Ltd [1984] 2 NSWLR 294.

126

In the words of Street CJ “there is the ever present risk that the exuberance of counsel or the predicament of a witness may let the cat out of the bag”: at 300. David Syme & Co Ltd v General Motors-Holden’s Ltd [1984] 2 NSWLR 294 at 307-308. Nevertheless, suppression of a judgment is not unknown, particularly in Western Australia where it is relatively common. David Syme & Co Ltd v General Motors-Holden’s Ltd [1984] 2 NSWLR 294 at 301; R v Tait (1979) 46 FLR 386 at 407. Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 317. Attorney General (UK) v Leveller Magazine Ltd [1979] AC 440 at 450.

127 128 129 130 131

132

Orders to conceal information from those present in court are often called suppression orders. Unless indicated otherwise, to avoid confusion, the term “suppression order” is not used to describe a concealment order. R v Tait (1979) 46 FLR 386 at 405.

250 [5.90]

Chapter 5 – Media and Open Justice case. The great virtue of having the public in our courts is that discipline which the presence of the public imposes upon the court itself. … When one has an order for trial in camera, all the public and all the press are evicted at one fell swoop and the entire supervision by the public is gone. Where one has a hearing which is open, but where the names of the witnesses are withheld, virtually all the desirable features of having the public present are to be seen. 133

In similar vein, in ABC v D1, Forrest J held that in determining whether to make a pseudonym order, a court is “entitled to take into account the fact that there will still be a reporting of the proceeding and that the hearing itself will be conducted in open court, subject to the restrictions imposed by the pseudonym order”. 134 Numerous cases affirm that the degree of derogation from open justice involved in an order is an important matter for the court to consider and that any derogations should be kept to a minimum. 135 Accordingly, where less drastic measures than court closure will suffice, they should be utilised.

Power to conceal information from those present in the courtroom [5.100] Superior courts which have general responsibility for the administration of justice possess an inherent power to make orders for the concealment of the identity of persons and other information within the courtroom. 136 These powers include “such powers as are necessary to enable a court to act effectively and uphold the administration of justice within its jurisdiction”. 137 The position in relation to inferior courts is different. Inferior courts are created by statute and do not bear any responsibility for the administration of justice beyond the confines of their jurisdiction. Accordingly, they do not possess the inherent power that is vested in superior courts. 138 An inferior court has only the powers that are granted to it by statute. However, those powers are taken to include such implied powers as are necessary to enable the court to act effectively within its express jurisdiction and to perform its functions in the administration of justice. 139 In particular, inferior courts have implied power to uphold, protect and fulfil the judicial function by ensuring that justice is administered according to law

133 134 135

136

R v Socialist Worker Printers and Publishers Ltd; Ex parte Attorney-General [1975] 1 QB 637 at 651-652. ABC v D1; Ex parte The Herald and Weekly Times Ltd [2007] VSC 480 at [70]. Attorney General (UK) v Leveller Magazine Ltd [1979] AC 440 at 451; Australian Broadcasting Commission v Parish (1980) 43 FLR 129; 29 ALR 228 at 236 (ALR); ABC v D1; Ex parte The Herald and Weekly Times Ltd [2007] VSC 480 at [35]-[36]; Bank Mellat v Her Majesty’s Treasury (No 1) [2013] UKSC 38 at [2]; A v British Broadcasting Corporation (Scotland) [2014] UKSC 25 at [35]. John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1992) 26 NSWLR 131 at 159 per Mahoney JA (with whom Hope A-JA agreed).

137 138

Siemer v Solicitor-General (NZ) [2013] NZSC 68 at [114]. John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476 per McHugh JA (with whom Glass JA agreed). This is equally true of federal courts created by statute: DJL v Central Authority (2000) 201 CLR 226 at 240-241 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; Hogan v Hinch (2011) 243 CLR 506 at 531; Australian Broadcasting Corporation v Local Court of NSW [2014] NSWSC 239 at [83].

139

Connelly v Director of Public Prosecutions [1964] AC 1254 at 1301; Taylor v Taylor (1979) 143 CLR 1 at 5-6; John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476; Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 346; John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344 at 353, 355; DJL v Central Authority (2000) 201 CLR 226 at 240-241; BUSB v The Queen (2011) 248 FLR 368; 80 NSWLR 170 at 374.

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and in an effective manner. 140 In certain circumstances this power may justify the making of an order that information be concealed from those who are present in the courtroom. These implied powers can be exercised by an inferior court both when it is conducting committal proceedings and when it is engaged in the trial of an action. 141 The implied powers serve a function similar to that served by the inherent powers exercised by a superior court, but they are derived from a different source and are more limited in their extent. 142

When is such power properly exercised? [5.110] It has been held that an order that information be concealed from those who are present in court is properly made only if the order is really necessary to secure the proper administration of justice. 143 This is the same principle that is applied in determining whether judicial proceedings should be heard in camera. However, in light of the fact that concealment orders are a far less drastic derogation from the principle of open justice, courts are likely to take a more liberal view as to the circumstances in which such orders can be made. Accordingly, not all cases in which concealment orders have been made can be satisfactorily explained on the basis that the order was necessary for the proper administration of justice in those proceedings. Other bases for this restriction on open justice are discussed in [5.280]. Following are the circumstances in which concealment orders are most commonly made.

Concealing the names of complainants and witnesses [5.120] The most common form of concealment order is a pseudonym order. There are several circumstances in which courts regularly order that the names of complainants and witnesses be concealed and that those persons be referred to by letters or pseudonyms in open court. 144 However, the matter remains one for the discretion of the court on a case by case basis and prosecutors have been admonished not to make advance promises to witnesses regarding anonymity in an attempt to fetter the court’s discretion. 145 The first situation is where the court is dealing with blackmail charges. In this case it is commonplace for courts to permit the complainant to give evidence without disclosing his or 140

141

142

John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476 per McHugh JA (with whom Glass JA agreed) citing I H Jacob, “The Inherent Jurisdiction of the Court” (1970) 23 Current Legal Problems 23 at 27-28. John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1992) 26 NSWLR 131 at 161-162 per Mahoney JA (with whom Hope A-JA agreed); Rockett v Smith; Ex parte Smith [1992] 1 Qd R 660. Grassby v The Queen (1989) 168 CLR 1 at 16-17. It has been noted that the two terms are often confused: John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1992) 26 NSWLR 131 at 147 per Kirby P.

143

Rockett v Smith; Ex parte Smith [1992] 1 Qd R 660 at 669; John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1992) 26 NSWLR 131 at 161 per Mahoney JA (with whom Hope A-JA agreed).

144

The person’s identity would be ordinarily known to the judge, counsel and to the other party, although there may be occasions on which the accused does not know the name of a witness. Rockett v Smith; Ex parte Smith [1992] 1 Qd R 660 at 668.

145

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her name. 146 In R v Socialist Worker Printers and Publishers Ltd; Ex parte AttorneyGeneral 147 the court stressed that this practice is not adopted out of feelings of tenderness towards the victims of blackmail, as victims, having usually engaged in disreputable activities which have provided the occasion for the blackmail, are often undeserving of such feelings. There are at least two reasons why courts generally permit the identity of a complainant in a blackmail case to be concealed. The first is that disclosure of the complainant’s name in open court would lend itself to the blackmailer’s purpose; the blackmailer would have had his or her way. The second and more compelling reason is that there is “a keen public interest in getting blackmailers convicted and sentenced, and experience shows that grave difficulty may be suffered in getting complainants to come forward unless they are given this kind of protection”. 148 The latter consideration has no application to the actual case in which the concealment order is sought, as the fact that the matter is before a court indicates that the complainant in question has indeed come forward. Rather, the order is made so that future victims of blackmail are not deterred from seeking the protection of the courts by fear of public exposure. 149 In this sense, the order protects the administration of justice as a continuing process. However, no concealment order will be made if the public interest in the complainant’s activities outweighs the public interest in suppressing his or her identity. 150 In John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales 151 the New South Wales Court of Appeal, by majority, held that a Magistrate conducting committal proceedings had implied power to order that the names of five alleged victims of extortion be referred to by letters in open court. Mahoney JA, with whom Hope A-JA agreed, held that the Magistrate was entitled to regard the order as necessary on the basis that revealing the identity of extortion victims would have the same or similar effects to those produced by revealing the name of blackmail victims, namely, damage to the victim and 146

147 148 149

For example, in 2007, a blackmail plot against a member of the royal family was prosecuted and the blackmailers found guilty, but the name of the victim was suppressed in the UK, although it was readily discoverable from websites outside the UK. Also in 2007 Queensland District Court judge, Wolfe J, suppressed the details of a blackmail threat made by a former Queensland cabinet minister Merri Rose. The threat was made to Premier Beattie but details of the guilty secret, and the name of the person concerned, were suppressed. See also ZAM v CFW, TFW [2013] EWHC 662 (QB). R v Socialist Worker Printers and Publishers Ltd; Ex parte Attorney-General [1975] 1 QB 637. R v Socialist Worker Printers and Publishers Ltd; Ex parte Attorney-General [1975] 1 QB 637 at 644. See also: The Herald & Weekly Times Ltd v Magistrates’ Court of Victoria [1999] VSC 232 at [39]. Rockett v Smith; Ex parte Smith [1992] 1 Qd R 660 at 671.

150

In 2006, two British judges were allegedly blackmailed by a woman who worked as a house cleaner for each of them. The woman was accused of having stolen a video from one of the judges which depicted the judges having sex and of seeking to extort money from them. Following the usual course, the court case was conducted in open court but the names of the two judges were suppressed. However, at a later point in time, this protection was stripped from one of the judges – Judge Mohammed Ilyas Khan – as a result of revelations made about him during the trial. The reason was that the house cleaner was an illegal immigrant and the judge was a judge of the Asylum and Immigration Tribunal, plus the fact that he had continued to have contact with her during the trial even when she was on bail. It was held that the public interest in the judge’s activities outweighed both the usual anonymity afforded to blackmail victims and the possibility that by naming him the public might be able to guess the identity of the other judge. The woman was convicted of one count of blackmail and of theft of the incriminating video, but her convictions were overturned on appeal.

151

John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1992) 26 NSWLR 131.

[5.120] 253

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mischief to the public. According to Mahoney JA, if the names of extortion victims were widely published, there would likely be copycats who would seek to extort money from those victims or other potential victims. The resultant confusion between real and mischievous threats would render the investigation of the offence more difficult. Furthermore, it was possible that extortion victims would not approach or co-operate with the police. Kirby P delivered a strong and convincing dissent. He held that the common law principle designed specifically for blackmail cases could not be extended to extortion, as the two cases were not analogous. In blackmail cases, the victim and the blackmailer share a guilty secret. If the name of the victim was revealed in open court, the blackmail would have succeeded or, to avoid that risk, the victim would likely not come forward. In the case of extortion, there is no guilty secret which the victim is seeking to conceal, thus making it far less likely that the prospect of publicity would deter victims from approaching the police. According to Kirby P, this distinction removes one of the important inhibitions which exist in blackmail cases against the revelation of identity in open court. Kirby P also doubted that concealing the names of extortion victims would prevent the copycat syndrome; if this were the object of the order, the entire proceedings would need to be held in camera. In Kirby P’s view the surer inhibition to copycat offences is the speedy, successful and public prosecution of the perpetrator. In R v Kwok the names of victims of offences involving sexual servitude were suppressed on the basis that they were closely analogous to blackmail cases. 152 Without the orders, the victims would be discouraged from reporting the crime and giving evidence due to the risk of suffering shame and stigmatisation as a result of the publicity, and this would promote the success of the perpetrators of sexual servitude. Other circumstances in which courts frequently accede to a request that the names of persons not be referred to in open court include: where the person concerned is a police informant or an undercover police officer (in which case the order is made to protect the safety of the informant or officer in question, to encourage the informant to give accurate testimony and to ensure that potential informants are not discouraged from providing information to police); 153 where the case involves matters pertaining to national safety and security; 154 and where the witness holds genuine and objectively reasonable fears for his or her safety and “the ends of justice would be defeated by the denial of the pseudonym, so that a pseudonym was necessary to avert an outcome”. 155 More recently, courts have shown a preparedness to make pseudonym orders if satisfied that disclosure of the identity of the plaintiff or defendant would prevent or deter them from bringing or defending proceedings (as the case may be) or

152 153 154

155

R v Kwok (2005) 64 NSWLR 335. It is unclear whether the victims were to be named in open court. If so, the order being sought was probably a non-publication order not a concealment order. Cain v Glass (No 2) (1985) 3 NSWLR 230 at 246ff; Jarvie v Magistrates’ Court of Victoria [1995] 1 VR 84. Taylor v Attorney-General (NZ) [1975] 2 NZLR 675; Attorney-General (UK) v Leveller Magazine Ltd [1979] AC 440; A v Hayden (No 2) (1984) 156 CLR 532; Re a Former Officer of the Australian Security Intelligence Organisation [1987] VR 875. Witness v Marsden [2000] 49 NSWLR 429 at 453.

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where disclosure of the identity of a witness would deter the witness from giving evidence. 156 This is often the case where a plaintiff who has been sexually abused or who has contracted a communicable disease wants to commence a civil action seeking damages but will not do so unless assured of anonymity, since they fear that they will suffer psychological harm, ostracism or exacerbation of their condition if they are identified. The mere prospect of stress, embarrassment or damage to professional or personal reputation is generally not sufficient to merit a pseudonym order. 157 Thus the inconvenience, upset and distress that might be caused by a heightened level of media interest in a case because it involves a person with a high public profile has been held to be an insufficient basis for a pseudonym order. 158

Concealing other information [5.130] A judge can order that details of what is alleged to be confidential information not be referred to in open court. 159 For example, in David Syme & Co Ltd v General Motors-Holden’s Ltd, 160 the respondent sought to restrain the appellant from publishing allegedly confidential information relating to the technical details and production and marketing plans for a new motor vehicle said to be under consideration for production and sale by the respondent. The interlocutory hearing took place in closed court. On appeal, the court refused to hear the matter in camera, holding that the appeal could proceed in open court without any risk of injustice to either party provided no reference was made to details of the technical information or to the product and marketing information that the respondent wished to protect. 161

Voir dire [5.140] A judge must conduct a voir dire – a trial within a trial – when he or she is required to determine the admissibility of evidence (such as a confession) or where it is necessary to give a ruling on the competency of a witness or whether a witness should be declared hostile. Unlike the previous scenarios, in which information is concealed from those who are present in 156

157 158 159

160 161

TK v Australian Red Cross Society (1989) 1 WAR 335; Johnston v Cameron (2002) 195 ALR 300 at 319; Herald & Weekly Times Ltd v Gregory Williams (formerly identified as VAI) (2003) 130 FCR 435 at 445; BK v ADB [2003] VSC 129; P v Australian Crime Commission [2008] FCA 1336 at [54]; Anon 2 v XYZ [2008] VSC 466; AX v Stern [2008] VSC 400; ESB v Victoria [2010] VSC 479; PPP v QQQ as Representative of the Estate of RRR [2011] VSC 186; TTT & JJJ v Victoria [2013] VSC 162. (But compare the decision of the plurality in J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10.) In sexual offence cases this consideration has sometimes led the court to suppress the identity of the accused. See, eg: ANN v ABC & XYZ [2006] VSC 348; ABC v D1; Ex parte The Herald and Weekly Times Ltd [2007] VSC 480. However, there are indications that these factors exert some influence over courts, particularly in Victoria, at least where the case is yet to be agitated in the court: Anon 2 v XYZ [2008] VSC 466. O’Shane v Burwood Local Court [2007] NSWSC 1300. As explained in Scott v Scott [1913] AC 417, a court might sit in camera when secret processes or confidential information is involved. However, this drastic course may not be necessary if the information in question can be referred to by a code. David Syme & Co Ltd v General Motors-Holden’s Ltd [1984] 2 NSWLR 294. The information alleged to be confidential was referred to in court as “the technical information” and “the project information”. On the other hand, requiring counsel to use veiled speech during a hearing may not always be in the interests of justice: AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2009] NSWSC 1290 at [6].

[5.140] 255

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the courtroom, when a voir dire is conducted, all the material is presented in open court in the presence of the press and the public, but in the absence of the jury. A court can rely on its inherent or implied power to make an order prohibiting the publication of evidence or argument in a voir dire, but the publication of such material prior to the delivery of the verdict will usually amount to a contempt of court even in the absence of a formal non-publication order.

Non-publication orders [5.150] It has already been explained that one of the corollaries of the principle of open justice is that members of the public who choose to attend judicial proceedings are free to report what they see and hear to the public at large. This section deals with whether, and if so, in what circumstances, courts can make orders restricting what can be published about judicial proceedings. Non-publication orders differ from the concealment orders discussed in the previous section. An order that certain names or information not be disclosed in open court is directed at how the case is to be conducted inside the courtroom, whereas a non-publication order is directed at what may be published about the proceedings outside the courtroom. 162 A court may be asked to make a non-publication order in any one of three circumstances. First, it may be asked to make a non-publication order to give effect to an order that proceedings be heard in camera. While the prevailing view appears to be that a valid in camera order can operate by implication to restrict the publication of what has taken place in the closed court, 163 thus making a non-publication order unnecessary, opinions to the contrary have been expressed. 164 Secondly, a non-publication order is commonly sought in conjunction with an order that information be concealed from those present in court. 165 Finally, a court may be asked to make a non-publication order even where proceedings have been conducted in open court and the relevant information has not been concealed from those present in the court. 166

162 163

164

165 166

Non-publication orders are frequently called suppression orders, but the latter term may have a wider connotation when used in legislation. Re F [1977] 1 All ER 114 (position at common law described at 120); W v M [2009] NSWSC 1084 at [15] (“the intentional publication of proceedings known to have been conducted in camera is likely to be a contempt of court”); New South Wales Law Reform Commission (2000), para [10.14]; Burrows and Cheer (5th ed, 2005), p 352. If a restriction on publication arises by implication from an order for closure, it would presumably lapse once the rationale for closure is spent. See, eg, Scott v Scott [1913] AC 417 at 483; Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 346. From the media’s perspective, the issue may be more theoretical than practical, as the media could only acquire information about an in camera proceeding if it was leaked by persons inside the closed court. See, for example, Rockett v Smith; Ex parte Smith [1992] 1 Qd R 660. See, for example, John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465; Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342.

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Power to make a non-publication order [5.160] There are numerous circumstances in which courts are given wide statutory powers to make non-publication orders. 167 However, in the absence of legislative authority, it is uncertain whether courts have power to make an order limiting what might lawfully be published concerning proceedings held before it in open court. The judgments on this issue “do not speak with one voice”. 168 While superior courts clearly have inherent power to regulate their proceedings for the purpose of administering justice, this inherent power is not at large, 169 and it is uncertain whether it would support an order forbidding non-parties from publishing information that has been disclosed in open court. 170 There is considerable authority both in favour 171 and against 172 the existence of such a power. 173 The High Court recently declined to resolve the issue. 174 The position in relation to inferior courts and statutory tribunals is even more tenuous. The implied powers possessed by inferior courts and tribunals are more limited than inherent powers 175 and the weight of authority suggests that they do not extend to the making of non-publication orders. 176 167

See [5.390]-[5.570]. In jurisdictions where courts possess broad statutory powers to make non-publication orders, resolution of the extent of a court’s common law powers is less important.

168

Herald & Weekly Times Ltd v Medical Practitioners Board of Victoria [1999] 1 VR 267 at 278 per Hedigan J. Reid v Howard (1995) 184 CLR 1 at 16-17; SG v DPP [2003] NSWSC 413 at [12].

169 170 171

Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 55. R v Clement (1821) 4 B & Ald 218; 106 ER 918; Ex parte The Queensland Law Society Incorporated [1984] 1 Qd R 166 at 169-170 per McPherson J; John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 472 per Mahoney JA; Herald & Weekly Times Ltd v Medical Practitioners Board of Victoria [1999] 1 VR 267 at 278; John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344 at 354 per Spigelman CJ; R v Williams; In the matter of an application by “The Age” [2004] VSC 413 at [12]; Commissioner of Police in New South Wales v Nationwide News Pty Ltd (2008) 70 NSWLR 643 at 649. The New Zealand courts are emphatic in their view that courts possess inherent power to make non-publication orders that bind the public and the media: Taylor v Attorney-General (NZ) [1975] 2 NZLR 675; Muir v Commissioner for Inland Revenue [2004] NZCA 277; Siemer v Solicitor-General (NZ) [2013] NZSC 68.

172

Attorney-General (UK) v Leveller Magazine Ltd [1979] AC 440 at 451-452 (per Lord Diplock), 455-456 (per Viscount Dilhorne), 463-464 (per Lord Edmund-Davies); John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 477 per McHugh JA; United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 at 334; Independent Publishing Co Ltd v Attorney-General of Trinidad and Tobago [2005] 1 AC 90; Herald & Weekly Times Pty Ltd v A (2005) 160 A Crim R 299 at 305. If the power to make such orders is lacking, any such publication that prejudices the administration of justice can only be addressed, after the fact, by a prosecution for a contempt of court: Siemer v Solicitor-General (NZ) [2013] NZSC 68 at [168].

173

174

175 176

Hogan v Hinch (2011) 243 CLR 506 at 532-534, 541-542 (French CJ described the position at common law as “contentious” but thought the better view was that courts do possess such inherent or implied powers, although such orders must be directed at specified persons. The other judges left the matter open: at 553). Confusion as to whether a court’s power to make orders restricting the publication of any aspect of proceedings before it extends to orders purporting to bind the world at large underlay the enactment of the Court Suppression and Non-Publication Orders Act 2010 (NSW): Rinehart v Welker [2011] NSWCA 403 at [25]. Grassby v The Queen (1989) 168 CLR 1 at 16-17. Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 358 per McHugh and Hope JJA; Rockett v Smith; Ex parte Smith [1992] 1 Qd R 660 at 664-665 per McPherson SPJ (with whom Moynihan J agreed); John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1992) 26 NSWLR 131 at 142 per Kirby P; Herald & Weekly Times Ltd v Psychologists’ Registration Board of Victoria [1998] VSC 141; Herald & Weekly Times Ltd v Medical Practitioners Board of Victoria [1999] 1 VR 267. But

[5.160] 257

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Even if courts do have inherent power to make non-publication orders, it seems that the validity of such orders will depend on the persons at whom they are directed. A non-publication order will directly bind the parties, witnesses and those present in court at the time it is made. 177 In personam orders directed at, or served on, named persons are also effective. 178 However, an order which purports to apply to the media or the world at large, or which is not directed in its terms to anyone in particular, is likely to be held to be beyond power. 179 The basis for the denial of power is that an order “in rem” is not an exercise of judicial power. 180 As explained by McHugh JA, judicial power is concerned with the determination of disputes and the making of orders concerning the existing rights, duties and liabilities of persons involved in proceedings before the courts. 181 A non-publication order which purports to operate as a common rule binding the world at large in their conduct outside the courtroom is an exercise of legislative power which therefore requires legislative sanction. It does not follow, however, that persons who are not directly bound by an order are at liberty to disregard it, as persons who know of such an order and deliberately frustrate it run a grave risk of being found to have committed a contempt. 182

When is such power properly exercised? [5.170] If courts do have power to make non-publication orders, what conditions must exist before the power can be properly exercised? As is the case with in camera and concealment orders, a number of cases have held that a court has power to restrict the publication of a report of proceedings only if the restriction is necessary to secure the proper administration of justice in those proceedings. 183 It has been suggested that the concept of necessity can be

177 178

179 180

there are contrary opinions: see Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at, 345-347 per Mahoney JA; Re Bromfield, Stipendiary Magistrate; Ex parte West Australian Newspapers Ltd (1991) 6 WAR 153at 167 per Malcolm J and 181 per Rowland J; CD and MQ v Medical Practitioners Board of Victoria (1996) 11 VAR 175. Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151 at [84]; Collard v Western Australia (No 3) [2013] WASC 70 at [19]. General Television Corporation Pty Ltd v Director of Public Prosecutions (2008) 19 VR 68 at 76–77; News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248 at 279; Collard v Western Australia (No 3) [2013] WASC 70 at [19]. John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344 at 364. John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 477; United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 at 333-334 (Samuels AP doubted the existence of the power on this basis, but did not need to decide the matter).

181 182

John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 477. John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344 at [83]; General Television Corporation Pty Ltd v Director of Public Prosecutions (2008) 19 VR 68; Herald & Weekly Times Pty Ltd v A (2005) 160 A Crim R 299 at 305. That is, an order that purports to operate on persons outside the courtroom “is only effective because of the inherent powers of the court to punish for contempt of court”: Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151 at [84].

183

Ex parte Queensland Law Society Incorporated [1984] 1 Qd R 166 at 170 per McPherson J; Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47; John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476-477 per McHugh JA; Re Bromfield, Stipendiary Magistrate; Ex parte West Australian Newspapers Ltd (1991) 6 WAR 153; John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344 at 356-357; Herald & Weekly Times Pty Ltd v A (2005) 160 A Crim R 299 at 306.

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applied with varying levels of stringency and that in the context of in camera orders and non-publication orders the test is to be applied strictly, “necessity” being equated with “essential”. 184 In Attorney-General (NSW) v Nationwide News Pty Ltd it was held that the test of necessity “requires at least that there be identified some substantial detriment or risk of detriment to the administration of justice that would, in a significant way, be alleviated by suppression of the information”. 185 Ordinarily, there must be material before the court upon which it can reasonably conclude that the order is necessary. 186 Many of the circumstances that justify closure of a court or a concealment order will provide the basis for a non-publication order. However, in John Fairfax Publication Pty Ltd v District Court (NSW)) the New South Wales Court of Appeal held that the District Court did not have an implied power to suppress the publication of a verdict in a criminal trial. 187 Nor is it proper for a court to make a non-publication order because it fears that aspects of the evidence may be misreported. 188 Applications to suppress the publication of confidential police methods have also been rejected by the courts. 189 Prevention of harm to one’s personal or business reputation will not suffice. Example

Raybos Australia Pty Ltd v Jones [5.180] Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 An order was sought forbidding the disclosure of the name of a defendant (a solicitor) and the firm in which he was a partner, in order to prevent harm to his personal and business reputation. The Court of Appeal unanimously refused to make the order, holding that, even if it had power to suppress the publication of anything said in open court, the power should not be exercised in this case. Kirby J refused to make the order because the proceeding in respect of which the order was sought was criminal in nature and he thought it especially undesirable that criminal proceedings be conducted in closed court or under restrictions of publicity, since what is at stake is not the private interests of citizens but the public interest in the proper administration of justice. Kirby J also felt that it was important that people come to the hearing of criminal charges equal before the law. It would therefore be inappropriate, where the charge relates to an alleged interference with the due administration of justice by a lawyer, to accord to that

184

John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 at 522.

185 186

Attorney-General (NSW) v Nationwide News Pty Ltd (2007) 73 NSWLR 635 at 642. John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 477 per McHugh JA; Lew v Priester (No 2) [2012] VSC 153 at [14]. But see, contra, R v Pomeroy; The Herald & Weekly Times Ltd [2002] VSC 178 at [10]; The Age Company Ltd v Magistrates’ Court of Victoria [2004] VSC 10 at [12]-[14]. John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344.

187 188 189

R v Condello (No 2) [2006] VSC 27 at [27]. Re Application by Chief Commissioner of Police (Vic) for Leave to Appeal (2004) 9 VR 275; Re Chief Commissioner of Police (Vic) (2005) 214 ALR 422; Attorney-General (NSW) v Nationwide News Pty Ltd (2007) 73 NSWLR 635.

[5.180] 259

Australian Media Law Raybos Australia Pty Ltd v Jones cont. lawyer a special and privileged position. 190 Samuels J refused to make the order but for different reasons. He did not believe that the fact that the proceeding was criminal made it especially important that publicity not be restricted. He also disagreed with the “equality before the law” argument espoused by Kirby J, holding that what would substantially prejudice one person may have little impact upon another and that, accordingly, the individual circumstances of litigants are relevant to the exercise of a discretionary power. According to Samuels J, the only question in any case, criminal or civil, is whether publication would prevent or seriously impede the fair resolution of those proceedings according to law. Potential damage to the defendant’s professional reputation did not satisfy this test.

“Proceeding Non-publication Orders” versus “General Non-publication Orders” [5.190] The foregoing discussion has focused on “proceeding non-publication orders”, which operate to constrain the publication of information that has been or will be disclosed in a proceeding that is before the court (such as names or evidence). However, courts may make “general non-publication orders”, which are orders that prohibit the publication of extraneous information about a person who is before the court, usually prejudicial material such as prior convictions, confessions or previous criminal conduct. That is, general non-publication orders target publications which have no connection with court proceedings except that they have the “capacity to affect current or future proceedings”. 191 Such orders might be made pre-emptively in anticipation of material being published that will prejudice a forthcoming trial. Thus an order might prohibit a television program from being broadcast or prohibit material from being uploaded onto the internet. This occurred in February 2008, when King J in the Victorian Supreme Court, acceded to an urgent application by the Director of Public Prosecutions to stop Channel Nine from screening its Underbelly docudrama in Victoria until after the conclusion of a gangland murder trial which was due to commence a few weeks after the scheduled screening of the first two episodes on 13 February. 192 The objection to the broadcast was that the series depicted details relevant to the upcoming murder trial – including a detailed explanation of why the victim was murdered – which would make it impossible for the accused to get a fair trial. The decision was upheld by the Court of Appeal, although the terms of the order were

190

A similar approach to the legal profession was taken in R v Legal Aid Board, Ex parte Kaim Todner [1998] 3 WLR 925.

191 192

Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at 66. R v A [2008] VSC 73.

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narrowed. 193 Alternatively, a court might order the removal of material that is already available to the public. 194 This has particular application to material on the internet.

Jurisdiction to make general non-publication orders [5.200] Superior courts have inherent power to make general non-publication orders to secure a fair and unprejudiced trial. 195 Whether the implied powers of inferior courts would support such orders is less clear. 196 Whether (and which) courts have statutory power to make general non-publication orders will depend on the terms of the legislation that applies in each jurisdiction. The statutory non-publication order regimes that currently apply to the Commonwealth, New South Wales and Victoria confer legislative power to make such orders. 197

The countervailing public interests [5.210] In News Digital Media Pty Ltd v Mokbel (“Mokbel”), 198 Warren CJ and Byrne J explained that in the case of a proceeding non-publication order, the tension is between the requirement that justice be administered openly and the requirement that it be administered. 199 It has already been explained that the importance attributed to open justice means that proceeding non-publication orders are exceptional. While general non-publication orders have the same objective as proceeding non-publication orders namely protection of the court process, the countervailing consideration is not the preservation of open justice but free speech, in particular, the public’s right to know about “matters that lie within their legitimate area of interest”. 200 The “free speech hurdle” is more readily cleared than the open justice hurdle. 201 The strength of the public’s right to know will depend on the information that is sought to be suppressed. At one end of the spectrum is the “performance of the functions of 193 194 195 196 197

198 199 200

201

General Television Corporation Pty Ltd v Director of Public Prosecutions (2008) 19 VR 68. See News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248 at 265-6; Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at 69. General Television Corporation Pty Ltd v Director of Public Prosecutions (2008) 19 VR 68; X v General Television Corporation Pty Ltd [2008] VSC 344; News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248. See J Bosland and A Bagnall, “An Empirical Analysis of Suppression Orders in the Victorian Courts: 2008-12” (2013) 35 Sydney Law Review 671 at 677. See [5.400], [5.420] and [5.540]. The Open Courts Act 2013 (Vic) explicitly confers such power, labelling these orders “broad” suppression orders. The Court Suppression and Non-publication Orders Act 2010 (NSW) does not explicitly confer power to make general non-publication orders, but it has been held that s 7 permits such orders to be made by all courts to which the Act applies: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at 62, 67, 69. However, the powers conferred on courts by s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) do not expand the powers of a superior court under the general law to prevent a sub judice contempt: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at 67, 70. News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248. News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248 at 258-9. News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248 at 259. See also Dupas v Channel Seven Melbourne Pty Ltd [2012] VSC 486 at [7]. It might, however, be argued that open justice is implicated in an indirect manner, in that the accused, the judge and the public are entitled to know what information has been relied upon by a jury in coming to their decision. If there is a danger that a jury has relied on external material not in evidence, then open justice is arguably compromised: see R v Karakaya [2005] Cr App R 5 at [24]-[25]. Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at 66.

[5.210] 261

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those in the highest office”; at the other end of the spectrum is “salacious gossip about personal shortcomings of the less lofty”. 202 In Mokbel, the public’s right to be informed about Mokbel’s prior convictions, the charges against him and whether he had associations with criminals and criminal activities was held not to “rank at the highest level of principle”. 203 Commercial considerations take second place to the public interest in securing a fair trial. 204

The form of general non-publication orders [5.220] The law constrains the form that general non-publication orders can take. 205 In [5.160] it was explained that the weight of Australian authority is that Australian courts do not have the power to make proceeding non-publication orders that bind the world at large. A similar conclusion has been reached in respect of general non-publication orders. In General Television Corporation Pty Ltd v Director of Public Prosecutions, 206 the orders initially made by King J, which sought to bind every person in Victoria, were narrowed by the Court of Appeal so that they directly bound only General Television Corporation. However, the Court of Appeal was quick to point out that others who might be inclined to show those episodes of the mini-series would expose themselves to the risk of being found to have committed a contempt of court, not because they were directly bound by the order but because, knowing of its existence, they had put at risk the administration of justice by deliberately frustrating its effect. 207 In similar vein, in Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (“Ibrahim”) 208 the New South Wales Court of Criminal Appeal held that the Court Suppression and Non-publication Orders Act 2010 (NSW) could not support sweeping orders directed at the world at large, but only orders limited to specified person(s) and material which are in a form which “would be appropriate in the inherent jurisdiction of the Supreme Court, to prevent an apprehended breach of the sub judice principle”. 209 The Court was concerned that if general non-publication orders could be validly addressed to the world at large, they would directly bind entities that were unaware of their existence, such as Internet Service Providers (ISPs), Internet Content Hosts (ICHs) and search engines. Moreover, to the extent that the Court Suppression and Non-publication Orders Act 2010 (NSW) empowered a court to make an order which applies to an ISP or an ICH that is unaware of the material to which the order 202 203 204

205 206 207 208 209

News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248 at 259. News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248 at 259. Nationwide News Pty Ltd v Farquharson (2010) 28 VR 473 at 477. In General Television Corporation Pty Ltd v Director of Public Prosecutions (2008) 19 VR 68 at 81 the Court of Appeal upheld the decision of King J that the Underbelly program carried no weight in the balancing exercise between a fair trial and freedom of expression as it was a dramatised police television series made for entertainment with the aim of attracting a huge audience and generating high advertising revenue for Channel Nine. Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at 78. General Television Corporation Pty Ltd v Director of Public Prosecutions (2008) 19 VR 68. See John Fairfax & Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465 at 477. Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52. Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at 78. In other words, since s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) did not expand the power of the courts under the common law, it did not confer power to make orders binding the world at large.

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refers at the time it is made, or which requires an ISP or an ICH to monitor or make inquiries about the content of such material, it would be inconsistent with cl 91 of the Broadcasting Services Act 1992 (Cth). This clause renders a State or Territory law or a rule of common law or equity ineffective if it subjects an ICH or an ISP to liability in respect of content of which it was unaware or which requires an ICH or ISP to monitor, make inquiries about, or keep records of internet content hosted by the ICH or carried by the ISP. 210

General non-publication orders and injunctions to restrain a sub judice contempt [5.230] The Underbelly litigation highlighted a degree of confusion regarding the difference between a “general non-publication order” and a quia timet injunction to restrain an apprehended sub judice contempt. If a general non-publication order is, in truth, an injunction, General Television Corporation argued that certain consequences must follow. First, injunctions to restrain contempts of court are rarely awarded, because the act being restrained is criminal in nature and courts are reluctant to grant injunctions to restrain the commission of a criminal act. However, the Court of Appeal held that the court is exercising its power to make general non-publication orders in order to protect its own processes from risk and thereby protect the administration of justice. The fact that the order has the effect of restraining the commission of a crime is a “collateral by-product” of the order, not its purpose. 211 General Television Corporation also argued that an application for an injunction to restrain an apprehended contempt “is an application for a remedy directed at particular persons” which is “governed by the rules of evidence and procedures of the court relating to such an application”. 212 Accordingly, the party seeking an injunction must produce evidence to support the application and the person against whom the order is sought has a right to respond to that evidence, to adduce their own evidence and to make submissions as to why there is no apprehended contempt. 213 It claimed that in so far as King J had issued an injunction to restrain a threatened contempt without complying with these procedures, it was denied procedural fairness. The Court of Appeal acknowledged that the process adopted by King J did not follow the usual course in which a civil injunction is sought, but said this was understandable given the urgency of the application and the fact that the judge was not simply determining private rights between litigants but was acting to secure a fair and unprejudiced trial. While the Court conceded that a non-publication order which prohibits the publication of matters which have a significant risk of causing serious prejudice to the fair trial of an accused person is “akin” to an injunction to restrain a threatened contempt, it did not follow that the exercise of such power must follow the usual inter partes process of seeking an injunction, which would involve invoking the civil jurisdiction of the Court by summons supported by affidavits followed by application made to a Practice Court judge. In Dupas v Channel Seven Melbourne Pty Ltd, Kyrou J held that the Supreme Court’s inherent jurisdiction to make general non-publication orders is “not constrained by the 210 211

Clause 91 is discussed in greater detail in [6.160]. Doe v John Fairfax Publications Pty Ltd (1995) 125 FLR 372 at 384.

212 213

General Television Corporation Pty Ltd v Director of Public Prosecutions (2008) 19 VR 68 at 75. Ibid.

[5.230] 263

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principles that define the commission of a contempt”. 214 Accordingly, it is not essential that the proceeding sought to be protected by a general non-publication order must be pending at the time the order is made. 215

The meaning of “necessity” [5.240] Courts can make orders that curtail open justice if this is “necessary” to secure the proper administration of justice in those proceedings. General non-publication orders, which do not curtail open justice, can be made only if they are necessary to prevent a real and substantial risk of prejudice to the fair trial of an accused and thereby avert an interference in the course of justice in the case. 216 The concept of necessity bespeaks a high standard which cannot be stretched to encompass orders that are merely “convenient, reasonable or sensible” or “that would serve some notion of the public interest”, 217 “still less that, as the result of some ‘balancing exercise’ the order appears to have one or more of those characteristics”. 218 Once a court has determined that an order is necessary, the order must be made. 219 Although “necessity” is a strong word, 220 it is not to be given an unduly narrow construction. It has “shades of meaning” 221 and “can be applied with varying degrees of strictness”. 222 The following paragraphs demonstrate that the factors that impact on whether an order is necessary vary according to the context and the type of order being sought.

Orders That Derogate From Open Justice [5.250] In camera orders, concealment orders and proceeding non-publication orders all derogate from open justice. Courts should adopt the expedient of sanctioning the minimum derogation from open justice possible, while still securing the purpose for the derogation. 223 Since an in camera order is the most drastic curtailment of open justice, the concept of necessity is applied most stringently. Consequently, an in camera order should not be made in circumstances where the administration of justice would be adequately served by a concealment order. 214 215

Dupas v Channel Seven Melbourne Pty Ltd [2012] VSC 486 at [10]. Dupas v Channel Seven Melbourne Pty Ltd [2012] VSC 486 at [8]-[10].

216

Nationwide News Pty Ltd v Farquharson (2010) 28 VR 473 at 474; Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at 66-7.

217

Australian Broadcasting Commission v Parish (1980) 43 FLR 129 at 133; BUSB v The Queen (2011) 248 FLR 368; 80 NSWLR 170 at 374; Hogan v Australian Crime Commission (2010) 240 CLR 651 at 664; Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at 56. Hogan v Australian Crime Commission (2010) 240 CLR 651 at 664. See also Herald & Weekly Times Ltd v Magistrates Court of Victoria [2004] VSC 194 at [17]; Rinehart v Welker [2011] NSWCA 403 at [31]. Hogan v Australian Crime Commission (2010) 240 CLR 651 at 664. Hogan v Australian Crime Commission (2010) 240 CLR 651 at 664. Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at 65.

218 219 220 221 222 223

BUSB v The Queen (2011) 248 FLR 368; 80 NSWLR 170 at 375. See also: John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344 at 358. Australian Broadcasting Commission v Parish (1980) 43 FLR 129; 29 ALR 228 at 236; Bravehearts Inc v County Court of Victoria (2010) 29 VR 421 at 430.

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In most cases, the order is argued to be necessary to administer justice in the proceeding in which it is sought. In John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales, Mahoney JA held that this should not be construed narrowly to mean that if an order curtailing open justice in some form were not made, the object of the proceedings would be defeated or the proceedings could not continue or the administration of justice in that case would collapse. In Mahoney JA’s view, an order restricting open justice is “necessary” whenever it can be properly assumed that unacceptable consequences will follow if it is not made. 224 While there is general agreement with Mahoney JA’s first proposition – that the concept of necessity is not to be equated with “essential” 225 – not all judges have been prepared to endorse the “unacceptable consequences” proposition. 226 The following cases show that judges can differ as to whether and why a proceeding non-publication order is necessary. Example

John Fairfax & Sons Ltd v Police Tribunal of New South Wales [5.260] John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 The Police Tribunal, an inferior court of record, made a suppression order on the first day of a hearing of corruption charges against a member of the police force. 227 The order was made in respect of an alleged police informant, “X”, whom the Tribunal was informed would be of significance in the hearing, although there was no suggestion that X would give evidence before the Tribunal. 228 The order provided that X’s name was “not to be published in reports of these proceedings nor in any material which would serve to identify him or his place of abode”. The purpose of the order was to protect the safety of X from the perceived effects of evidence given publicly. However, the terms of the order did not prohibit the public from attending the hearing. Nor did the order preclude X from being named in open court, and in fact X was subsequently referred to by his real name in court. This meant that any person who attended the proceedings could have learned his name. Somewhat ironically, X denied that he was an informant, although the Tribunal was unaware of this fact when it made the order. John Fairfax applied to the Tribunal to have the order revoked. When the Tribunal refused to hear the application, the company applied to the Supreme Court for relief.

224 225 226 227 228

John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1992) 26 NSWLR 131 at 161. See, for example: Pelechowski v The Registrar, Court of Appeal (1999) 198 CLR 435 at 452; R v Perish [2011] NSWSC 1102 at [42]; Collard v State of Western Australia (No 3) [2013] WASC 70 at [7]. It was, however, cited with approval in Rinehart v Welker [2011] NSWCA 403 at [40] and in Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at 56-7. The Police Regulation (Allegations of Misconduct) Act 1978 (NSW) did not specifically empower the Tribunal to prohibit the publication of evidence taken before it. It was expected that the police officer who was the subject of the charges would testify that he and X were in a police/informant relationship.

[5.260] 265

Australian Media Law John Fairfax & Sons Ltd v Police Tribunal of New South Wales cont. In the New South Wales Court of Appeal, McHugh JA, with whom Glass JA agreed, took a narrow view and quashed the order on the basis that it was not necessary to secure the administration of justice in the proceedings before the Tribunal. Thus the order was beyond the Tribunal’s power. It was held that in permitting X to be named in open court, the Tribunal must be taken to have concluded that it was not necessary to enable it to act effectively within its jurisdiction that the anonymity of X be protected from disclosure in the proceedings. Furthermore, at the time the orders were made there was no suggestion that X might give evidence. Thus the order was not designed to protect X as a witness in the proceedings or to prevent the publication of evidence where publication would destroy the object of the proceedings. It was also not designed to ensure that other evidence before the Tribunal was not influenced by the allegation that X was an informant. It was simply an order designed to protect a stranger from the detrimental consequences of publishing any evidence given before it, and, as such, was an order the Tribunal had no power to make. Mahoney J agreed that the order should be quashed. However, unlike McHugh JA, he held that it was within a court’s power to make orders for the protection of persons involved in proceedings before it, even if those persons were not parties or witnesses. Accordingly, he held that the first part of the order – that X’s name should not be published in reports of the proceedings – was properly made. 229 However, the second part of the order was not validly made, as it did not have the necessary relationship to the proceedings in the court. Taken literally, it would prevent the publication of X’s name without reference to the suggestion that he was, in proceedings before the Tribunal, a police informant. Mahoney JA refused to read down the second part of the order, and held that the whole order should be quashed.

Example

J v L & A Services Pty Ltd (No 2) [5.270] J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10 A married couple brought an action against their employer and a group of medical practitioners in which they alleged that they had contracted the HIV virus in the course of their employment and were at risk of contracting AIDS and had suffered a loss of expectation of life. The couple feared that if their medical condition became known to the public they would suffer ostracism and discrimination, and receive widespread media publicity which would create stress and exacerbate their general medical condition. The trial judge ordered that the couple be permitted to sue by using an initial

229

Mahoney JA subsequently conceded that the current state of the law is such that an order prohibiting publication cannot be made to avoid damage to persons involved in proceedings, but maintained his view that the law should be otherwise: John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1992) 26 NSWLR 131 at 163-164; Nationwide News Pty Ltd v District Court of New South Wales (1996) 40 NSWLR 486 at 493-496.

266 [5.270]

Chapter 5 – Media and Open Justice J v L & A Services Pty Ltd (No 2) cont. in lieu of their names and prohibited publication of the proceedings to the extent that publication might tend to identify the couple. An appeal against these orders was lodged. After an exhaustive exposition of the authorities a majority of the Queensland Court of Appeal – Fitzgerald P and Lee J – upheld the appeal. Whilst expressing sympathy for the couple, these judges held that information cannot be withheld from the public merely to save a party from loss of privacy, the prospect of social harm or stress. Adopting a narrow view, the majority held that the public may be excluded and/or publicity restricted only when public access or publicity would frustrate the purpose of a court proceeding by preventing the effective enforcement of some substantive law and depriving the court’s decision of practical utility. 230 On the facts, no restraint upon public access or publicity was needed to prevent the proceedings from being deprived of practical utility or to ensure a fair trial. Pincus J endorsed the “unacceptable consequences” statement of Mahoney JA and dissented, holding that the restrictions had been validly imposed to avoid damage to the couple which was of such a kind as to require some relief in the interests of justice.

[5.280] It is suggested that courts today would be prepared to make pseudonym and/or non-publication orders to protect a person’s personal health and safety, 231 particularly if there was evidence before it that the parties would not pursue their action if they were named. 232 Not all cases in which orders restricting open justice have been made can be convincingly explained on the basis that the order was necessary to secure the proper administration of justice in that particular proceeding. In John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales, Kirby P stated that the rule of openness can be modified not only to secure the attainment of justice in a particular case, but to secure the attainment of justice in cases generally 233 or to protect urgent considerations of public interest such as national security. 234 230 231

J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10 at 44. A v British Broadcasting Corporation (Scotland) [2014] UKSC 25 at [39]-[41].

232

Johnston v Cameron (2002) 195 ALR 300 at 319; Herald and Weekly Times Limited v Williams (2003) 201 ALR 489 at 499; Anon 2 v XYZ [2008] VSC 466 at [31].

233

See also R v White (2007) 17 VR 308 at [21] and BUSB v The Queen (2011) 248 FLR 368; 80 NSWLR 170, where the administration of justice was held to be a continuous process that is not confined to the determination of the particular case, but which extends to future cases as well. See also: A v British Broadcasting Corporation (Scotland) [2014] UKSC 25 at [38]. The function of orders that target the administration of justice as a continuing process is often to ensure that people are not deterred from using the court process in similar cases in the future, either as parties commencing actions or as witnesses giving evidence, and to ensure that the future supply of information from such persons will not cease or be impeded.

234

John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1992) 26 NSWLR 131 at 141. See also Herald & Weekly Times Ltd v Magistrates’ Court of Victoria [1999] 2 VR 672 at 676-677. Views differ as to whether considerations of national security must be linked to the administration of justice in the particular case before an order restricting open justice can be made. In Attorney-General (UK) v Leveller Magazine Ltd [1979] AC 440 at 457-8, Viscount Dilhorne upheld a concealment order made in the interests of national safety and security even though the order was not necessary for the interests of the

[5.280] 267

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It is usually necessary for the party seeking the order to adduce credible evidence of its necessity, but there are times when courts must rely on their own knowledge and experience. This will be the case where it is argued that certain consequences will follow if an order is not made. However, if it were suggested in a particular case that these consequences would not in fact flow, that could be the subject of proof. 235

General Non-publication Orders [5.290] Courts have identified a number of factors that impact on whether a general non-publication order, particularly a take-down order, is “necessary”. First, in Ibrahim it was held that the general principles of sub judice contempt must be regarded, in the circumstances, as inadequate to prevent prejudice. This may be because “there is a dispute between ... the parties to the criminal proceedings and the publisher as to whether the material has the offending tendency” 236 or because there is a dispute as to “whether a particular publisher has the legal authority to remove material identified on a particular website”. 237 This requirement also obliges the person seeking the order to show that offending material has been identified but those on whose sites it appears, though contacted and informed of it, have failed to take it down, having been given a reasonable opportunity to do so or have indicated that they do not intend to do so. 238 Only then will an order for removal be regarded as necessary. This requirement seems to entrench sub judice contempt as the primary mechanism for dealing with prejudicial publicity. Second, if the court considers that a general non-publication order would have no practical utility, it cannot be described as “necessary”. 239 A take down order may be futile if a search engine search reveals the existence of many other articles containing similar prejudicial material which would remain available even if the material the subject of the order is removed from sites under the control of persons to whom the order directly applies. This occurred in Mokbel, where Warren CJ and Byrne AJA found that since “the removal of the offending material did not prevent a determined searcher from accessing the same material from a administration of justice in those proceedings. By contrast, Lord Scarman expressed the view that the interests of national security would justify the complete closure of a court only if the factor of national security would endanger the administration of justice: 470-71. In J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10, national security was described as a further exception to the requirement of open justice because of its fundamental importance to the preservation of a society based on the rule of law, thus suggesting the former view is correct. In BUSB v The Queen (2011) 248 FLR 368; 80 NSWLR 170, the Court raised, but left unresolved, the nature of the relationship between national security and the administration of justice in the conduct of a criminal trial: at 375. 235 236 237 238

239

John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1992) 26 NSWLR 131 at 163. Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at 78. Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at 78. See also Australian Broadcasting Corporation v Local Court of NSW [2014] NSWSC 239 at [57]. Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at 78. The Court is said to have adopted a notice and take down procedure which provides a level of certainty for internet users and internet intermediaries: B Fitzgerald and C Foong, “Suppression Orders After Fairfax v Ibrahim: Implications for Internet Communications” (2013) 37 Australian Bar Review 175 at 191. R v Perish [2011] NSWSC 1102 at [43].

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cached website, it could not be said that the order was necessary for the protection of the court process with respect to Mr Mokbel’s pending trials”. 240 However, the mere existence of other prejudicial material does not automatically render an order futile; its accessibility to jurors is the measure. 241 This would depend on its priority in a search result and whether the material is “pushed” upon a visitor to a website or would have to be “pulled” by a determined searcher. Third, an order cannot be regarded as necessary if it is practically unenforceable. This is likely to be the case if the publisher is outside the court’s jurisdiction, even though the prejudicial material is published within the court’s jurisdiction. 242 Fourth, an order may not be “necessary” if it would remove access to material by people in other jurisdictions in order to prevent access by a juror, as this would be jurisdictional overreach. 243 Finally, where quarantining the jury from extraneous information is the raison d’etre of the order, the court must give proper consideration to whether jurors are likely to obey instructions to disregard any publicity to which they have been exposed and not conduct searches for information. 244 Since courts routinely claim that they proceed on the assumption that jurors adhere to their oaths and obey judicial directions, 245 this may well be the case, particularly if there is legislation that imposes criminal sanctions on juror research. If so, an order will not be necessary. 246 However, although courts have expressed confidence in the integrity and obedience of juries, this does not mean that “the law should abandon its traditional role of protecting them from events which put this integrity to the test”. 247 Accordingly, courts remain free to exercise their power to restrain or remove publications which might jeopardise an accused’s fair trial; whether they should do so in any given case is a matter for the assessment of each judge. 248 For example, if the offending material is recent and the jury has some recollection of its existence, it is more likely that a take-down order will be necessary. 249 240 241

242 243 244 245

246 247

248 249

News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248 at 272; See also East Sussex County Council v Stedman [2010] 1 FCR (UK) 567. Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at 72. R v Perish [2011] NSWSC 1102 at [44]. See also General Television Corporation Pty Ltd v Director of Public Prosecutions (2008) 19 VR 68, where the order restraining the television broadcast was made even though other material that related to the court case was in circulation and notwithstanding that the episodes that were the subject of the order could be purchased interstate or downloaded from the internet: at 88. Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at 73. Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at 72. Australian Broadcasting Corporation v Local Court of NSW [2014] NSWSC 239 at [56]. Gilbert v The Queen (2000) 201 CLR 414 at 425; R v Jamal (2008) 72 NSWLR 258 at 261-2. But see R v Rich (Ruling No 7) [2008] VSC 437 at [14]; R Burd and J Horan, “Protecting the Right to a Fair Trial in the 21st Century – Has Trial by Jury Been Caught in the World Wide Web?” (2012) 36 Criminal Law Journal 103 at 112-3. This reasoning was employed in News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248, although the court was dealing with archived material which could be found only by active search. Dupas v Channel Seven Melbourne Pty Ltd [2012] VSC 486 at [7]. Similar sentiments were expressed in R v Perish, where Price J held that even if it is accepted that the jury will abide by the judge’s directions, courts should help make the juror’s task easier: R v Perish [2011] NSWSC 1102 at [55]. Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at 72. Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at 72.

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The fact that a take-down order has failed the necessity test on an appeal does not mean that it would not be a sub judice contempt if the material the subject of the discharged order was re-uploaded by the publisher, since this might impart to the material “a prejudicial character (it) originally lacked”. 250 While some have argued that take down orders are a blunt tool to ensure the impartiality of a jury in the 21st century, 251 others defend such orders on the basis that they can assist in securing a fair trial. 252

Challenging a decision to derogate from open justice [5.300] The courts have not laid down in final form the common law principles which govern the entitlement of a media organisation to challenge a decision to close a court, conceal information from those in court or suppress the publication of information. 253 One factor which has an important bearing on the media’s standing is the forum in which the challenge is made.

Right to Oppose the Making of an Order Before the Magistrate or Judge by Whom it was Made [5.310] Where an order restricting the principle of open justice in one of the aforementioned ways is applied for by a party, the media have no right to be heard by the judge from whom the order is sought, in the sense that they are necessary parties to the application. 254 Accordingly, it is not incumbent on the judge to stay the hearing of the application until notice is served on the media; nor are the parties obliged to ensure that the media are given an opportunity to be heard. 255 To hold otherwise would be unjust to the parties and interfere with the fairness of the trial. 256 Although media organisations lack the same right to be heard as the parties to a case, they have an entitlement to be heard in relation to the making, variation or lifting of such orders which is “less choate and less extensive” in nature. 257 One factor that has a bearing on the extent of their entitlement is the nature of the order which is sought to be challenged. If the order directly binds the media, the media have an entitlement to be heard as a matter of

250

News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248 at 273.

251

254 255

R Burd, “Is There a Case for Suppression Orders in an Online World?” (2012) 17 Media and Arts Law Review 107; S Dawson and P Karp, “Holding Back the Tide: King Canute Orders and Internet Publications” (2012) 30(4) Communications Law Bulletin 10; M Bagaric, “Editorial: Fair Trial and Prejudicial (Social) Media Comment – The Problem is not Social Media but the Existing Law” (2012) 36 Criminal Law Journal 333. IF Buckley, “In Defence of “Take-down” Orders: Analysing the Alleged Futility of the Court-ordered Removal of Archived Online Prejudicial Publicity” (2014) 23 Journal of Judicial Administration 203. A brief summary of the case law on standing appears in Herald & Weekly Times Ltd v Medical Practitioners Board of Victoria [1999] 1 VR 267 at 297-298. Nationwide News Pty Ltd v District Court of New South Wales (1996) 40 NSWLR 486 at 489. Nationwide News Pty Ltd v District Court of New South Wales (1996) 40 NSWLR 486 at 489.

256 257

Nationwide News Pty Ltd v District Court of New South Wales (1996) 40 NSWLR 486 at 489. Nationwide News Pty Ltd v District Court of New South Wales (1996) 40 NSWLR 486 at 489.

252 253

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natural justice. 258 This will be the case if the media is present in court when the order is made, or if the order is made pursuant to legislation which empowers the court to make orders binding the world at large. However, if the order affects the media only in so far as it creates an indirect liability in contempt, the position is less clear and cases have gone either way. For example, in John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales 259 and Nationwide News Pty Ltd v District Court of New South Wales, 260 the majority (consisting respectively of Mahoney JA and Hope A-JA, and Mahoney P and Meagher JA) held that the mere fact that the media are indirectly affected in what can be published is not a basis for holding that they have a legal entitlement to appear and contest an order before an inferior court by whom it was made. Where media organisations have been accorded standing, the reasons for doing so have differed. In John Fairfax & Sons Ltd v Police Tribunal of New South Wales, 261 Fairfax was a newspaper publisher with no direct interest in the police tribunal inquiry other than a wish to publish what occurred there. Nevertheless, McHugh JA, with whom Glass JA agreed, held that Fairfax had standing to challenge the non-publication order before the Police Tribunal, even though it was not directly bound by the order, because as a publisher it was directly affected in what it could publish as a result of the order and was subject to the law of contempt if it acted contrary to the order. 262 The refusal of the Tribunal to hear the media was accordingly regarded as a breach of natural justice. In Re Bromfield; Ex parte West Australian Newspapers Ltd 263 Nicholson J took the view that the applicant had a sufficient interest or legitimate expectation of benefit arising from its enjoyment of the liberty of reporting and publishing and from the nature of its business which comprised in significant part the reporting of court proceedings. Judges who have been generous in their approach to the standing of the media have emphasised the special role played by the media in the dissemination of news and information and the fact that, in practical terms, orders restricting the principle of open justice are often of real relevance only to the media. 264 Even where the media are granted standing to challenge the making of an order, the timing of the hearing of the challenge remains one for the discretion of the presiding judge. 265 In fixing a reasonably appropriate time, the judge should have regard to the parties’ need to have 258 259 260 261 262

263 264

265

Re Bromfield; Ex parte West Australian Newspapers Ltd (1991) 6 WAR 153 at 168-171 per Malcolm CJ. Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1992) 26 NSWLR 131. Nationwide News Pty Ltd v District Court of New South Wales (1996) 40 NSWLR 486. John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465. In similar vein, in Re Bromfield; Ex parte West Australian Newspapers Ltd (1991) 6 WAR 153, Malcolm CJ found a sufficient interest in the newspaper to establish standing before the magistrate because it was bound on pain of contempt not to frustrate the purpose of the order by publishing material in breach of the obligation. Re Bromfield; Ex parte West Australian Newspapers Ltd (1991) 6 WAR 153. Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 356-357 per McHugh JA; Re Bromfield; Ex parte West Australian Newspapers Ltd (1991) 6 WAR 153 at 189-190 per Nicholson J (cf Rowland J at 185); Loti Tuqiri v Australian Rugby Union Ltd [2009] NSWSC 781 at [5]. The Victorian Supreme Court’s Media Policies and Practices manual states that “wherever possible, media representatives should be notified that an application for a non-publication order is made before it is heard and should be given the opportunity to be heard”. John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 482 per McHugh JA; Herald & Weekly Times Ltd v Medical Practitioners Board of Victoria [1999] 1 VR 267 at 297.

[5.310] 271

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an acceptably fair trial and the media organisation’s competing claim not to have its interest in publishing what has taken place in the proceeding defeated by delay. 266

Right to Apply to Superior Court for Relief [5.320] Irrespective of whether the media can oppose the making or variation of an order before a court at first instance, it is clear that a media organisation can seek injunctive, declaratory or prerogative relief in the Supreme Court against an order made by a lower court, whether or not it is made a party to the proceeding and whether or not it is directly bound by the order. 267 In this case the media are invoking the supervisory jurisdiction of the Supreme Court. It is clear that the standing required of an applicant for prerogative relief is not stringent. In fact it has been suggested that where the complaint is that a court has exceeded its jurisdiction, a stranger can seek prerogative relief without showing any special interest in the subject matter, but simply to uphold the observance of the law. 268 Even if a special interest is required, it can be satisfied on any one of a number of grounds, including that the media has the principal role in disseminating information about the courts and, as such, has a special right to uphold freedom of access, or that publishers have a direct financial interest in having their journalists attend and report court proceedings, or that a media organisation risks being found guilty of contempt if it acts contrary to the order it seeks to challenge. 269

Right to Lodge an Appeal [5.330] Whether an appeal lies to the Supreme Court from a decision of a lower court in respect of an order that derogates from open justice depends on whether legislation creates a right of appeal. 270 In some jurisdictions, this matter is less than clear. 271 In any event, a right of appeal may not avail a media organisation if it can only be exercised by a party to the proceeding in respect of which an order derogating from open justice was made. 272

266 267

268

Nationwide News Pty Ltd v District Court of New South Wales (1996) 40 NSWLR 486 at 489 per Mahoney P. Nationwide News Pty Ltd v District Court of New South Wales (1996) 40 NSWLR 486 at 490, 498. See Herald and Weekly Times Ltd v Medical Practitioners Board of Victoria [1999] 1 VR 267 at 297, which lists the cases which have supported the right of the media to apply to a superior court to review court closure and non-publication orders. John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 468-470 per Mahoney JA; John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1992) 26 NSWLR 131 at 167 per Mahoney JA with whom Hope A-JA agreed.

269

John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 470; Herald & Weekly Times Ltd v Medical Practitioners Board of Victoria [1999] 1 VR 267 at 296.

270 271

An application for prerogative relief is not the hearing of an appeal. For example, in Victoria, the Supreme Court has frequently had to determine whether an appeal lies to the Court of Appeal from a non-publication order made by a Supreme Court judge. See Supreme Court Act 1986 (Vic) ss 17, 17A(3), considered in: Re Application by Chief Commissioner of Police (Vic) for Leave to Appeal (2004) 9 VR 275; Re Application by Chief Commissioner of Police (Vic) (2005) 214 ALR 422; Herald & Weekly Times Pty Ltd v A (2005) 160 A Crim R 299; Herald & Weekly Times Pty Ltd v Mokbel [2006] VSCA 93; General Television Corporation Pty Ltd v Director of Public Prosecutions (2008) 19 VR 68. Herald & Weekly Times Ltd v County Court of Victoria [2000] VSC 280 at [13]-[15].

272

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Consequences of breaching an order that derogates from open justice [5.340] The consequences that flow from disclosing what took place in an in camera hearing, or from breaching a concealment or a non-publication order, depend in the first instance upon which court made the order and whether the order was validly made. If the order was made by a superior court of record, it must be obeyed until it is set aside, even if it is ultimately determined that it should not have been made or was made without jurisdiction, and any breach or contravention of the order can give rise to a charge of contempt. 273 The position is otherwise in relation to orders made by inferior courts and tribunals. In that case, orders made without power are a nullity and disobedience cannot amount to a contempt. 274 Different considerations arise where an order is within the power of an inferior court or a tribunal, but is improperly made in the circumstances. In that case, “the order is good until it is set aside by a superior tribunal’ and ’while it exists it must be obeyed”. 275 The consequence of breaching an order also depends on who it binds. A person who is directly bound by an order is prima facie guilty of contempt if that person breaches the order. The position is otherwise in relation to a person who is not directly bound by an order but who does something which has the effect of frustrating or interfering with the order. In this class of case, the person will be guilty of contempt only if he or she is aware of the order and the breach constitutes an interference with the administration of justice. Courts have frequently been required to apply these general principles to media organisations which have breached a concealment order imposed at common law. 276 When a judge orders that information be concealed from those present in court or that a party or witness be referred to by a pseudonym, he or she is making a direction as to what is to happen inside the courtroom. A ruling of this nature directly binds only those persons who are present in court at the time it is made. 277 Owing to the fact that a concealment order does not deal with what is to happen outside the courtroom, it does not directly and expressly affect the conduct of the media. Therefore, a media organisation cannot be found guilty of contempt simply on the basis that it disobeyed the order. However, the fact that the media are not directly bound by a concealment order does not mean that the concealed names or 273 274

275 276 277

Jackson v Sterling Industries Ltd (1987) 162 CLR 612; Siminton v Australian Prudential Regulation Authority (2006) 152 FCR 129; Re Macks; Ex parte Saint (2000) 204 CLR 158 at 177-8. Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 357 per McHugh JA (with whom Hope JA agreed); United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323; Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; Herald & Weekly Times Pty Ltd v Victoria [2006] VSCA 146. Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 357 per McHugh JA. If the order in question was made pursuant to a statutory power, the common law requirements for holding the media liable do not necessarily apply. It would depend on the statute. Attorney-General (UK) v Leveller Magazine Ltd [1979] AC 440 at 451-452; John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465. This would include the parties and witnesses and possibly members of the media who are present in court at the time: Re Bromfield; Ex parte West Australian Newspapers Ltd (1991) 6 WAR 153 at 170 per Malcolm CJ. It has been suggested that those in court administration who are concerned with the case are also directly bound: John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1992) 26 NSWLR 131 at 167 per Mahoney JA (with whom Hope JA agreed).

[5.340] 273

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information can be published with impunity, and a media organisation which does so is liable to be convicted for contempt. But the contempt does not lie in the mere fact of disobedience. Rather, any conviction for contempt must be based on a finding that the publication constitutes an interference with the administration of justice. The significance of the order lies in the fact that it establishes what the judge regards as necessary for the course of justice. Example

R v Socialist Worker Printers and Publishers Ltd; Ex Parte Attorney-General [5.350] R v Socialist Worker Printers and Publishers Ltd; Ex Parte Attorney-General [1975] 1 QB 637 An order was made that the names of two complainants in a blackmail case be referred to in court as Y and Z. The real names of the complainants were subsequently published in the Socialist Worker newspaper. The author and publisher of the article were found guilty of contempt because the publication had a tendency to prejudice the due administration of justice by causing future victims of blackmail to fear publicity and thus deter them from coming forward in aid of legal proceedings or from seeking the protection of the law. 278

Example

Attorney-General (UK) v Leveller Magazine Ltd [5.360] Attorney-General (UK) v Leveller Magazine Ltd [1979] AC 440 Magistrates made an order permitting an army officer to give evidence for the prosecution in committal proceedings for offences against the Official Secrets Act under the name “Colonel B”. There was no order prohibiting the name from being published. The officer’s name was subsequently published in a number of magazines. The House of Lords set aside a finding that the magazine publishers were guilty of contempt because statements had been made by the colonel in evidence, without protest by the court or the prosecution, which made it easy to discover his identity. Accordingly, it could not be concluded that publication of the officer’s name constituted an interference with the administration of justice.

[5.370] As explained in [5.160], it is unlikely that non-publication orders made pursuant to a court’s common law powers can validly bind the world at large, so unless an order directly 278

The court also held that the publication of the names in defiance of the judge’s direction was a blatant affront to the authority of the court, but this alternative basis for the finding of contempt has not been approved in Australia on the ground that the order did not directly bind the author and publisher of the article: John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, 478 per McHugh JA.

274 [5.350]

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binds a media organisation, its effect on the organisation is indirect and consequential. That is, if publication of the information would interfere with the administration of justice it will amount to a contempt of court. 279 By contrast, if a charge relates directly to breach of a non-publication order, the court is not concerned with the potential effect of the publication on the trial in respect of which the order was made or its effect on potential jurors in that trial; 280 rather, it is concerned to ascertain whether the publication contravened and frustrated the terms of the order. 281 In addition to establishing that the publication of information constitutes an interference with the administration of justice, at common law, a media organisation which is not directly bound by an order curtailing the principle of open justice can be held guilty of contempt only if it was aware of the order and it was apparent that the effect of the order would be frustrated by the particular publication. 282 However, the law does not impose on the media a special legal duty to make inquiries with a view to ascertaining whether such an order has been made. 283 Accordingly, the fact that a media organisation had the means and opportunity of discovering the existence of the order is not enough to render it liable for contempt. It must actually know of the order. 284 The position may be otherwise under a legislative regime; it is a question of statutory interpretation. 285 It is unclear whether a publication of information in breach of a non-publication order would expose a media organisation to a civil action in damages by an aggrieved individual. 286

Statutory exceptions to the principle of open justice General comments [5.380] Since open justice is a common law principle, it can be trumped by statutory provisions, subject to any constitutional constraints. 287 There is an abundance of statutory exceptions to the general principle that judicial proceedings must be conducted in open court 279

280 281 282

283 284 285 286 287

R v His Honour Judge Noud; Ex parte MacNamara [1991] 2 Qd R 86 at 98; John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344 at 363; Herald & Weekly Times Pty Ltd v A [2005] VSCA 189 at [27]-[29]. But query whether a court has power to punish a contempt that is committed outside its jurisdiction: J Mowbray and D Rolph, “’It’s a Jungle Out There’: The Legal Implications of Underbelly” (2009) 28(1) Communications Law Bulletin 10 at 12. This would be the issue if the charge was sub judice contempt. The Queen v Hinch [2013] VSC 520 at [72]. Attorney-General (UK) v Leveller Magazine Ltd [1979] AC 440 at 452, 456, 458, 468, 472. In The Queen v Hinch [2013] VSC 520 it was held to be sufficient if a reasonable person in the position of the media organisation would have apprehended that publication of the material in issue would frustrate the terms of the order: at [61]-[63]. Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 354. Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 354 per McHugh JA (with whom Hope JA agreed). Mahoney JA did not decide this issue. See [5.380]. See [5.380]. E Thompson, “Does the Open Justice Principle Require Cameras to be Permitted in the Courtroom and the Broadcasting of Legal Proceedings?” (2011) 3(9) Journal of Media Law 211 at 220.

[5.380] 275

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and may be freely reported by the media. These exceptions are not uniform; they vary in terminology and in the material which they aim to prevent coming before the public. A number of general comments can be made about these statutory exceptions. First, courts tend to interpret statutory provisions as supplementing, rather than replacing, the common law powers outlined earlier in this chapter. 288 However, in each case it is a matter of statutory construction. Second, because these statutes constitute an incursion on the principle of open justice, the principle of legality requires that they be interpreted narrowly so as to minimise any curtailment. 289 Nevertheless, although strictly construed, the statutory exceptions are frequently wider in scope than their common law counterparts; indeed, they often exceed what is necessary for the administration of justice. Thus they tend to make greater encroachments upon the principle of open justice. Third, the statutory exceptions generally take one of two forms. They either require a court to be closed to the public or automatically forbid the publication of certain information about a case (that is, they are self-executing) or they vest the court with a discretion to make such orders, in which case the circumstances in which such orders can be made are usually delineated in the legislation. Fourth, legislative exceptions are often spread across a number of statutes within the one jurisdiction, with provisions frequently overlapping. Fifth, it appears that, as a consequence of the presumption against the extraterritorial operation of legislation, the legislative restrictions apply only in the State or Territory in which the proceedings are held, although this presumption may be displaced by the language of the statute in question. 290 This means that information that is subject to a suppression order in one State can be freely reported in another State. Sixth, self-executing provisions bind all members of the public and ignorance of their existence is no excuse. In similar vein, some cases have suggested that non-publication orders made by a judge pursuant to a statutory power operate as a common rule binding on all members of the public (including the media), whether or not they are present at the proceeding when the order was made, and that a contravention of the order will constitute a

288 289

290

New South Wales Law Reform Commission (2000), para [10.28]. Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 55; Herald & Weekly Times Ltd v Magistrates’ Court of Victoria [1999] 2 VR 672 at 677; R v Pomeroy [2002] VSC 178 at [9]; Herald & Weekly Times Pty Ltd v DPP [2007] VSC 71 at [18], [22]; W v M [2009] NSWSC 1084 at [17]; Hogan v Hinch (2011) 243 CLR 506 at 526, 535. It goes without saying that the courts must give effect to the ordinary meaning of the words. It is only when constructional choices are open that the principle of legality comes into play. R v Nationwide News Pty Ltd and Queensland Newspapers Pty Ltd (2008) 22 VR 116; P Mallam, S Dawson and J Moriarty, Media Law and Internet Practice (Thomson Reuters, subscription service), para [15.290].

276 [5.380]

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contempt or an offence irrespective of whether the person was aware of its existence. 291 In light of the fact that the majority of non-publication orders are made pursuant to statutory powers, this does not auger well for media organisations, particularly in jurisdictions which do not have a formal system for notifying court reporters of the existence of these orders. However, in Hogan v Hinch, French CJ cast doubt on these propositions, maintaining that the presumption is that the full mens rea is required unless this is displaced by the statute. 292 Indeed, it seems that the recent inclination is to eschew absolute liability and to adopt the common law position outlined in [5.370]. Seventh, in most cases, legislation that mandates a derogation from open justice or empowers a court to make such an order creates a statutory offence for breach. 293 Breaches are usually punishable by way of a specified fine or imprisonment. In some cases, the legislation will provide that a breach is punishable as a contempt of court, either in lieu of, or in addition to being, a statutory offence. 294 However, in most cases the legislation is silent as to whether a court can use its contempt jurisdiction to deal with a breach of a statutory provision or whether a specific penalty for default provided for in the statute is the only one that can be invoked for a contravention of an order made pursuant to the statute. This issue was considered in R v Nationwide News Pty Ltd. 295 In that case, Mandie J referred to the general rule of construction that when a special remedy is given by a statute for a failure to comply with its provisions, that remedy is taken to be exclusive. However, this rule of construction is just a guide and it is ultimately a matter of interpreting the legislation. Relevant factors include: whether the court in which the person is prosecuted has power to punish contempts; 296 whether the provision in question makes reference to the court’s contempt powers or whether it has the semblance of a code; and whether it proscribes conduct that would not be caught by the court’s contempt powers (for example, if a statute permits an order to be made for reasons other than the protection of the administration of justice then a breach may not amount to a contempt). 297

291

292 293 294 295 296 297

Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 355 (the court acknowledged that the position would be different if the person was not directly bound by the order); Registrar of the Supreme Court v Herald & Weekly Times Ltd [2004] SASC 129; Registrar v Nationwide News Ltd [2004] SASC 223. Of course it will ultimately depend on the terms of the statute. See generally: New South Wales Law Reform Commission (2000) ch 10. Hogan v Hinch (2011) 243 CLR 506 at 538-9. See also the view of the plurality at 550-1. It is common for legislation to provide that a prosecution for an offence against the restrictions can be commenced only by or with the consent of the Attorney-General. See, for example, Solicitor-General v Smith [2004] 2 NZLR 540 at [65]. R v Nationwide News Pty Ltd (2008) 22 VR 116. See also: Solicitor-General v Smith [2004] 2 NZLR 540 at [65]. See [6.40]. On the facts of R v Nationwide News Pty Ltd and Queensland Newspapers Pty Ltd, Mandie J was influenced by the reasoning behind the enactment of s 126 of the Magistrates’ Court Act 1989 (Vic), which was to fill a lacuna in the common law regarding the court’s power to make non-publication orders binding on persons unconnected with the proceedings. Accordingly, he held that the section provided an exclusive remedy for contravention of an order made pursuant to it.

[5.380] 277

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Eighth, Burrows and Cheer surmise that a person affected by a breach of a non-publication order might have a cause of action for breach of statutory duty 298 or for negligence. 299 This view was borne out in a Victorian case in which a County Court judge awarded damages to a plaintiff whose name had been published in contravention of the Judicial Proceedings Reports Act 1958 (Vic) on the basis that the broadcaster had breached a statutory duty and been negligent. 300 Finally, the media have experienced a number of practical problems with orders that curtail open justice, particularly non-publication orders. 301 These problems have been identified and discussed in academic literature. 302 Some have already been referred to this chapter. The first is the sheer volume of non-publication orders that are issued in some jurisdictions, particularly Victoria, South Australia and Western Australia. 303 This is to be compared with Queensland and Tasmania, where the number of non-publication orders is negligible. Both general and particular factors account for these wide variations. Generally, the extent of the statutory power to make non-publication orders varies considerably between the jurisdictions. The wider and more expansive these powers, the more likely it is that courts will use them. Conversely, courts that must rely primarily on their inherent or implied powers are likely to make fewer non-publication orders. More particularly, Victoria had a spate of interconnected gangland murder trials and terrorism trials during the early 2000s which resulted in the courts issuing dozens of non-publication orders in an attempt to preserve the integrity and fairness of each trial. 304 Nevertheless, the fact remains that different court cultures and attitudes exist in relation to suppression. The inconsistencies between and within the jurisdictions, both in relation to the statutory powers possessed by courts and their preparedness to use them, is a contentious issue with the media. Non-publication orders are often made without the benefit of sufficient argument. This is likely to be the case if the parties agree that an order should be made and the media are not 298 299 300 301 302

303

304

This could only be the case if the non-publication order was made pursuant to a statutory power. J Burrows and U Cheer, Media Law in New Zealand (6th ed, 2010) at 477-9. Jane Doe v Australian Broadcasting Corporation [2007] VCC 281. These difficulties have been encountered in relation to orders made pursuant to both common law and statutory power. A Kenyon, “Not Seeing Justice Done: Suppression Orders in Australian Law and Practice” (2006) 27(2) Adelaide Law Review 279; C Lawson, “An Analysis of the Incidence of Issue of Suppression Orders in Contemporary Australia” (2007) 16 Polemic 55; Innes Report of the Review of Suppression Orders and The Media’s Access to Court Documents and Information (2008) Commissioned by Australia’s Right to Know, Ch 2; M Pearson and C Graham, “Suppression Orders: Reskilling Journalists and the Judiciary” (2010) 32(1) Australian Journalism Review 97; P Innes, The Public’s Right to Know: Media Access and Information (Speech delivered at Cross Currents Conference, 30 September 2010), http://www.alla.asn.au/conference/ 2010/papers/innes.pdf; J Hartigan (Speech delivered at The Courts and the Media in the Digital Era conference, Bond University, 12 February 2011), http://www.mediaplanet.org.au/2011/02/justice-must-be-seento-be-done/; J Bosland and A Bagnall, “An Empirical Analysis of Suppression Orders in the Victorian Courts: 2008-12” (2013) 35 Sydney Law Review 671. Innes Report of the Review of Suppression Orders and The Media’s Access to Court Documents and Information (2008) Commissioned by Australia’s Right to Know, Ch 2; J Bosland and A Bagnall, “An Empirical Analysis of Suppression Orders in the Victorian Courts: 2008-12” (2013) 35 Sydney Law Review 671. Some of these orders have been quite drastic. For example, it was two years before the media could report that gangland killer Carl Williams had been found guilty of murder.

278 [5.380]

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present in court at the time to argue against it. In any event, contesting an application is expensive, perhaps prohibitively so for smaller media outlets. The wording of non-publication orders is often unclear, ambiguous, unduly wide or fails to explain how a broad statutory criterion (such as “to prevent prejudice to the administration of justice”) applies in the particular circumstances of the case. 305 This makes it difficult for the media to comply with the order and/or to decide whether to challenge it. Some non-publication orders are superfluous because they replicate what statutory provisions already prohibit (such as publishing the name of a sexual offence victim) or because publication of the material would constitute a sub judice contempt. Perhaps judges are reluctant to credit the media with knowledge of these restrictions or perhaps they are made out of an overabundance of caution so as not to jeopardise a trial. Orders are often made in perpetuity or “until further notice” when they could or should have a fixed duration. The prime example is orders made to protect an interconnected trial, which need only last for the life of that trial. Another significant problem experienced by the media in relation to non-publication orders is discovering whether such orders have been made, varied or revoked. 306 The solution to this problem is two-pronged: courts need to maintain a central database of non-publication orders 307 and should have a procedure in place for promptly notifying the media when they are made. The reality is that the current position in the States and Territories is haphazard and varied. 308 Some jurisdictions do not have mechanisms for recording suppression orders made by their judges; others maintain registers and keep accurate statistics. Legislation in South Australia obliges the court registrar to notify authorised news media representatives that a suppression order has been entered in the register, varied or revoked. 309 The entry of the order in the register is deemed to constitute notice to the media of the making and terms of such order. 310 Some jurisdictions have no formal system for notifying non-publication orders and simply leave it to the media to discover these orders through making their own inquiries at the court registry. The lack of accessible and current information about extant non-publication orders fosters inadvertent breaches by the media. 305 306 307

308

309 310

Some courts have a tendency to track the wording of the legislation in the orders rather than tailor the wording of the order to the particular circumstances of the case. Court closures and concealment orders are far more obvious. In some jurisdictions, legislation requires the courts to bring such orders to the public attention by means of a notice posted on the door of the court. The United Kingdom Law Commission recommended that such a database should be accessible online to the public at large and should contain the name of the case in which an order has been made and the date on which, or circumstances under which, the order expires. Accessibility to the general public is important now that citizens can disseminate information widely. However, in order not to undermine the very purpose for which an order is made, the database should not contain the terms of the order. Persons who wish to ascertain the nature and terms of the order should be directed to contact the court registry: United Kingdom Law Commission, Contempt of Court (2): Court Reporting Law Com No 344 (2014). A detailed overview of the practice in each jurisdiction is contained in P Innes, Report of the Review of Suppression Orders and The Media’s Access to Court Documents and Information (2008) Commissioned by Australia’s Right to Know (2008), Ch 2. However, some of the detail is now out of date. Evidence Act 1929 (SA), s 69A(10). Evidence Act 1929 (SA), s 69A(12). It is understood that orders are faxed to authorised news media representatives: P Innes, Report of the Review of Suppression Orders and The Media’s Access to Court Documents and Information (2008) Commissioned by Australia’s Right to Know 32-3.

[5.380] 279

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Finally, there is the vexed issue of the effectiveness of non-publication orders to achieve their aim when the proscribed information can simply be uploaded on the internet from outside the jurisdiction in which the order was made. A classic example is the Underbelly case where, despite the court orders, the series was able to be downloaded from the internet from a file sharing website within minutes of it being screened in other jurisdictions. 311 Whether, and if so how, the law can withstand the advance of technology is an issue that besets many areas of media law.

General Statutes in each Australian jurisdiction [5.390] In an attempt to address some of the shortcomings of non-publication orders discussed in [5.380], in July 2008 the Standing Committee of Attorneys-General (“SCAG”) formed a working group to develop a proposal on the harmonisation of suppression and non-publication orders. Draft model provisions were developed by the working party, released to stakeholders for comment and refined and endorsed by the SCAG, where it was agreed that each Attorney-General would consider implementing them in their respective jurisdictions. 312 New South Wales was the first jurisdiction to do so when it enacted the Court Suppression and Non-publication Orders Act 2010 (NSW), which commenced operation on 1 July 2011. The Commonwealth followed suit with the Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth) which is similar, though not identical, to the New South Wales legislation. 313 Victoria has also enacted a comprehensive scheme in the Open Courts Act 2013 (Vic), but it differs from the SCAG model in a number of respects. With the exception of South Australia, which has had a comprehensive suppression order scheme in place for many years, the legislation in other jurisdictions is fairly piecemeal and does not address many of the problems listed above. This chapter will outline the more important general statutes in force in each Australian jurisdiction that empower courts to sit in camera and make non-publication orders. A selection of subject specific provisions will then be considered.

Commonwealth [5.400] The High Court, the Family Court, the Federal Court and the Federal Circuit Court of Australia must generally proceed in open court, although each court has the power to deal with certain matters in chambers. 314 The public or specified persons can be excluded from the Federal Court and the Federal Circuit Court of Australia where the Court is satisfied that the 311

J Mowbray and D Rolph, “’It’s a Jungle Out There’: The Legal Implications of Underbelly” (2009) 28(1) Communications Law Bulletin 10 at 12.

312

Standing Committee of Attorneys-General, Communique, 7 May 2010. The intention was that the legislation should apply to every court in each jurisdiction, bringing about a rationalisation of the law within jurisdictions as well as between them. See: Parliament of Australia, Senate Legal and Constitutional Affairs Legislation Committee, Access to Justice (Federal Jurisdiction) Amendment Bill 2011 (2012). Judiciary Act 1903 (Cth), ss 15, 16; Family Court of Australia 1975 (Cth), s 97(1), (1A); Federal Court of Australia Act 1976 (Cth), s 17(1); Federal Circuit Court of Australia Act 1999 (Cth), s 13(2) (the provision is expressed not to apply to family law or child support proceedings: s 13(1)).

313 314

280 [5.390]

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presence of the public or those persons would be contrary to the interests of justice or, in the case of the Federal Circuit Court of Australia, prejudicial to the security of the Commonwealth. 315 As explained in [5.390], the Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth) inserted provisions pertaining to suppression and non-publication orders into the acts that govern the High Court, the Family Court, the Federal Court and the Federal Circuit Court of Australia. 316 The Commonwealth scheme is the same as that adopted by New South Wales, with four main exceptions. First, an order made by a federal court can prohibit the publication or disclosure of a wider range of information than an order made by a New South Wales court, namely, information that is obtained by process of discovery, produced under a subpoena or lodged or filed in the court. Second, the Commonwealth scheme does not permit a suppression or non-publication order to be made on the ground that it is “otherwise necessary in the public interest to be made and that public interest significantly outweighs the public interest in open justice”. 317 Third, it does not provide for review of suppression and non-publication orders by the same court that made the order. 318 Finally, the Commonwealth scheme provides that contravention of an order, whether by act or omission, is an offence, without specifying a mens rea.

Australian Capital Territory [5.410] In the Australian Capital Territory, the Supreme Court, the Magistrates Court and coroners conducting inquests and inquiries have power to prohibit the publication of evidence or a report of evidence given in a proceeding where it appears that publication would be likely to prejudice the administration of justice. 319 These courts can also prohibit the publication of the name of a party, or intended witness in the interest of the administration of justice. 320 These orders may be accompanied by a direction that certain persons, or everyone other than certain persons, remain outside the courtroom for a specified period. 321 Provision is also made for courts to close while vulnerable witnesses give evidence. 322

315

Federal Court of Australia Act 1976 (Cth), s 17(4); Federal Circuit Court of Australia Act 1999 (Cth), s 13(7). The Family Court also has power to exclude persons, but no grounds for exclusion are specified: Family Court of Australia 1975 (Cth), s 97(2): see [5.570].

316

319 320

Judiciary Act 1903 (Cth), Pt XAA; Family Court of Australia 1975 (Cth), Pt XIA; Federal Court of Australia Act 1976 (Cth), Pt VAA; Federal Circuit Court of Australia Act 1999 (Cth), Pt 6A. General statutory powers possessed by these courts that had previously been relied upon to support suppression orders should no longer be resorted to for this purpose: Explanatory Memorandum to the Access to Justice (Federal Jurisdiction) Amendment Bill 2011 at 9. Compare Court Suppression and Non-publication Orders Act 2010 (NSW), s 8(1)(e). This is discussed by M Kumar, “Keeping Mum: Suppression and Stays in the Rinehart Family Dispute” (20120) 10 Macquarie Law Journal 23 at 39-40. Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 110, 111, 112. Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 110, 111, 112.

321 322

Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 111(4). Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 102.

317 318

[5.410] 281

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The hearing of a proceeding before the Magistrates Court must be in public. 323 However, Magistrates are invested with power to direct that the hearing or part of the hearing take place in private and give directions as to who may be present. 324 They can also restrict or prohibit the publication of evidence given at a hearing (whether in public or private) or matters contained in documents lodged with the court or received in evidence, or prohibit or restrict the disclosure to some or all of the parties of evidence given at the hearing, or of a matter contained in a document lodged with the court or received in evidence by the court for the purposes of the proceeding. 325 These directions can be given only if the Magistrate is of the opinion that it is in the public interest or the interests of justice to do so. If necessary, to secure order and safety in court premises, a judge, magistrate or presidential member can order members of the public generally, or stated members of the public, to leave or not be admitted to court premises. 326

New South Wales [5.420] In New South Wales, the Court Security Act 2005 (NSW) accords to members of the public and journalists an explicit and general statutory right to enter and remain in an area of court premises that is open to the public. 327 This right to be present is expressed to be subject to the courts’ inherent and implied jurisdiction and to the provisions of any other Act or law that restricts who may be present at a court proceeding. 328 Moreover, judicial officers are empowered to order members of the public to leave, or not be admitted to, court premises in order to secure order and safety. 329 The Criminal Procedure Act 1986 (NSW) provides that both committal and summary proceedings are to be heard in open court. 330 The power of courts to sit in camera in civil proceedings is primarily governed by the Civil Procedure Act 2005 (NSW). That Act provides that the business of a court in relation to any proceedings may be conducted in the absence of the public in any one of the following circumstances: on the hearing of an interlocutory application (except while a witness is giving oral evidence); if the presence of the public would defeat the ends of justice; if the business concerns the guardianship, custody or maintenance 323

324 325 326 327 328 329 330

Magistrates Court Act 1930 (ACT), s 310(1). This does not apply to a civil matter that, under another territory law, may be dealt with otherwise than in open court. It is also subject to any other Territory law that restricts who may be present at a hearing: s 310(4). Magistrates Court Act 1930 (ACT), s 310(2)(a). Magistrates Court Act 1930 (ACT), s 310(2)(b), (c). Court Procedures Act 2004 (ACT), ss 41, 50. Court Security Act 2005 (NSW), s 6. Court Security Act 2005 (NSW), s 6. See, for example, the Witness Protection Act 1995 (NSW), s 16. Court Security Act 2005 (NSW), s 7. Criminal Procedure Act 1986 (NSW), ss 56, 191. There is a qualification to the requirement that committal proceedings be held in open court. For the purpose of facilitating the use of an electronic case management system established under the Electronic Transactions Act 2000 (NSW) in committal proceedings, the hearing of a matter may be conducted in the absence of the public, with the consent of the parties to the proceedings, if the matter arises after the first appearance of the accused person in committal proceedings, is of a procedural nature, does not require the resolution of a disputed issue and does not involve a person giving oral evidence: s 56(3).

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of a minor; if the proceedings are not before a jury and are formal or non-contentious; if the business does not involve the appearance before the court of any person; if, in proceedings in the Equity Division of the Supreme Court, the Court thinks fit; and if the uniform rules so provide. 331 As explained in [5.390], the Court Suppression and Non-publication Orders Act 2010 (NSW) contains a detailed scheme for the making of suppression and non-publication orders by New South Wales courts. 332 The scheme is expressed not to limit or affect any inherent jurisdiction or any powers that courts have apart from the Act to regulate their proceedings and deal with contempts. 333 Nor does it impinge on other legislative provisions that prohibit or restrict, or authorise a court to prohibit or restrict, the publication or other disclosure of information in connection with proceedings. 334 The Act provides for the making of “suppression orders” and “non-publication orders”. Suppression orders prohibit or restrict the disclosure of information by publication or otherwise. It is the broader term. 335 Non-publication orders prohibit or restrict the publication of information, but do not otherwise prohibit or restrict its disclosure. To “publish” means to disseminate or provide access to the public or a section of the public by any means, including publication in a book, newspaper, magazine or other written publication; broadcast by radio or television; public exhibition; or broadcast or publication by means of the internet. 336 It would seem that concealment orders are not within the purview of the Act. 337 In deciding whether to make a suppression or non-publication order, s 6 requires a court to take into account that a primary objective of the administration of justice is to safeguard the

331 332

333 334

335

336

337

Civil Procedure Act 2005 (NSW), s 71. “Court” is defined in s 3 to mean the Supreme Court, Land and Environment Court, Industrial Court, District Court, Local Court or Children’s Court or any other court or tribunal, or a person or body having power to act judicially, that is prescribed by the regulations. The Coroner’s Court is not mentioned (but see Bissett v Deputy State Coroner [2011] NSWSC 1182). Court Suppression and Non-publication Orders Act 2010 (NSW), s 4. Court Suppression and Non-publication Orders Act 2010 (NSW), s 5. The Explanatory Notes to the draft SCAG Model Bill envisaged that as a result of the Act, existing laws that gave judges a discretion to make non-publication orders would be repealed and that only those laws that contained self-executing prohibitions or presumptions against publication would remain: Court Suppression and Non-publication Orders Bill 2010, drafting note 2.2. New South Wales, Parliamentary Debates, Legislative Assembly, 29 October 2010, 27197 (Barry Collier). A suppression order does not, however, prevent a person from disclosing information if the disclosure is not by publication and is done in the course of performing functions or duties or exercising powers in a public official capacity including, inter alia, in compliance with any procedure adopted by a court for informing a news media organisation of the existence and content of a suppression or non-publication order made by the court: s 15(b). It has been observed that the wide definition of “publish” tends to diminish the significance of the distinction between “disclosure” and “publication”: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at 64. Australian Broadcasting Corporation v Local Court of NSW [2014] NSWSC 239 at [84].

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public interest in open justice. 338 In Rinehart v Welker, the plurality regarded this provision as reinforcing “the legislative intention that CSPO Act orders should only be made in exceptional circumstances, a position which prevailed at common law”. 339 Young JA was more cautious, holding that safeguarding the public interest in open justice is only “a” primary objective of the administration of justice, not “the” primary objective, thus making it clear that “the courts do not exist merely to be a ready source of material for the media”. 340 In Ibrahim, the Court of Appeal stated that s 6 will not impede a court from making an order when one of the grounds in the Act is made out; moreover, the import of the section will vary with the extent to which an order would interfere with open justice. 341 Section 7 empowers the courts to make suppression or non-publication orders that prohibit or restrict the publication or other disclosure of information that: • tends to reveal the identity of, or otherwise concerns, any party 342 or witness in proceedings before the court or any person who is related to, or otherwise associated with, any party or witness; or • comprises evidence, or is about evidence, given in proceedings before the court. 343 These orders can be made in civil or criminal proceedings. 344 Since the inherent powers of the courts are preserved by the Act, courts can make suppression and non-publication orders in respect of information not covered by s 7. In Ibrahim the Court of Appeal held that s 7 empowers courts to make orders in respect of two categories of information: information that is (or would be) revealed or disclosed in proceedings (“proceeding non-publication orders”) and information the publication of which could give rise to a charge of sub judice contempt because it has a tendency to prejudice a

338

339 340 341 342

343

344

The more accurate proposition is actually the reverse: the proper administration of justice is the primary objective of open justice. This is the thrust of Scott v Scott [1913] AC 417. This point is made in J Bosland and A Bagnall, “An Empirical Analysis of Suppression Orders in the Victorian Courts: 2008-12” (2013) 35 Sydney Law Review 671 at 695. Rinehart v Welker [2011] NSWCA 403 at [27] per Bathurst CJ and McColl JA. Rinehart v Welker [2011] NSWCA 403 at [81], [85]. See also Rinehart v Welker [2011] NSWCA 345 at [38] per Tobias AJA. Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at 57. “Party” is broadly defined to include the complainant or victim in criminal proceedings, anyone named in evidence given in proceedings and a person who was a party to the proceedings before the proceedings concluded: s 3. The reference to evidence given in proceedings before the court should not be interpreted narrowly to mean that only evidence that has already been given in court can be the subject of an order under s 7: Rinehart v Welker [2011] NSWCA 403 at [136]. Moreover, although the Act does not specifically authorise the suppression or non-publication of judgments or court orders, Brereton J suggested that “in many cases judgments would, at least in part, be covered by ‘information about evidence’ in s 7(b)”: Welker v Rinehart [2011] NSWSC 1094 at [19]. Court Suppression and Non-publication Orders Act 2010 (NSW) s 3.

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pending proceeding (“general non-publication orders”). 345 However, the power to make general suppression orders was held to be no wider than the inherent powers of the Supreme Court to deal with prejudicial publicity in order to prevent a sub judice contempt. 346 It has already been explained that orders pertaining to information in the first category impinge on the principle of open justice, whereas orders pertaining to information in the second category do not, since they do not prohibit the publication of information about a proceeding. 347 The direction in section 6 is therefore apposite only to proceeding non-publication orders. 348 Section 7 does not specify who an order binds. While the Agreement in Principle Speech describes the provision as the “legislative sanction that is required to bind all members of the public, not just those who are present at proceedings”, 349 Ibrahim suggests that such orders, though clearly able to target third parties, cannot bind the world at large. 350 Section 8 provides that a court may make a suppression or non-publication order under s 7 only if the order is “necessary” 351 on one or more of the following grounds (which must be specified in the order): 352 • to prevent prejudice to the proper administration of justice. 353 General non-publication orders can only be made under this ground. 354 Differences of opinion have been

345

346 347

Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at 62. It is the reference in s 7(a) to information “otherwise concerning” a party or witness that is the source of the courts’ power to make general suppression orders (at 63), including orders preventing public access to extant material on a website (at 69). Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at 70. See [5.210].

348

Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at 62. The Court anticipated an argument that, in light of the direction in s 6, the powers conferred by s 7 were not intended to apply to potentially contemptuous publications in advance of a trial. However, it held that such an interpretation would be inconsistent with the expansive grounds listed in s 8: at 63.

349

Agreement in Principle Speech for the Court Suppression and Non-publication Orders Bill 2010, NSW, Legislative Assembly, Parliamentary Debates, 29 October 2010, 27197. See also Rinehart v Welker [2011] NSWCA 403, where the plurality observed that the Act was enacted in part to resolve the question whether a court’s inherent or implied power to make proceeding non-publication orders could support the making of orders that bind the world at large: at [25]. Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at 70. The view of the meaning of “necessary” taken at common law is applied to the meaning of “necessary” in the Court Suppression and Non-publication Orders Act 2010 (NSW): Rinehart v Welker [2011] NSWCA 403 at [27]-[31]. In each case the order must be necessary “to protect an identified interest”: Matthews v R (No 2) [2013] NSWCCA 194 at [5].

350 351

352 353

This ground is not, in its terms, confined to the administration of justice in the particular case in respect of which the order is sought, but includes situations where there are consequences for the administration of justice in future cases: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at 66.

354

All the other grounds are directed at empowering a court to “protect parties and witnesses in proceedings before it from the disclosure of information about them to the general public”: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at 63.

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expressed as to whether this provision is wider or narrower than its common law counterpart. 355 This ground was the subject of judicial consideration in Rinehart v Welker. Example

Rinehart v Welker [5.430] Rinehart v Welker [2011] NSWCA 403 Three children of mining magnate Gina Rinehart alleged misconduct in her administration of a trust under which they were beneficiaries and commenced legal proceedings to have her replaced as trustee. 356 Gina Rinehart applied for a stay of the proceedings. She argued that the judicial proceedings were commenced for a breach of the trust deed without the parties having gone through the confidential dispute resolution processes that were contemplated by clause 20 of that deed. The confidentiality agreed upon by the parties also formed the basis of an application by Rinehart for a suppression order under the Court Suppression and Non-publication Orders Act 2010 (NSW). The suppression order was initially made by Brereton J 357 and was continued on an interim basis after the stay application had been dismissed in view of the likelihood of an appeal against its dismissal. 358 An application for leave to appeal against the refusal of the stay was duly filed by Gina Rinehart. An application for a fresh suppression order in respect of the appeal was also made. The order was granted by Tobias AJA pursuant to s 8(1)(a) 359 but was discharged on appeal. 360 The Court of Appeal (Bathurst CJ, McColl and Young JJA) held that the order was not necessary to prevent prejudice to the proper administration of justice; on the contrary, it “would undermine, rather than ensure, public confidence in the administration of justice”. The Court of Appeal found that Tobias AJA had erred in a number of respects. The main error was that he had wrongly allowed a private agreement to outflank open justice, which is a primary aspect of the administration of justice. 361 Young JA held that a private

355

In Rinehart v Welker [2011] NSWCA 345, Tobias AJA was inclined to the view that s 8(1)(a) was wider than the common law. His Honour stated that the purpose of the statute was to permit the making of suppression or non-publication orders in circumstances that “would not necessarily conform to the exceptions which the common law has recognised to the principle of open justice”: at [45].

356

A fourth child, Ginia Rinehart, was initially a plaintiff but subsequently changed sides and became a defendant. Welker v Rinehart [2011] NSWSC 1094. The order covered the relief claimed or any pleading, evidence or argument filed, read or given in the proceedings.

357 358

Rinehart v Welker (No 2) [2011] NSWSC 1238. The order prohibited disclosure by publication or otherwise of information as to any relief claimed in the proceedings or any pleading evidence or argument filed read or given in the proceedings. It did not prohibit disclosure of, inter alia, the judgment or orders. Certain media interests sought to have the interim orders set aside but were unsuccessful in doing so: Welker v Rinehart [2011] NSWSC 1636.

359 360 361

Rinehart v Welker [2011] NSWCA 345. Rinehart v Welker [2011] NSWCA 403. Other grounds of error included the following: Tobias AJA failed to approach the question of whether a suppression order should be granted on a basis which had the least adverse impact on open justice; His Honour failed to give adequate weight to the fact that the proper conduct of trustees is a matter which “warrants close public scrutiny” and was “a proper factor to take into account in determining whether a

286 [5.430]

Chapter 5 – Media and Open Justice Rinehart v Welker cont. agreement between parties will not suffice to ground a non-publication order made on the basis of the administration of justice. 362 In similar vein, the plurality explained that Tobias AJA “made the order under s 8, at least in part, to give effect to the maxim pacta sunt servanda (agreements are to be kept)”. In so doing, His Honour treated the fact of the parties’ agreement in clause 20 as “effectively determining the question whether a suppression order should be made”. 363 However, party autonomy, while important, “is not determinative of the question whether, on an application for such a stay, it is necessary for the proper administration of justice for the Court to make a suppression order to give effect to a provision … prohibiting disclosure of the nature of the dispute both before, during and after the arbitration proceedings”. 364 While party autonomy should be accorded respect, “once a court’s supervisory jurisdiction is invoked, the fact that an arbitration is held in private is only a factor relevant to the question whether the proceedings should be heard in open court”. 365 Special leave to appeal to the High Court was refused. 366

[5.440] • to prevent prejudice to the interests of the Commonwealth, a State or a Territory in relation to national or international security; • to protect the safety of any person. This ground has been the subject of judicial consideration in several cases. 367 These decisions have held that the provision is principally directed at protecting the lives or physical wellbeing of people where these are placed in jeopardy by reason of the identification of them in relation to court proceedings; 368 it does not cover mere “upset or emotional sequelae” that might be caused by “unsatisfactory, unpleasant or even vicious comment” about a person involved in legal proceedings. 369 The threat to safety must be tangible in order for an order to be “necessary” and the risk to safety must arise from the material sought to be suppression order was necessary” (at [52]); and His Honour erred in finding that failure to make the suppression order would render the proceedings nugatory (the plurality found that disclosure of the information the subject of the suppression order would not in fact result in the destruction of the whole matter in dispute). 362

Rinehart v Welker [2011] NSWCA 403 at [93].

363 364 365

Rinehart v Welker [2011] NSWCA 403 at [51]. Rinehart v Welker [2011] NSWCA 403 at [51]. Rinehart v Welker [2011] NSWCA 403 at [45], citing Department of Economics, Policy and Development of the City of Moscow v Bankers Trust Co [2004] EWCA Civ 314. It reflects the view expressed in Scott v Scott that a court cannot be closed simply because the parties consent. Rinehart v Welker [2012] HCATrans 57 (9 Mar 2012).

366 367

See, eg: X v Sydney Children’s Hospitals Specialty Network & Anor [2011] NSWSC 1272; Welker v Rinehart (No 5) [2012] NSWSC 45; Welker v Rinehart (No 6) [2012] NSWSC 160; Welker v Rinehart (No 7) [2012] NSWSC 222.

368

AD v Morrison [2013] NSWSC 625. Informers and the like are the kind of persons likely to attract the protection of this provision. AD v Morrison [2013] NSWSC 625 at [13]-[14]. See also: Welker v Rinehart (No 5) [2012] NSWSC 45.

369

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suppressed. 370 Accordingly, the following factors are insufficient: a general concern for one’s safety; a mere possibility of hardship, such as a child being disadvantaged because a parent’s name is mentioned in court; 371 or a fear that if the proceedings attract publicity, the publicity might come to the attention of persons who could constitute a threat to the parties to the litigation. 372 A court may, however, be more prepared to suppress the publication of information which would identify a party’s residence or contact details. In Welker v Rinehart (No 5) the Court explained that such an order is “consistent with the protocol adopted by the court in dealing with the personal information of any party to court proceedings”. 373 In D1 v P1 two possible interpretations of “necessity” in the context of s 8(1)(c) were canvassed, although no decision was made as to which is correct. 374 The first is to treat it as a “precondition to the operation of the section that as a matter of probability the person in question would suffer harm if an order was not made”. 375 If this is required, the court must consider whether there are other ways of preventing the probability of harm. If the evidence established that a more limited prohibition on publication, “whilst not eliminating the risk or possibility of serious injury, would have the effect of not rendering the risk that such injury would occur probable, a court would not be entitled to make a more extensive order in reliance on section 8(1)(c)”. 376 The alternative interpretation is to simply require the court to be satisfied that the order is necessary to protect a person’s safety, in which case: proof of the probability of harm is not a precondition. The necessity for such an order will be informed by the nature, imminence and degree of the likelihood of harm occurring to the relevant person. If the prospective harm is very severe, it may be more readily concluded that an order is necessary even if the risk is a possibility as opposed to a probability. 377

It would still be necessary to consider alternative steps to the making of the suppression order in “determining whether the order was in fact necessary”. 378 • to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency); 379 370 371

Welker v Rinehart (No 6) [2012] NSWSC 160. Ashton v Pratt [2011] NSWSC 1092.

372 373 374 375

Welker v Rinehart (No 5) [2012] NSWSC 45. Welker v Rinehart (No 5) [2012] NSWSC 45 at [22]. D1 v P1 [2012] NSWCA 314. D1 v P1 [2012] NSWCA 314 at [49].

376 377 378

D1 v P1 [2012] NSWCA 314 at [50]. D1 v P1 [2012] NSWCA 314 at [51]. D1 v P1 [2012] NSWCA 314.

379

Section 8(1)(d) does not apply to distress or embarrassment in civil proceedings which concern conduct of a sexual nature. Thus an order in such cases – usually for concealment of the plaintiff’s identity – can be made only under s 8(1)(a) or (e): State of New South Wales v Plaintiff A [2012] NSWCA 248 at [95]. In order to satisfy the necessity test, a party seeking anonymity on one of these grounds would need to place material before the court to suggest that, if named, he or she would be inhibited in bringing the proceedings, or that naming him or her would deter others who have been the victims of sexual attacks as children from bringing proceedings: State of New South Wales v Plaintiff A [2012] NSWCA 248 at [96].

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• the order is otherwise necessary in the public interest to be made and that public interest significantly outweighs the public interest in open justice. There is considerable disquiet about this ground, as it appears to permit suppression or non-publication orders to be made in circumstances which go beyond those recognised at common law. It is said to have spawned a significant increase in the number of suppression orders. 380 A number of variables impact on what is considered necessary under s 8. 381 They include: the extent of the impact on open justice, the particular grounds relied upon, the nature and extent of the orders sought, the factual circumstances in which they are sought, the purposes to be served in the proceedings to which they relate, 382 the purpose of the order and its effectiveness. 383 For example, where an order is sought to prevent prejudice to the proper administration of justice, the prejudice may be a possibility or a near certainty. If it eventuates, the result may be minor or it may cause the collapse of a trial. 384 The order itself might “diminish a risk of prejudice” or “obviate the risk entirely”. 385 Although the Act is designed to be self-contained, the Court of Appeal has indicated that common law principles must be brought to bear on its interpretation. There are two reasons for this. First, s 4 makes it clear that the inherent power of courts to uphold the integrity of their processes is preserved, and “the approach of the courts under the inherent power provides some guidance as to the approach to be adopted when exercising the statutory power”. 386 Moreover, the principle of legality demands that the statutory scheme be construed in a manner that has “the least adverse impact upon the open justice principle and common law freedom of speech”. 387 Thus, where constructional choices are open, the courts must “minimise its intrusion upon that principle”. 388 Nevertheless, to the extent that the Act takes a less restrictive approach to suppression orders than the common law, it must be applied according to its terms. The Act addresses a number of procedural issues. A court may make a suppression or non-publication order on its own initiative or on the application of a party to the proceedings or 380

381

P Bateman, The Rise and Rise of Suppression Orders’ Gazette of Law and Journalism, 13 March 2013; Media Entertainment and Arts Alliance, Kicking at the Cornerstone of Democracy: The State of Press Freedom in Australia’ (Report, May 2012); J Bosland and A Bagnall, “An Empirical Analysis of Suppression Orders in the Victorian Courts: 2008-12” (2013) 35 Sydney Law Review 671 at 696. Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at 65.

382

Different proceedings, governed by a different purpose, may yield a different outcome in terms of public disclosure of information: Lend Lease (Millers Point) Pty Limited v Barangaroo Delivery Authority [2013] NSWSC 1848 at [42]-[43].

383

Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at 56, 65. The medium of communication may also be an important factor. For example, in Bissett v Deputy State Coroner [2011] NSWSC 1182 transcripts were not suppressed, but a DVD was. Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at 65.

384 385 386 387 388

Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at 65. Rinehart v Welker [2011] NSWCA 403 at [99]. Rinehart v Welker [2011] NSWCA 403 at [26]. Rinehart v Welker [2011] NSWCA 403, citing Hogan v Hinch (2011) 243 CLR 506 at 526, 534 per French CJ and Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 55 per Kirby J.

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any other person the court considers has a sufficient interest in the making of the order. 389 Each of the following persons is entitled to be heard on an application for an order: the applicant; a party to the proceedings; a Commonwealth, State or Territory government or government agency; a news media organisation; 390 and any other person who, in the court’s opinion, has a sufficient interest in the question of whether an order should be made. 391 A suppression or non-publication order may be made at any time during proceedings or after they have concluded and may be made subject to such exceptions and conditions as the court thinks fit. 392 The order must specify the information to which it applies with sufficient particularity to ensure that it is limited to achieving the purpose for which it is made. 393 Interim suppression or non-publication orders may be made by a court without determining the merits of the application, but thereafter the application must be determined as a matter of urgency. 394 A suppression or non-publication order is not limited in its application to New South Wales. It can be made to apply to the disclosure or publication of information anywhere in the Commonwealth provided this is specified in the order and the court is satisfied that its application outside New South Wales is necessary to achieve the purpose for which the order is made. 395 A suppression or non-publication order operates for the period decided by the court. 396 The period must be specified in the order, either by reference to a fixed or ascertainable period or by reference to the occurrence of a specified future event. In fixing a period, the court must ensure that the order operates for no longer than is reasonably necessary to achieve its purpose. The court that made a suppression or non-publication order may review the order, either on its own initiative or on the application of a person who is entitled to apply for the review. 397 On review, the court may confirm, vary or revoke the order or make any other order that can be made under the Act. Provision is also made for appeals, with the leave of the appellate court, against the decision of the original court to make or not make an order or against the order of that court on a review. 398 An appeal is by way of rehearing de novo 399 and fresh or substituted evidence may be adduced. 389 390

391 392 393 394 395 396 397

398

Court Suppression and Non-publication Orders Act 2010 (NSW), s 9(1). A news media organisation means a commercial enterprise that engages in the business of broadcasting or publishing news or a public broadcasting service that engages in the dissemination of news through a public news medium: s 3. Court Suppression and Non-publication Orders Act 2010 (NSW), s 9(2). Court Suppression and Non-publication Orders Act 2010, s 9(3), (4). Court Suppression and Non-publication Orders Act 2010, s 9(5). Court Suppression and Non-publication Orders Act 2010, s 10. Court Suppression and Non-publication Orders Act 2010, s 11. Court Suppression and Non-publication Orders Act 2010, s 12. Court Suppression and Non-publication Orders Act 2010, s 13. This provision is confined to a review by the original court which granted the order: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at 55; D1 v P1 [2012] NSWCA 314 at [42]. The same persons can apply for, or be heard on, a review as can apply for, or be heard on, the making of an order: s 13(2). Court Suppression and Non-publication Orders Act 2010 (NSW), s 14. See Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at 55.

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A person commits an offence if he or she engages in conduct that contravenes a suppression or non-publication order and is reckless as to whether the conduct constitutes a contravention. 400 The offending conduct that constitutes an offence under this section may be punished as an offence or as a contempt of court, but the offender is not liable to be punished twice. 401 However, no offence is committed unless the person has had the order brought to their attention. 402

Northern Territory [5.450] In the Northern Territory, all courts have power in any proceeding, civil or criminal, to direct persons to leave the court while evidence is being given, to prohibit the publication of evidence or an account or report of evidence either absolutely or subject to conditions, or to forbid the publication of the name of a party or witness. 403 Orders of this nature can be made where it appears to the court that the publication of any evidence is likely to offend against public decency or where it appears to the court that it is desirable to prohibit the publication of the name of a party or witness for the furtherance of, or in the interests of, the administration of justice. Provision is also made for the publication of evidence given in a proceeding to be temporarily prohibited where a witness has been ordered out of court in the course of a proceeding and the court considers this to be desirable in the interests of the administration of justice. 404 The Northern Territory Supreme Court is specifically empowered to exclude the public or specified persons, but there is no stipulation as to the circumstances in which such an order can be made. 405 However, unless the parties otherwise agree, evidence must be given orally in open court. 406 The Justices Act (NT), which relates to justices of the peace, provides that the room in which a Court of Summary Jurisdiction sits is deemed to be an open court to which the public have access. However, this provision does not require a case to be heard in open court if another statute requires or authorises it to be heard in camera. 407 In the case of a committal for an indictable offence, the room or building in which an examination is taken is not deemed an open court and the justice may, if it appears that the ends of justice will be 399 400

401 402 403

404 405 406 407

Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at 56; D1 v P1 [2012] NSWCA 314 at [43]. Court Suppression and Non-publication Orders Act 2010 (NSW), s 16(1). The maximum penalty for an individual is 1,000 penalty units or imprisonment for 12 months, or both and 5,000 penalty units for a body corporate. Court Suppression and Non-publication Orders Act 2010 (NSW), s 16(2)-(4). Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at 71. Evidence Act (NT), ss 57, 59. These orders can be made before, during or after the proceedings and must be reported to the Director of Public Prosecutions. The name of a party or witness includes a reference or allusion to a party or witness which is sufficient to disclose their identity: s 57(2). See s 5 regarding the application of these provisions. Evidence Act (NT), ss 58, 59. Supreme Court Act (NT), s 17. Supreme Court Act (NT), s 73. This provision is expressed to be subject to the Supreme Court Act, the Supreme Court Rules and any other Territory law. Justices Act (NT), s 61.

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best answered by so doing, order that no person shall have access to or remain in the room or building without the justice’s consent or permission. 408 Magistrates possess similar powers. 409 The Court Security Act 1998 (NT) provides for a court to be closed or members of the public excluded or not admitted if this is necessary to secure order and safety in the court premises. 410 Journalists in the Northern Territory have at times experienced difficulty in reporting on legal proceedings conducted on Aboriginal land, since a permit is required from the relevant Land Council to enter the land. In 2006, a number of media organisations sought legislative amendment to the permit scheme, alleging that it can operate in a manner that violates the principle of open justice in so far as it inhibits entry to court cases conducted on Aboriginal land. Section 70G of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) now provides that a person may enter or remain on vested Aboriginal land for the purpose of attending or leaving a court hearing held on the land, provided the court hearing is open to the public.

Queensland [5.460] The business of the District Court and the Supreme Court is to be conducted in open court. 411 However, subject to any Act, the court may, if the public interest or the interests of justice require, by order limit the extent to which the business of the court is open to the public. The place in which a justice sits to hear and determine a complaint upon which a conviction or order may be made is also declared to be an open and public court; persons can be excluded only in the interests of public morality. 412 By contrast, the place in which justices take the examinations and statements of persons charged with indictable offences for the purpose of committal for trial and the depositions of witnesses is not deemed to be an open court, and justices may order that no person can be in that room without their permission if the ends of justice so require. 413 There is also a prohibition on the taking of photographs in or near the room in which a justice or magistrate is conducting a proceeding without the prior consent of the justice or magistrate. 414 Publishing information in the media about a private complaint taken against a person is prohibited until it is established that the complaint is not an abuse of process or frivolous or vexatious. 415

408

Justices Act (NT), s 107.

409 410 411

Magistrates Act (NT), s 18. Court Security Act (NT), s 17. District Court of Queensland Act 1967 (Qld), s 126; Supreme Court of Queensland Act 1991 (Qld), s 8.

412 413

Justices Act 1886 (Qld), s 70. A justice is defined to include a magistrate and a justice of the peace: s 4. See also s 38. Justices Act 1886 (Qld), s 71.

414 415

Justices Act 1886 (Qld), s 71B. Justices Act 1886 (Qld), s 102F.

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South Australia [5.470] Part 8 of the Evidence Act 1929 (SA) contains the scheme for making in camera and non-publication orders. It is unclear whether it constitutes a statutory code which replaces any inherent or implied powers that might otherwise exist. 416 In South Australia, a court 417 may order persons to absent themselves from any proceeding where it considers that such an order is desirable in the interests of the administration of justice 418 or to prevent hardship or embarrassment to any person. 419 A court may make a “suppression” order in two circumstances. 420 They are: to prevent prejudice to the proper administration of justice 421 and to prevent undue hardship to an alleged victim of crime, to a witness or potential witness in a civil or criminal proceeding who is not a party to that proceeding, or to a child. 422 The reference to a child was inserted into the Evidence Act in 1999 to protect children who are neither victims nor witnesses in a proceeding, but who have some connection with the proceeding such that their welfare might be harmed by the publication of their identity. 423 Hardship to a defendant in a criminal proceeding or to a litigant in a civil proceeding is not a ground for an order. 424 However, a court would be entitled to suppress the identity of a litigant if this was necessary to prevent prejudice to the administration of justice, or to avoid undue hardship to a victim, witness or 416

Attorney-General (SA) v Kernahan (1981) 28 SASR 313 at 314 suggests that it is a code, but a different view was taken in Legal Practitioners Conduct Board v Viscariello (No 2) [2013] SASCFC 47 at [11], [15].

417 418

A court is defined to include any person acting judicially: Evidence Act 1929 (SA), s 68. The proper administration of justice includes, but is not confined to, the right of an accused to a fair trial: Advertiser Newspapers Ltd v V [2000] SASC 366; Advertiser Newspapers Ltd v Bunting [2000] SASC 458; B, RD v Channel Seven Adelaide Pty Ltd [2008] SASC 282 at [23]-[25]. Evidence Act 1929 (SA), s 69(1). Excluded persons can apply for a transcript of the evidence and a record of proceedings taken during their absence, and may appeal against a refusal of the application: s 69(2), (3). Special provision is made for such an order to be made in relation to a child victim of a sexual offence who is giving evidence: s 69(1a). See also: Supreme Court of South Australia, Supreme Court (Civil) Rules 2006, r 9; District Court of South Australia, District Court (Civil) Rules 2006, r 9. Evidence Act 1929 (SA), s 69A(1). See Advertiser Newspapers Ltd v Bunting [2000] SASC 458. For the meaning of “hardship” see G v The Queen (1984) 35 SASR 349; Re F (1989) 51 SASR 141 at 147; Channel Seven Pty Ltd v Draper [2004] SASC 351. For the meaning of “undue” see Packer v Police [2007] SASC 98. It has been noted that the section does not employ a test of necessity and is less restrictive than the common law: A Kenyon, “Not Seeing Justice Done: Suppression Orders in Australian Law and Practice” (2006) 27(2) Adelaide Law Review 279 at 291. Second Reading Speech, Evidence (Miscellaneous) Amendment Act 1999 (SA). For example, the child might be victimised at school, ostracised in social situations or otherwise suffer hardship. Under the Act as amended, the court can make a suppression order to protect such a child. It is not necessary that the child fall into any particular category or have any particular connection with the parties or the case. For some examples of suppression orders that have been sought in order to prevent undue hardship to a child see: Medical Board of South Australia v AYHT [2001] SADC 25; Advertiser Newspapers Pty Ltd v SA Police [2006] SASC 36; Packer v Police [2007] SASC 98. It has been suggested that the distinction between victims, witnesses and children on the one hand, and the parties on the other, is based on the fact that “unlike the parties, non-parties to the proceedings have little opportunity to defend themselves in legal proceedings against any negative imputations which may arise and therefore have a greater need for protection from adverse publicity. Further, victims and witnesses may be unwilling to testify unless they are protected from publicity”: New South Wales Law Reform Commission (2000), para [10.88].

419

420 421 422

423

424

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child. 425 The matters that can be suppressed by a South Australian court are the publication of specified evidence or an account or report of evidence, or the name or other material which would identify a party, a witness or a person alluded to in the course of the proceedings. 426 The two matters are distinct. 427 When considering whether to make a suppression order (other than an interim suppression order), a court “must recognise that a primary objective in the administration of justice is to safeguard the public interest in open justice and the consequential right of the news media to publish information relating to court proceedings”. 428 A court may proceed to make a suppression order only “if satisfied that special circumstances exist giving rise to a sufficiently serious threat of prejudice to the proper administration of justice, or undue hardship, to justify the making of the order in the particular case”. 429 These provisions were inserted with the intention that they would raise the threshold for the grant of a suppression order by requiring the court to give more weight to the public interest in publication, and would therefore result in a decline in the number of suppression orders. 430 An interim suppression order can be made without an inquiry into the merits of the application, but where this is done, the court must determine the application as a matter of urgency and, wherever practicable, within 72 hours. 431 A court making a suppression order should deliver reasons, although they need only be brief. 432 A suppression order can be varied or revoked. 433 The legislation contains a provision that governs standing. Amongst the persons who are entitled to be heard when an application is made for a suppression order, or on an application for the variation or revocation of an order, are a representative of a newspaper or a radio or

425 426

427 428 429

430

431 432 433

X v South Australia [2002] SASC 53 (a party to a proceeding is not prevented from seeking an order based on undue hardship if he or she is also an alleged victim of crime). Evidence Act 1929 (SA), s 68. “Evidence” is defined widely to include any statement made before a court whether or not it constitutes evidence for the purposes of the proceeding before the court: s 68. Thus it is not confined to formal or even informal evidence and can encompass the submissions of counsel or other statements by or on behalf of the parties made before a court: Channel Nine SA Pty Ltd v Police [2014] SASC 69 at [36]. A court does not need to wait until after the evidence is adduced before prohibiting its publication; it can forbid the publication of evidence to be adduced in future provided that the evidence is sufficiently identified so that the court can assess whether the pre-requisites for the exercise of its powers are met. A court is not empowered to impose a blanket ban on whatever evidence might be adduced regardless of content: Channel Nine SA Pty Ltd v Police [2014] SASC 69 at [45]. Channel Seven Pty Ltd v An Accused (2008) 103 SASR 459 at [39]. Evidence Act 1929 (SA), s 69A(2)(a). The news media are defined to mean those who carry on the business of publishing: s 68. Evidence Act 1929 (SA), s 69A(2)(b). For an explanation of the meaning of s 69A(2) see: B, RD v Channel Seven Adelaide Pty Ltd [2008] SASC 282 at [18]-[28], [63]-[69]; Advertiser Newspapers Pty Ltd v B, RD [2008] SASC 362; Director of Public Prosecutions v B [2013] SASC 120. South Australian Parliament Parliamentary Debates, 30 August 2006, p 785 (AG, Michael Atkinson). South Australia had a reputation of being the suppression capital of Australia, although this title may now belong to Victoria. Evidence Act 1929 (SA), s 69A(3). Advertiser Newspapers Pty Ltd v SA Police [2006] SASC 36. Evidence Act 1929 (SA), s 69A(6).

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television station. 434 The court is empowered to delay the determination of an application to facilitate non-party intervention in the proceedings but is not obliged to do so. Although the media have a right to make submissions, they can call or give evidence only with the leave of the court. Leave is required as conferring a right on an intervener to call evidence could cause substantial delay, inconvenience and expense. 435 Suppression orders must be reviewed at specific stages during trials and inquests, thereby ensuring that they do not remain in force any longer than necessary. 436 For example, a suppression order made in a criminal proceeding has to be reviewed on the completion or termination of a preliminary examination, on the withdrawal of a charge after the completion of a preliminary examination, on the acquittal of a defendant, when an appeal against conviction or sentence has been determined or all rights to appeal have been exhausted or expired, and when proceedings are otherwise concluded or terminated. A suppression order that relates to a civil proceeding becomes liable to review when a court gives judgment in the proceeding, or the proceeding is settled or withdrawn. Provision is also made for appeals against suppression orders. 437 The media are among those who are entitled to institute or be heard on a review or on an appeal. A copy of a suppression order must be forwarded by the court to the registrar as soon as practicable, and placed on a register which is open for public inspection. 438 The registrar must notify media organisations of suppression orders that have been entered in the register. 439 The court is also obliged to furnish the Attorney-General with a report of the terms of any suppression order, the name of any person whose name is suppressed from publication, a transcript or other record of any evidence suppressed from publication and full particulars of the reasons why the order was made. 440 The Attorney-General must report annually to Parliament on the number of suppression orders made (in total and by each court) and a summary of the reasons assigned by the courts for making the orders. 441 Legislation in South Australia also imposes specific obligations on the media when reporting criminal proceedings. A newspaper or radio or television station that publishes a report of proceedings against a person for a criminal offence before the result is known, and which identifies that person, must publish a fair and accurate report of the result of the 434

435

Evidence Act 1929 (SA), s 69A(5), (6). It has been observed that this does not include groups such as Crikey.org.au. Such groups would have to demonstrate that they have a “proper interest in the question of whether a suppression order should be made”: D Barnfield, “Effectiveness of Suppression Orders in the Face of Social Media” (2011) 33(4) Law Society of South Australia – Bulletin 16. New South Wales Law Reform Commission (2000), para [10.102].

436

Evidence Act 1929 (SA) s 69AB.

437 438

Evidence Act 1929 (SA), s 69AC. Evidence Act 1929 (SA), s 69A(8) – (11). The same requirement applies to variations and revocations of orders.

439

The notification is required to be transmitted by fax, email or other electronic means immediately after it is entered in the register. However, the entry of such an order in the register is notice to the news media and the public generally (within and outside the State) of the making and terms of the order, although courts are free to make other notification arrangements: Evidence Act 1929 (SA), s 69A(12).

440 441

Evidence Act 1929 (SA), ss 69A(8). Evidence Act 1929 (SA), s 71. See New South Wales Law Reform Commission (2000), paras [10.69]-[10.71].

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proceedings if the accused person is ultimately acquitted. 442 The report of the result must be published as soon as practicable after the determination of the proceedings and must be reasonably prominent, having regard to the prominence of the earlier report. If, on the other hand, a report of proceedings is not published until after the result of the proceedings is known, and the proceedings did not result in a conviction, that fact must be prominently stated. 443 Where an application has been made for the reservation of a question of law arising at the trial of a person who was tried on information and acquitted, a newspaper or radio or television station cannot publish a report in relation to the application or consequent proceedings which reveals the identity of the acquitted person without first obtaining that person’s consent. 444

Tasmania [5.480] In Tasmania, the place in which a justice sits to hear and determine a complaint upon which a conviction or order may be made is expressly declared to be an open and public court to which all persons have access. 445 A judicial officer in the lower courts may order a member or members of the public to be sent out of the court or refused admission to the court if he or she is of the opinion that, due to the character of the proceedings, it is undesirable in the interests of public morals and decency that members of the public be admitted to, or permitted to remain in, the court. 446 Moreover, all courts possess power to remove people from the courts, or refuse them admission to the courts, if this is considered necessary for the purpose of securing order or safety in the court. 447 All Tasmanian courts are empowered to forbid the printing or publication of evidence or argument if the court is of the opinion that this may prejudice, or be likely to prejudice, the fair trial of the case. 448 Justices are also empowered to impose restrictions on the publication of the identities of persons involved in proceedings for a restraint order. 449 It is an offence to

442 443

Evidence Act 1929 (SA), s 71B(1). Evidence Act 1929 (SA), s 71B(3).

444 445 446

Evidence Act 1929 (SA), s 71C. Judgments and technical publications are exempt from this requirement. Justices Act 1959 (Tas), s 37. But see s 37(2) regarding the exclusion of witnesses. Admission to Courts (Lower Courts) Regulations 2006 (Tas), reg 5. The regulations are made under the Admission to Courts Act 1916 (Tas), s 2. Admission to Courts (Lower Courts) Regulations 2006 (Tas), reg 5; Admission to Courts (Supreme Court) Regulations 2006 (Tas), reg 5. The Supreme Court can also exercise this power where it considers it to be in the public interest to do so. Evidence Act 2001 (Tas), s 194J. It is a contempt of court to publish material that the court has forbidden to be published: s 194J(2). Note that prejudice to a fair trial, rather than prejudice to the administration of justice generally, is the touchstone of this provision.

447

448

449

Justices Act 1959 (Tas), s 106K. Any reference or allusion to a person whose name is suppressed under this provision is taken to be a publication of their name. Orders made under this provision must be notified to the Attorney-General.

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publish an account of a bail application except an account which simply gives the fact of the application and states that an order has been made. 450

Victoria [5.490] In Victoria, the position in relation to in camera hearings and non-publication orders is primarily governed by the Open Courts Act 2013 (Vic) (OCA). This legislative scheme differs in several important respects from the SCAG model adopted by the Commonwealth and New South Wales. The OCA applies to the Supreme Court, the County Court, the Magistrates’ Court, the Coroners Court, the Victorian Civil and Administrative Tribunal (VCAT) and any other prescribed court or tribunal or prescribed person or body. 451 However, each of these courts and tribunals is treated differently under the Act.

Preliminary matters [5.500] The Act begins by specifying its relationship with the courts’ common law powers and contempt jurisdiction. Section 5 abrogates the courts’ common law powers to make orders prohibiting or restricting the publication of information in connection with any proceeding and provides that a court or tribunal has no implied jurisdiction to make such an order. The exception is the Supreme Court, whose inherent jurisdiction is expressly stated not to be limited or affected. 452 A different position is taken in relation to closed court orders. In that case, the courts’ inherent and implied jurisdiction and powers to regulate their proceedings, apart from the OCA, are not limited or affected. 453 Section 6 provides that the Act does not limit or affect any jurisdiction (including any inherent or implied jurisdiction) or any power that a court or tribunal has apart from this Act to deal with a contempt of the court or tribunal. Nevertheless, it is suggested that where the Act renders a breach of an order an offence and sets out penalties, it is unlikely that a court would resort to its contempt jurisdiction to punish a breach. 454 The position is otherwise where no offence is created by the Act, which is the case for broad suppression orders made by the Supreme or County Court and for pseudonym orders, which stand outside the Act. 450

451

452

453 454

Justices Act 1959 (Tas), s 37A. The prohibition does not apply to a report of proceedings in the Supreme Court or before a judge that is written as a law report, or to an account of such proceedings published after the final determination of the charge upon which the applicant was held in custody. The OCA does not mention the Children’s Court. However, under the Children, Youth and Families Act 2005 (Vic), s 528(1), the Children’s Court of Victoria has and may exercise all the powers and authorities that the Magistrates’ Court has in relation to the matters over which it has jurisdiction. This would appear to include the making of proceeding suppression orders under OCA s 17, broad suppression orders under OCA s 26 and closed court orders under OCA s 30 (but see Children, Youth and Families Act 2005, s 523 which allows the Children’s Court to sit in camera and which is not constrained by the grounds contained in s 30 OCA): Judicial College of Victoria, Open Courts Bench Book (2013) at [2.7]. Open Courts Act 2013 (Vic), s 5(1). However, the Supreme Court’s inherent jurisdiction is now subject to the statutory presumptions in favour of disclosure and hearings in public and to the procedural requirements set out in Pt 2 of the Act. Open Courts Act 2013 (Vic), s 29. This is subject to the presumption of openness in s 28. R v Nationwide News Pty Ltd (2008) 22 VR 116. See also Judicial College of Victoria, Open Courts Bench Book (2013) at [10.2].

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Section 7 provides that the Act does not limit or affect the making of an order or decision by a court or tribunal that: • requires information to be disclosed in the course of, or in relation to, a proceeding (examples include orders relating to the discovery of documents, interrogatories or subpoenas) and any rule of law that restricts the permitted use and disclosure of this information; 455 • concerns the admission of information into evidence; • conceals the identity of a person by restricting the way the person is referred to in open court or restricts the way an event or thing may be referred to in open court. This effectively means that concealment orders, including pseudonym orders, are unaffected by the OCA 456 and can continue to be made by courts pursuant to their inherent or implied powers, as the case may be; 457 • that prohibits or restricts access to a court or tribunal file. Section 8 spells out the relationship between the OCA and other legislation. It provides that the Act does not restrict or affect the operation of a provision made by or under any other Act that prohibits or restricts, or authorises a court or tribunal to prohibit or restrict, the publication or disclosure of information in connection with a proceeding or that requires or authorises a court or tribunal to close a proceeding to the public. A number of Acts are singled out as examples of legislation whose operation is unaffected by the Act. 458

Scope of Act [5.510] The Act applies to “suppression orders”, which are defined to mean: proceeding suppression orders; interim orders; general (or broad) suppression orders made by the County Court under s 25 or by the Magistrates’ Court under s 26; 459 and orders made by the Supreme Court in the exercise of its inherent jurisdiction that prohibit or restrict the publication or disclosure of information in connection with any proceeding, irrespective of whether the information is derived from the proceeding. To strengthen and promote the principles of open 455

456

457

458

459

This includes rules of law restricting the permissible use and further disclosure of compulsorily disclosed information, such as the rule considered in British American Tobacco Australia Services Ltd v Cowell (2003) 8 VR 571. ABC-1 v Ring [2014] VSC 5. If a court wants to suppress the publication of a name or information that is the subject of a concealment order it will need to make a non-publication order to that effect. Concealment orders and non-publication orders might therefore be made in tandem. However, they are not the same: Judicial College of Victoria, Open Courts Bench Book (2013) at [6.5.2]. Since concealment orders are not dealt with by the OCA, they are not subject to the constraints in Pt 2 of the Act. Moreover, conduct that frustrates a concealment order creates a potential liability in contempt but does not amount to an offence under the Act. Most of these listed provisions are subject specific. A note to s 8 recognises that other Acts, such as the Judicial Proceedings Reports Act 1958, the Witness Protection Act 1991 and Juries Act 2000, ss 77 and 78, impose blanket restrictions or prohibitions on the disclosure of information. When these provisions apply it is not appropriate for a court to make a suppression order under the OCA, as such an order would have no additional effect except to affirm what these provisions already require and on that basis would presumably fail the necessity test. The OCA uses the term “broad suppression order” to describe what this chapter has called a “general non-publication order”.

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justice and free communication of information, there is a presumption in favour of the disclosure of information to which a court or tribunal must have regard in determining whether to make a suppression order. 460 The OCA also governs closed court orders. As explained in [5.500], it does not apply to concealment orders.

Provisions that apply to all suppression orders made under the OCA [5.520] An applicant for a suppression order must give three business days’ notice of the making of the application to the court or tribunal in which the application will be made and to the parties on the record in the proceeding to which the application relates. 461 A court or tribunal may hear an application for a suppression order despite a lack of notice if satisfied that there was a good reason for the notice not being given (either at all or within the requisite time period) or it is in the interests of justice that the application be heard despite the fact that no notice was given. On receiving a notice of an application for a suppression order, the court or tribunal must take reasonable steps to ensure that any relevant news media organisation 462 is notified of the application, whether by electronic communication or any other appropriate means. 463 This requirement reflects the reality that news media organisations are most likely to act as contradictors to applications; as such, they provide the courts and tribunals with the benefit of arguments in favour of the principle of open justice and disclosure of information which impact on whether an order should be made and on its scope and duration. 464 A court or tribunal is not required to notify the news media that an order has actually been made, although it is the practice of Victorian courts to do so. In order to ensure that a suppression order operates for no longer than is reasonably necessary to achieve its purpose, the court or tribunal must determine the period for which a suppression order (other than an interim order) operates and specify that period in the order. 465 The period may be specified by reference to a fixed or ascertainable period or the 460

463

Open Courts Act 2013 (Vic), s 4. The wide definition of “suppression order” means that the courts must have regard to this presumption when making a proceeding suppression order under Pt 3, a broad suppression order under Pt 4 or when the Supreme Court is making an order in the exercise of its inherent jurisdiction. (Of course the presumption in favour of open justice has no application to general suppression orders.) Open Courts Act 2013 (Vic), s 10. This requirement does not apply when a court or tribunal makes a proceeding suppression order on its own motion. A “party” to a proceeding is widely defined to include, in the case of a criminal proceeding, the complainant, victim or alleged victim; any person named in evidence given in a proceeding; and, in relation to a proceeding that has concluded, a person who was a party to the proceeding. It has been suggested that this wide definition will need to be read down in the context of s 10, otherwise notice must be given to large numbers of people: Judicial College of Victoria, Open Courts Bench Book (2013) at [5.2]. A news media organisation means a commercial enterprise that engages in the business of broadcasting or publishing news or a public broadcasting service that engages in the dissemination of news through a public news medium: Open Courts Act 2013 (Vic), s 3. A “relevant” news media organisation means a news media organisation which the court or tribunal would ordinarily ensure was sent notice of the making of a suppression order. This will differ from court to court. The Explanatory Memorandum to the Open Courts Bill 2013 explains that the obligation is intended to utilise each court or tribunal’s current practice of notifying news media organisations of the making of a suppression order. Open Courts Act 2013 (Vic), s 11. See Supreme Court Practice Note 4 of 2013 – Open Courts Act 2013.

464 465

Explanatory Memorandum to the Open Courts Bill 2013 cl 11. Open Courts Act 2013 (Vic), s 12(1), (4).

461

462

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occurrence of a specified future event, which might be the conclusion of proceedings (by verdict or settlement), the exhaustion of appeal rights or the death of an individual involved in proceedings. 466 If the period is specified by reference to a future event that may not occur such as until the further order of the court or tribunal – the order must also specify a period not exceeding five years at the end of which the order expires unless sooner revoked. 467 This ensures that orders will not remain operative indefinitely if the specified event does not occur. A suppression order must specify the information to which it applies with sufficient particularity to ensure that it is limited to achieving the purpose for which it is made, does not apply to more information than is necessary to achieve its purpose and it is readily apparent from the terms of the order what information is subject to the order. 468 Moreover, the order must specify its purpose and, in the case of a proceeding suppression order or a broad suppression order made by the Magistrates’ Court, state the ground(s) on which it is made. 469 A court or tribunal must be satisfied on the basis of evidence or sufficient credible information that the grounds for making the order are established. 470 Provision is made for a court or tribunal to review an order, either on its own motion or on application, 471 and for an order to be confirmed, varied or revoked. 472 The OCA does not limit or affect any duty of a court or tribunal to publish reasons for their judgments or decisions, subject to the court or tribunal editing those reasons to the extent necessary to comply with any order of a court or tribunal or statutory provision restricting the publication of information. 473

466 467

Open Courts Act 2013 (Vic), s 12(2); Explanatory Memorandum to the Open Courts Bill 2013 (Vic) cl 12. Open Courts Act 2013 (Vic), s 12(3).

468 469 470

Open Courts Act 2013 (Vic), s 13(1). Open Courts Act 2013 (Vic), s 13(2). Open Courts Act 2013 (Vic), s 14. This requirement does not apply to interim suppression orders. It remains to be seen whether the reference to “credible information” permits courts to act on experience.

471

An application for review can be made by the applicant for the order, a party to the proceeding in connection with which the order was made, a Commonwealth, State or Territory Attorney-General, a news media organisation or any other person who, in the opinion of the court or tribunal, has a sufficient interest in the question of whether the order should be confirmed, varied or revoked. Each of these persons is entitled to appear and be heard by the court or tribunal on the review of a suppression order. Open Courts Act 2013 (Vic), s 15. Aside from this procedure for review, a party affected by a suppression order made by the Magistrates’ Court or the County Court could bring an application for judicial review of the order: Judicial College of Victoria, Open Courts Bench Book (2013) at [9.2]. Orders made by the Supreme Court can be the subject of an application for leave to appeal to the Court of Appeal: Judicial College of Victoria, Open Courts Bench Book (2013) at [9.2]. Open Courts Act 2013 (Vic), s 16.

472

473

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Proceeding suppression orders [5.530] Part 3 of the OCA applies to proceeding suppression orders. 474 Section 17 states that proceeding suppression orders prohibit or restrict the disclosure by publication 475 or otherwise of a report of the whole or any part of a proceeding (defined to include a civil or criminal proceeding) and any information derived from a proceeding. It is unclear whether information is “derived from a proceeding” if it can be shown that the subject of the publication was dealt with in evidence or argument in the proceeding, or whether the information contained in the report must have “come to the attention of the publisher (firstly, only or chiefly) from what was said and done in the proceeding”. 476 It is also unclear whether s 17 would allow a court to suppress the publication of reports of a proceeding other than the proceeding before it, such as a related trial. Section 18 provides that a court or tribunal, other than the Coroners Court, may make a proceeding suppression order only if it is satisfied the order is necessary on one or more of a number of grounds, 477 namely: • the order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice. The need for a “real and substantial risk of prejudice …” is more onerous than the usual requirement that an order be necessary in order not to “prejudice the administration of justice”. The judicial officer is directed to consider whether that risk can be addressed by “other reasonably available means”, such as giving a direction to the jury. This reflects the stance taken at common law of not imposing greater inroads on open justice than is necessary. • the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security; • the order is necessary to protect the safety of any person. As is the case under the SCAG model, it is generally necessary to adduce convincing evidence that the person’s safety is at risk, such as actual violence already perpetrated on that person or actual threats made. However, courts may act on belief or notoriety, particularly in respect of persons who are to be imprisoned and who fear for their safety at the hands of fellow inmates; 478 474

475

476 477

478

As noted in [5.500], only the Supreme Court retains its inherent jurisdiction to make proceeding suppression orders. The County Court and the Magistrates’ Court have been stripped of their implied power to make such orders and, together with VCAT and the Coroners Court, have power under s 17 alone. “Publish” is defined to mean “to disseminate or provide access to the public or a section of the public by any means, including by publication in a book, newspaper, magazine or other written publication, broadcast by radio or television, public exhibition or broadcast or electronic communication” and publication must be construed accordingly: s 3. The matter was alluded to in Re Application by Chief Commissioner of Police (Vic) (2005) 214 ALR 422 at [12] in a different context, but was not resolved. The word “may” does not give the court a discretion in the matter. If the court decides that an order is necessary on one or more of the specified grounds, it must be made: Hogan v Australian Crime Commission (2010) 240 CLR 651 at 664. See the comments made in R v Pomeroy [2002] VSC 178 and Witness v Marsden (2000) 49 NSWLR 429 at [6], where it was acknowledged that the safety of prisoners cannot always be ensured. However, in DPP v Rintoull [2010] VSC 30 at [15], which concerned the predecessor to s 18(1)(c) (which was in the same terms), a suppression order was not made because there was no evidence that protective custody would not

[5.530] 301

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• the order is necessary to avoid causing undue distress or embarrassment to a complainant or witness in any criminal proceeding involving a sexual offence or a family violence offence 479 or to avoid causing undue distress or embarrassment to a child who is a witness in any criminal proceeding. In most cases the undue distress and embarrassment will be experienced, if at all, at some point in the future, which makes the necessity test hard to satisfy. 480 There are two additional grounds on which VCAT can make proceeding suppression orders: where the order is necessary to avoid the publication of confidential information or information that is the subject of a certificate under ss 53 or 54 of the Victorian Civil and Administrative Tribunal Act 1998 (which relate to cabinet documents and Crown privilege) or for any other reason in the interests of justice. These additional powers are said to “reflect the diverse matters on which VCAT adjudicates, including applications involving health and other personal information made under lists such as the guardianship list and the human rights list”. 481 The Coroners Court is in a different position. A coroner may make a proceeding suppression order in the case of an investigation or inquest into a death or fire only if he or she reasonably believes that an order is necessary because disclosure would be likely to prejudice the fair trial of a person or be contrary to the public interest. 482 This discretion “seeks to balance the public’s interest in the information presented to a particular coronial inquiry with considerations including the right to privacy of individuals or families that may be identified in a proceeding”. 483 Proceeding suppression orders can be made by a court or tribunal on its own motion, or on the application of a party to the proceeding concerned or any other person considered by the court or tribunal to have a sufficient interest in the making of the order. 484 News media organisations are among those who can appear and be heard by the court or tribunal on an application for an order. 485 A proceeding suppression order may be made during a proceeding or after it has concluded. 486 Provision is also made for interim proceeding suppression

479 480 481 482 483 484 485

486

adequately address the safety concerns of the defendants; the prison authorities were deemed to be capable of protecting at risk prisoners. An order made on this ground might be futile if the person has already been identified and further identification would not place that person in any additional danger: DPP (Cth) v Magistrates Court of Victoria [2011] VSC 593. “Family violence offence” is defined in Open Courts Act 2013 (Vic), s 3. Judicial College of Victoria, Open Courts Bench Book (2013) at [4.6]. Victoria, Parliamentary Debates, Legislative Assembly, 27 June 2013, 2418 (Robert Clark, Attorney-General). These grounds are identical to the grounds in s 73(2) of the Coroners Act 2008 (Vic), which has been repealed. Victoria, Parliamentary Debates, Legislative Assembly, 27 June 2013, 2418 (Robert Clark, Attorney-General). Open Courts Act 2013 (Vic), s 19(1). Open Courts Act 2013 (Vic), s 19(2). Others who may appear and be heard are the applicant, a party to the proceeding concerned, any Commonwealth, State or Territory Attorney-General and any other person who, in the opinion of the court or tribunal, has a sufficient interest in the question of whether the order should be made. However, subject to rules of court or unless the court or tribunal otherwise orders, an applicant for a proceeding suppression order is only required to give notice of the application to the parties: s 19(3). Open Courts Act 2013 (Vic), s 19(4).

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orders. 487 A proceeding suppression order or an interim order applies only to the publication or disclosure of information in the place where the order applies. An order is not limited to applying in Victoria; it may be made to apply anywhere in Australia if the court or tribunal is satisfied that this is necessary to achieve its purpose. 488 The existence of a proceeding suppression order or an interim order does not prevent a person from performing certain official functions, including disclosing information in compliance with any procedure adopted by a court or tribunal for informing a person of the existence and content of the order. 489 A person must not engage in conduct that constitutes a contravention of a proceeding suppression order or an interim order if that person knows that an order is in force or is reckless as to whether an order is in force. In the absence of evidence to the contrary, a person is taken to be aware that a proceeding suppression order or an interim order is in force if a court or tribunal has electronically transmitted notice of the order to the person. The penalties for contravention are hefty. 490

Broad Suppression Orders [5.540] The term ‘broad suppression order’ is not used in the OCA except in the heading to Pt 4. The Act simply provides that a broad suppression order cannot be made in respect of any information which could be the subject of a proceeding suppression order. 491 Consequently, it cannot encompass suppression of a proceeding or information derived from a proceeding. Broad suppression orders will usually target extraneous information which has not been presented to a court, but which, if made public, could prejudice a fair trial. 492 The OCA does not confer express power on Supreme Court to make broad suppression orders. Therefore, the Supreme Court must make them pursuant to its inherent power. The only ground on which it can do so is the common law ground, namely, that the order is necessary to protect the administration of justice. 493 As explained in [5.500], the OCA abrogates the County Court’s common law powers, thereby removing any implied jurisdiction it may otherwise have had to make broad suppression orders. The sole source of the County Court’s power to make these orders is located in s 25 of the OCA. That section provides that the County Court has the same 487

Open Courts Act 2013 (Vic), s 20. When a court or tribunal makes an interim order, it must determine the substantive application for the proceeding suppression order as a matter of urgency.

488 489 490

Open Courts Act 2013 (Vic), s 21. Open Courts Act 2013 (Vic), s 22. Open Courts Act 2013 (Vic), s 23. In the case of an individual, the penalty is level 6 imprisonment (5 years maximum) or 600 penalty units, or both and in the case of a body corporate, it is 3000 penalty units. Open Courts Act 2013 (Vic), s 24.

491 492 493

Victoria, Parliamentary Debates, Legislative Assembly, 27 June 2013, 2418 (Robert Clark, Attorney-General). This preserves the position that prevailed prior to the OCA, as ss 18 and 19 of the Supreme Court Act 1986 (Vic) also did not confer such power: General Television Corporation Pty Ltd v DPP (2008) 19 VR 68 at 74-75.

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jurisdiction, and may exercise the same powers and authority, to grant an injunction 494 in a criminal proceeding restraining a person from publishing any material or doing any other thing to ensure the fair and proper conduct of the proceeding as the Supreme Court has in respect of a criminal proceeding in the Supreme Court. 495 Thus the mechanism by which the County Court may make broad suppression orders under the OCA is via the grant of the Supreme Court’s inherent jurisdiction. Since there is no grant of power to make broad suppression orders in civil proceedings, the County Court must rely on any subject specific powers it may possess. It has been noted that the County Court is empowered to make injunctions restraining a person from “publishing”, and since “to publish” is defined to include the provision of access, its power likely extends to the making of mandatory injunctions such as internet “take down” orders. 496 In so far as section 25 empowers the County Court to restrain a person from “doing any other thing” it may extend to the making of orders that are not suppression orders. 497 The OCA does not make it an offence to breach broad suppression orders made by the County and Supreme Courts. Contravention of orders made by those courts must therefore be dealt with via the exercise of the contempt jurisdiction. Like the County Court, the Magistrates’ Court has no implied, common law power to make general suppression orders. However, s 26 of the Act grants the Court a specific statutory power to make an order prohibiting the publication of any specified material, or any material of a specified kind, that is relevant to a proceeding pending in the Court if it is necessary to do so in order to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means or to protect the safety of any person. The order only applies to the publication of material in the place where the order applies, which must be specified in the order. However, an order is not limited in its application to Victoria; it can be made to apply anywhere in Australia provided the Court is satisfied that its application outside Victoria is necessary for achieving its purpose. 498 Section 27 renders it an offence for a person to engage in conduct that constitutes a contravention of an order made by the Magistrates Court under s 26 if that person knows that the order is in force or is reckless as to whether an order under that section is in force. Hefty penalties for contravention apply. The Act does not specify who has standing to apply for a broad suppression order, so the issue would fall to be resolved by the application of common law principles. 499 Neither VCAT nor the Coroner’s Court are empowered to make broad suppression orders. 494

495

The use of the word ‘injunction’ is curious, given that in General Television Corporation Pty Ltd v DPP (2008) 19 VR 68 at 76 and News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248 at 263 a general suppression order was regarded as ‘akin to’ a quia timet injunction, but not the same as an injunction: see [5.230]. The orders made by the County Court pursuant to this power can be interlocutory or final, unconditional or subject to such terms and conditions as the Court thinks just: s 25(2).

496

Judicial College of Victoria, Open Courts Bench Book (2013) at [6.3].

497 498

Judicial College of Victoria, Open Courts Bench Book (2013) at [2.3]. A broad suppression order made by the Magistrates’ Court does not prevent a person from disclosing information in the course of performing functions or duties or exercising powers in a public official capacity in compliance with any procedure adopted by the Court for informing a person of the existence and content of an order: Open Courts Act 2013 (Vic), s 26(5). Judicial College of Victoria, Open Courts Bench Book (2013) at [5.1].

499

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Closed Court Orders [5.550] Proceedings in the Magistrates’ Court are expressly required to be conducted in open court, including committal proceedings, criminal and civil proceedings. 500 Although there is no equivalent provision in the Supreme Court Act 1986 (Vic) or the County Court Act 1958 (Vic), the same position prevails by virtue of the Scott v Scott principle. Part 5 of the OCA empowers the courts and tribunals to which it applies to conduct the whole or any part of a proceeding in camera or to order that only specified persons or classes of persons may be present during the whole or any part of a proceeding. 501 However, in order to strengthen and promote the principle of open justice, there is a presumption in favour of hearing a proceeding in open court to which a court or tribunal must have regard in determining whether to make such an order. 502 As is the case with broad suppression orders, no provision specifies who can apply for a closed court order; presumably this will be resolved in accordance with the common law principles on standing. The grounds on which courts can make closed court orders are set out in s 30 and, with the exception of the Coroners Court, are identical to the grounds on which these courts may make proceeding suppression orders. 503 The Coroners Court may make a closed court order if the coroner constituting the Court reasonably believes that an order is necessary in the public interest, having regard to the matters specified in Pt 2 of the Coroners Act 2008. 504 The general requirements contained in Pt 2 of the OCA pertaining to notification, duration, scope and review do not apply to closed court orders. If a closed court order has been made, the court or tribunal is required to post a notice of the order on the door of the court or tribunal or in another conspicuous place where notices are usually posted. 505 It is an offence for a person to engage in conduct that constitutes a contravention of a closed court order if that person knows the order is in force or is reckless as to whether it is in force. 506

Western Australia [5.560] In Western Australia, all proceedings in the civil jurisdiction of the Magistrates’ Court are to be conducted in open court unless the Magistrates Court (Civil Proceedings) Act 2004 500 501

502 503

Magistrates’ Court Act 1989 (Vic), s 125. Open Courts Act 2013 (Vic), s 30. It has already been explained that the courts’ inherent and implied common law powers to make such orders are expressly preserved by s 29, although they are now subject to the presumption of openness in s 28: see [5.500]. Open Courts Act 2013 (Vic), s 28. Section 28 is an equivalent provision to s 4, which applies to suppression orders. The only difference is in relation to the statutory example given in relation to the first ground. In that case, “other reasonably available means” may include giving directions to the jury, making a proceeding suppression order or making less drastic in camera orders that exclude only certain persons or a more limited class of persons from the court or tribunal.

504

Part 2 of the Coroners Act 2008 (Vic) pertains to the objectives of the Act.

505 506

Open Courts Act 2013 (Vic), s 31. The penalties are the same as for breach of a proceeding suppression order, namely, level 6 imprisonment (5 years maximum) or 600 penalty units or both for an individual and 3000 penalty units in the case of a body corporate.

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(WA), the rules of court or another written law provides otherwise. 507 However, the Magistrates’ Court has power to order any or all persons to be excluded from the courtroom or to make an order prohibiting or restricting the publication outside the courtroom of the whole or part of the proceedings if the court is satisfied that it is in the interests of justice to do so. 508 Similar powers are vested in courts of summary jurisdiction, the District Court and the Supreme Court in respect of criminal proceedings, together with an additional power to make an order that prohibits or restricts the publication outside the courtroom of any matter that is likely to lead members of the public to identify a victim of an offence. 509 Such orders can be made at any time after an accused is charged with an offence and before or after the accused first appears in court on the charge. In respect of an order relating to the identification of victims, it is a defence to prove that, prior to the publication, the victim authorised the publication in writing, provided the victim had reached the age of 18 and was not mentally impaired to an extent that would render him or her incapable of making a reasonable judgment.

Specific provisions [5.570] Operating alongside these general provisions are a plethora of specific provisions which either stipulate that a court must sit in camera or prohibit the publication of certain information or which empower a court to do so. They concern coronial inquests, 510 adoption proceedings, 511 family law proceedings, 512 family violence proceedings, 513 proceedings 507 508

Magistrates Court (Civil Proceedings) Act 2004 (WA), s 45(1). Magistrates Court (Civil Proceedings) Act 2004 (WA), s 45(3).

509 510

Criminal Procedure Act 2004 (WA), s 171.

511

Coroners Act 1997 (ACT), s 40; Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 110, 111, 112; Coroners Act 2009 (NSW), ss 47, 73 – 77; Coroners Act (NT), ss 42, 43; Evidence Act (NT) ss 4, 57; Coroners Act 2003 (Qld), ss 31, 38, 41, 43; Coroners Act 2003 (SA), s 19; Evidence Act 1929 (SA), ss 5, Pt 8; Coroners Act 1995 (Tas), ss 56, 57; Open Courts Act 2013 (Vic), s 18(2), 30(3); Coroners Act 1996 (WA), ss 45, 49. Adoption proceedings are always held in camera and the restrictions on publication are extensive. See: Adoption Act 1993 (ACT), ss 60, 96, 97, 112, 113, 114; Adoption Act 2000 (NSW), ss 119, 143, 176, 178 – 180A, 186, 194, 205; Adoption of Children Act (NT), ss 59, 60, 70, 71, 72, 79; Adoption Act 2009 (Qld), ss 223, 304, 307G, 307O, 307P, 307Q, 315; Adoption Act 1988 (SA), ss 24, 31, 32; Adoption Act 1988 (Tas), ss 71, 93, 99, 100, 101, 108, 109; Adoption Act 1984 (Vic), ss 76, 83, 107, 120, 121 (see Herald & Weekly Times Ltd v PQR [2000] VSC 335); Adoption Act 1994 (WA), ss 84, 123, 124, 133.

512

Family Law Act 1975 (Cth), ss 97, 121, Pt XIA. The Family Court has power to issue injunctions to restrain a breach of s 121 but the Court regards an injunction as undesirable and unnecessary if it merely restates the effect of s 121: Gibb v Gibb [1978] FLC 90-405 and Re South Australian Telecasters Ltd (1998) 23 Fam LR 692; Sitwell v Sitwell [2014] FamCAFC 5. For a discussion of whether there should be publicity restrictions in the Family Court see I McCall, Publicity in Family Court Cases: Proposals for Amendments to the Family Law Act s 121 (1997) Report to the Attorney-General; I Kennedy, “Publicity in Family Law Cases” (1997) 12(1) Australian Family Lawyer 7. See also: J Bannister, “The Public/Private Divide: Personal Information in the Public Domain” [2002] Privacy Law and Policy Reporter 3.

513

Domestic Violence and Protection Orders Act 2008 (ACT). ss 111, 112; Crimes (Personal and Domestic Violence) Act 2007 (NSW), ss 45, 58; Domestic and Family Violence Act 2007 (NT), ss 26, 106, 123, 124; Domestic and Family Violence Protection Act 2012 (Qld), ss 158-160; Intervention Orders (Prevention of Abuse) Act 2009 (SA), s 33; Family Violence Act 2004 (Tas), ss 31, 32; Family Violence Protection Act 2008 (Vic), ss 68, 166-169; Restraining Orders Act 1997 (WA), s 70.

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involving children, 514 proceedings for sexual offences, 515 persons with assumed identities or who are in witness protection programs 516 and proceedings that concern terrorist activities or matters of national or international security. 517 Most of these provisions operate in tandem 514

515

516

517

Statutory provisions concerning children might deal with children in all or any of the following contexts: children accused of crimes, children in need of care and protection, offender prohibition orders, the regulation of child care centres and child employment. In some jurisdictions these contexts are all addressed in the one statute; in other jurisdictions they are dealt with in separate Acts. Only those provisions that impact on open justice are listed in this note. The provisions vary considerably between jurisdictions. For example, in some jurisdictions a children’s court is ordinarily open; in others it is ordinarily closed. However, legislation invariably prohibits or restricts the media from publishing anything that would identify children who are involved in criminal proceedings or who have been placed in the care of the State. See: Crimes Act 1914 (Cth), s 20C(1); Children and Young People Act 2008 (ACT), ss 77, 710; Court Procedures Act 2004 (ACT), s 72; Criminal Code 2002 (ACT), s 712A; Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 92, 104, 104A, 104B, 104C, 105; Children (Criminal Proceedings) Act 1987 (NSW), ss 4, 10, 15A – 15G; Child Protection (Offenders Prohibition Orders) Act 2004 (NSW), ss 14, 16H, 18; Young Offenders Act 1997 (NSW), s 65; Care and Protection of Children Act 2007 (NT) s 97, 99, 301; Child Protection (Offender Reporting and Registration) Act (NT), ss 86, 88; Evidence Act (NT), s 21A; Youth Justice Act (NT), ss 49, 50; Child Protection Act 1999 (Qld), ss 99J, 99K, 99ZG, 189, 190, 191, 192, 193, 194, 194A, 194B; Child Protection (Offender Prohibition Order) Act 2008 (Qld), s 20; Children’s Court Act 1992 (Qld), s 20; Evidence Act 1977 (Qld) ss 21AU, 21AZC; Youth Justice Act 1992 (Qld), ss 234, 301; Children’s Protection Act 1993 (SA), ss 59, 59A; Young Offenders Act 1993 (SA), ss 13, 63C; Youth Court Act 1993 (SA), s 24; Children, Young Persons and Their Families Act 1997 (Tas), ss 40, 103; Magistrates Court (Children’s Division) Act 1998 (Tas), ss 11, 12; Youth Justice Act 1997 (Tas), ss 22, 30, 31, 45, 108; Children, Youth and Families Act 2005 (Vic), ss 131, 330, 523, 534; Children and Community Services Act 2004 (WA), s 237, 240; Children’s Court of Western Australia Act 1988 (WA), ss 31, 35, 36, 36A, 51A; Young Offenders Act 1994 (WA), s 40. For a discussion of when a child has been relevantly “identified” see Bailey v Hinch [1989] VR 78; Western Australia v West Australian Newspapers Ltd (2005) 30 WAR 434. Crimes Act 1914 (Cth), ss 15YP, 15YR; Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 37, 38, 39, 40, 40R; Criminal Procedure Act 1986 (NSW), ss 291, 291A, 291B, 291C; Crimes Act 1900 (NSW), s 578A (see Australian Press Council, Submission to the NSW Attorney-General on the Criminal Procedure Further Amendment (Evidence) Bill 2005 and on Recent Amendments to the Children (Criminal Proceedings) Act 1987 (NSW) (20 April 2005); S Dawson and J Cheeseman, “Important Changes to the Reporting of Prescribed Sexual Offence Proceedings in New South Wales” (2005) 24 Communications Law Bulletin 10); Evidence Act (NT), ss 21A, 21F; Sexual Offences (Evidence and Procedure) Act (NT), ss 6 – 13; Criminal Law (Sexual Offences) Act 1978 (Qld), Pt 3; Evidence Act 1929 (SA), ss 69(1A), 71A (see X v South Australia [2002] SASC 53; Channel Seven Adelaide Pty Ltd v Stockdale-Hall [2005] SASC 307); Summary Offences Act 1953 (SA), s 35; Evidence Act 2001 (Tas), ss 194K, 194L (R v The Age [2000] TASSC 62); County Court Act 1958 (Vic), ss 80, 80AA (Bailey v Hinch [1989] VR 78); Magistrates’ Court Act 1989 (Vic), s 126; Criminal Procedure Act 2009 (Vic), s 133 (DPP v Theophanous [2009] VSC 325); Supreme Court Act 1986 (Vic), ss 18, 19; Judicial Proceedings Reports Act 1958 (Vic), s 4 (see Hinch v Director of Public Prosecutions [1996] 1 VR 683. See Doe v Australian Broadcasting Corporation [2007] VCC 281 regarding the availability of civil remedies for breach of statutory duty, negligence, breach of confidence and breach of privacy where this provision has been breached); Evidence Act 1906 (WA), ss 36A, 36C. Witness Protection Act 1994 (Cth), s 28; Witness Protection Act 1996 (ACT), s 16; Law Enforcement and National Security (Assumed Identities) Act 2010 (NSW), s 34; Law Enforcement (Controlled Operations) Act 1997 (NSW), s 28; Witness Protection Act 1995 (NSW), s 26; Witness Protection (Northern Territory) Act (NT), s 38; Witness Protection Act 2000 (Qld), s 27A; Witness Protection Act 1996 (SA), s 25; Witness (Identity Protection) Act 2006 (Tas), s 11; Witness Protection Act 1991 (Vic), s 13; Witness Protection (Western Australia) Act 1996 (WA), ss 23, 32. Legislative provisions that require or authorise in camera hearings, non-publication orders and restrictions on access to documents on a court file for reasons of defence, anti-terrorism or national security include: Crimes Act 1914 (Cth), s 85B; Criminal Code Act 1995 (Cth), s 93.2 (see R v Lodhi (2006) 65 NSWLR 573); National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth), Pts 3, 3A (the constitutionality of this Act was upheld in R v Lodhi [2006] NSWSC 571); Terrorism (Police Powers) Act 2002 (NSW), ss 26P, 27Y, 27ZA; Terrorism (Emergency Powers) Act (NT), ss 21U, 27W; Terrorism (Preventative Detention) Act 2005 (Qld),

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with the general powers outlined in the preceding paragraphs. It is also common for tribunals and commissions to be invested with statutory power to make in camera or suppression orders. 518 The restrictions on attending and/or reporting proceedings involving children are imposed in recognition of the vulnerability of children. In general, the purpose of these restrictions is to protect children from the victimisation, humiliation and harassment that can result from the revelation of their identities and to promote their speedy rehabilitation in cases where they are accused of crimes. In each case it is necessary to have regard to the wording of the relevant legislation in order to determine the precise scope of the prohibitions and the capacity in which children are protected. In May 2006, Channel 7 and the Herald & Weekly Times were each convicted and fined $50,000 for a report which identified parties involved in a Children’s Court proceeding in which a teenager “divorced” his mother, contrary to s 26 of the Children and Young Persons Act 1989 (Vic). 519 No convictions were recorded against the journalists. Restrictions concerning sexual offences invariably proscribe the publication of information that would directly or indirectly identify the complainant. 520 In each case it is necessary to ascertain the type of information that is subject to the prohibition and the meaning and ambit of “publication”. In most jurisdictions the prohibition is not absolute; provision may be made for identifying information to be published with the complainant’s consent (in recognition of the fact that some complainants have a strong wish to be heard) and/or with the leave of the court. Sometimes, the prohibition on identification is extended to other witnesses in sexual offence cases. The identity of the accused is not usually protected, 521 except where this is necessary to conceal the identity of the complainant, such as in incest cases. These restrictions are primarily imposed to protect complainants from the stress, trauma, humiliation, blame and stigma that identification may cause and to encourage them to report sexual assaults and give evidence. 522 Many jurisdictions have legislation which restricts who may be present in court while the complainant gives evidence.

518

519

520 521 522

s 76; Terrorism (Preventative Detention) Act 2005 (SA), s 47; Terrorism (Preventative Detention) Act 2005 (Tas), s 50; Terrorism (Community Protection) Act 2003 (Vic), s 12; Terrorism (Preventative Detention) Act 2006 (WA), s 53. For a discussion of the effect of the Commonwealth legislation on the media see: L McNamara, “Counter-Terrorism Laws and the Media: National Security and the Control of Information” (2009) 5(3) Security Challenges 95, http://www.securitychallenges.org.au/ArticlePDFs/vol5no3Mcnamara.pdf. See, for example: Administrative Appeals Tribunal Act 1975 (Cth), ss 35, 35AA, 39A; Fair Work Act 2009 (Cth), ss 577, 593, 594, 601; Migration Act 1958 (Cth), ss 365, 378; Competition and Consumer Act 2010 (Cth), s 106; Independent Commission Against Corruption Act 1988 (NSW), ss 31, 31A, 112, 113; Inquiries Act 2014 (Vic), ss 24, 26, 71, 73. Howe v Harvey [2007] VSC 130. The Children and Young Persons Act 1989 (Vic) has since been repealed and replaced with the Children, Youth and Families Act 2005 (Vic). Section 26 of the former Act is now s 534 of the latter Act. The legislation in some jurisdictions specifies that the prohibition continues to apply after the proceeding has concluded. The legislation in other jurisdictions is silent on the duration issue. In some jurisdictions it is an offence to identify the accused until after a certain point in the proceedings, usually their committal for trial. The position is exhaustively reviewed in Tasmania Law Reform Institute, Protecting the Anonymity of Victims of Sexual Crimes, Final Report No 19 (November 2013).

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Using electronic devices to collect and disseminate information about court proceedings [5.580] This section considers the extent to which the principle of open justice informs the law and judicial attitudes to the gathering of information in the courtroom by means of electronic devices and to the collection and dissemination of curial information through the electronic media.

Recording court proceedings [5.590] Whether journalists should be permitted to record proceedings is a matter that could be resolved via legislation. 523 However, most parliaments have left it to the courts to deal with the matter pursuant to their inherent or implied jurisdiction to regulate their own proceedings. In the past, most courts only permitted sound recordings to be made by persons charged with preparing official transcripts of proceedings for the court. In that era, the only option for a journalist who wished to obtain information about a proceeding was to sit in court and take notes or purchase a copy of the official transcript. Whether the inherent or implied powers of a court can support a general prohibition on the unofficial use of recording devices is uncertain. 524 The scant authority on this issue suggests that although the matter is one for the discretion of the court – there is no right to tape – courts must exercise this discretion judicially. 525 A judicial exercise of the discretion obliges the judge to consider both the assistance which may be derived from a recording and any factors which would render a recording inappropriate. 526 In so far as judges are required to consider each taping request on its merits, it indicates that a general practice of exclusion may not be sustainable. If, on the other hand, the inherent power is wide enough to support the practice, 527 the unauthorised use of a tape recorder in the courtroom would amount to a contempt of court. 528 The extent of the inherent or implied powers of a court to prohibit taping has essentially become a moot point. One reason for this is the rapid availability of judgments and sentences after their delivery, either in hard copy or as an audio broadcast on the court’s web page. This has rendered recording in these contexts unnecessary in order to ensure accuracy in reporting 523 524 525 526

527

528

See, eg, Contempt of Court Act 1981 (UK), s 9. New South Wales Law Reform Commission, Sound Recording of Proceedings of Courts and Commissions: The Media, Authors and Parties Report 39 (1984), at [2.29]-[2.36]. Nguyen v The Magistrates’ Court of Victoria [1994] 1 VR 88; Stefanovski v Murphy [1996] 2 VR 442. In Nguyen v The Magistrates’ Court of Victoria [1994] 1 VR 88, which concerned an application by one of the parties to tape record proceedings, the Supreme Court listed a number of factors which might render taping inappropriate, including: whether a tape recorder would be distracting or obtrusive; whether it has the capacity to adversely affect witnesses; and whether it would inhibit the conduct of the other party in an adversary proceeding by making it virtually impossible for counsel to obtain instructions from a party who is seated behind him or her in court or to discuss tactics with an instructing solicitor without being picked up on the tape recorder: at 95. In N Lowe and B Sufrin, The Law of Contempt (1996) it is suggested that it “would seem to be within a court’s inherent power in regulating its own proceedings to prohibit the unofficial use of tape recorders in court”: at 27. Access to Justice Advisory Committee, Access to Justice: An Action Plan (1994), para [20.6].

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the outcome of a case. Moreover, many courts now permit journalists to use tape recorders in the interests of openness – although jurisdictions vary as to whether they must seek leave of the court before doing so – and this has made it unnecessary for the media to test the legal limits of the courts’ power to prohibit it. 529 Permission to tape, whether granted outright or with leave of the court, is typically subject to four conditions: that the taping is carried out unobtrusively without interruption to the proceedings; that journalists record proceedings only for their own note-taking purposes to assist them in preparing accurate and comprehensive reports; that no tape recording will be broadcast; and that the presiding judge retains the right to prohibit recording in a particular case where this is deemed necessary or desirable. These conditions are frequently contained in court rules or official guidelines issued by the court. 530

Photographing, filming and broadcasting court proceedings The practice [5.600] Australian courts have a history of excluding still and video cameras from the courtroom. The justification traditionally proffered in support of this practice has been that the presence of cameras constitutes an interference with proceedings, consequently their exclusion is necessary to secure the proper administration of justice. The interference is said to consist of the distracting effect that the presence of equipment, cables, wires, microphones, artificial lighting, flashes and camera operators would have on the participants in the proceedings. 531 It has always been open to a court to depart from this general practice of exclusion and to permit judicial proceedings to be televised to the public. The first known instance was in 1981 when Barrett SM invited television cameras to televise live his findings in the first coronial inquiry into the death of Azaria Chamberlain. Since then, courts have allowed cameras into the

529 530

531

A journalist who is required to seek leave usually does so by submitting an application to the associate of the presiding judge. See, eg, Supreme Court of New South Wales, Media Recording of Court Proceedings Policy; Court Security Act 2005 (NSW), s 9; Court Security Regulation 2011 (NSW), reg 6; Supreme Court of the Northern Territory, Practice Direction No 2 of 2010, Access to the Court Building, Judgments, Exhibits and Files by the Public or the Media and Other Matters; Supreme Court of Queensland, Practice Direction No 8 of 2014, Electronic Devices In Courtrooms; Supreme Court of South Australia, Supreme Court Civil Rules 2006, r 9A; Supreme Court of South Australia, Supreme Court (Criminal) Rules 2013 r 37; Magistrates Court of Tasmania, Guidelines for audio-recording of court proceedings by media representatives http:// www.magistratescourt.tas.gov.au/going_to_court/Journalists/audio_recording_guidelines; Supreme Court of Victoria, Media Policies and Practices (2014); Supreme Court of Western Australia, Consolidated Practice Direction 3.1, Use of Electronic Devices in Court. E Thompson, “Does the Open Justice Principle Require Cameras to be Permitted in the Courtroom and the Broadcasting of Legal Proceedings?” (2011) 3(2) Journal of Media Law 211 at 224-226. Courts have been far more tolerant of sketches being made of persons involved in court proceedings, since this does not create a disturbance.

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courtroom on numerous occasions. 532 For example, courts have permitted ceremonial sittings, such as the swearing in of new judges, to be televised, and most courts permit file footage of judges to be broadcast. Footage of judicial and quasi-judicial proceedings (such as royal commissions and commissions of inquiry) frequently accompany daily news broadcasts, documentaries and current affairs programs dealing with aspects of the judicial system. On several occasions the Federal Court has permitted cameras to record judges delivering summaries of judgments in civil cases. 533 In August 2000, the judgment of O’Loughlin J in Cubillo v Commonwealth (the Stolen Generation case) was the first case to be broadcast live on three forms of media: radio, television and the internet. Other courts have followed suit, a more recent example being the live television and radio broadcast of the sentencing remarks of Coghlan J in R v Freeman. 534 In June 2011 the ABC broadcast On Trial, which was the first time that television cameras had been allowed to film serious criminal trials (a serious assault, a robbery and a murder trial) in the New South Wales District Court and the Western Australia Supreme Court. In sum, the practice of allowing cameras in the courtroom, while still ad hoc, has certainly increased by accretion since its first occurrence in 1981. In 2014 the Federal Court permitted the televising of the directions hearing in the case brought by the Essendon Football Club and its coach James Hird to have the Australian Sports Anti-doping Authority’s investigation quashed.

The legal perspective [5.610] From a legal perspective, any practice of excluding cameras must be supported by the inherent or implied jurisdiction of courts to regulate their own proceedings. 535 Australian courts maintain that they have a wide power to regulate their proceedings and the reporting thereof. 536 However, if the inherent or implied jurisdiction cannot exceed what is necessary for the administration of justice, then it will support the exclusion of cameras only where exclusion is necessary for the administration of justice. 537 Advances in technology have rendered unconvincing the aforementioned “physical disturbance” rationale for the longstanding practice of excluding cameras from courtrooms. The fact that cameras are now smaller and less noisy, no longer require artificial lighting, and can film proceedings from fixed positions identified by 532

533

534 535 536 537

For an extensive list of these instances see: D Stepniak, Electronic Media Coverage of Courts (1998), Ch 7; J Johnston, “Are the Courts Becoming More Media Friendly?” (1999) 21(1) Australian Journalism Review 109 at 111-114; Justice R French, Radio and Television Broadcasting in the Magistrates’ Courts – Is There a Future? (Speech delivered at the Association of Australian Magistrates’ Conference, University of Notre Dame, Fremantle, 10 January 2006), http://www.fedcourt.gov.au/aboutct/judges_papers/speeches_frenchj.html; D Stepniak, Audio-Visual Coverage of Courts (2008), pp 233-281. A most notable instance was the decision of North J in the April 1998 docks dispute between the Maritime Union of Australia and Patrick Stevedoring. The decision of the Full Federal Court on appeal was broadcast live on television. This was the first time in Australian history that a superior court had permitted such a broadcast. The sentencing remarks are reported in R v Freeman [2011] VSC 139. This proposition assumes that the matter has not been addressed by legislation. R v Williams [2007] VSC 139 at [6]; Collard v State of Western Australia (No 2) [2013] WASC 55. For an argument that the modern application of the open justice principle may actually require cameras to be permitted in courtrooms see E Thompson, “Does the Open Justice Principle Require Cameras to be Permitted in the Courtroom and the Broadcasting of Legal Proceedings?” (2011) 3(2) Journal of Media Law 211.

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the court means that physical disruption is no longer inevitable. 538 Indeed one judge has commented that “if the eye of television can see through a cricket stump, no doubt it can see in a court without disruption to the court”. 539 Interference with the administration of justice based on the psychological effects of cameras on trial participants remains a concern. Those who support the televising of proceedings would maintain that any adverse effects can be eliminated or reduced by the imposition of controls. Despite the precarious legal underpinnings of the de facto prohibition on cameras, the extent of the courts’ power to prohibit cameras in the courtroom has not been the subject of legal challenge by the media. Media organisations have confined themselves to making polite applications to a judge to televise a particular court proceeding and have tended to accept negative responses without demur. If permission is granted it is inevitably subject to conditions, which typically include restrictions on the number and location of cameras in the courtroom and on the persons who can be filmed, 540 a stipulation that the proceedings are not to be disturbed, controls on the permitted usage of the footage, a qualification that the court retains the right to veto the use of part or all of the footage and a condition that the coverage be accurate, impartial and balanced. 541 While some courts have developed formal guidelines to govern electronic coverage of judicial proceedings, they vary in the extent to which they embody a coherent set of principles to which the court commits itself. 542 Even if courts are prepared to allow cameras to film judicial proceedings there are a number of statutory provisions which operate to regulate or restrict the scope of what could be photographed or broadcast. They include: provisions which prohibit the publication of a photograph or picture of a juror; 543 provisions which forbid the publication of identifying

538 539 540

Access to Justice Advisory Committee, Access to Justice: An Action Plan (1994), para [20.26]. Roberts v Nine Network Australia Pty Ltd (Unreported, Vic Supreme Court, Cummins J, 18 December 1995). A transcript of this judgment is reproduced in D Stepniak (1998), Appendix 39. In some cases, legislation or a non-publication order will prohibit certain participants from being identified. Where this is not the case, courts will usually require the consent of participants to be obtained. This can be an arduous process. In the On Trial documentary, the consent of numerous parties had to be secured including (in respect of the Western Australian case) the Chief Justice of the Supreme Court, the accused, the accused’s family and the victim and (in respect of the New South Wales case) the Attorney-General, the State and Federal Directors of Public Prosecutions, the police, the Department of Corrective Services, the Legal Aid Commission, the Public Defender’s Office and the jurors. Access agreements had to be negotiated and signed with all these agencies and persons, a process which took in excess of two years: Question Time I Collie, Gazette of Law and Journalism (29 May 2011); ABC Radio National, “Cameras in Court Rooms”, Law Report, 31 May 2011 (M Cordell), http://www.abc.net.au/rn/lawreport/stories/2011/3230832.htm#transcript. This has been unfavourably compared with the ease with which print journalists can cover judicial proceedings: ABC Radio National, “Cameras in Court Rooms”, Law Report, 31 May 2011 (M Cordell), http://www.abc.net.au/rn/ lawreport/stories/2011/3230832.htm#transcript.

541

D Stepniak (1998). Doubts have been expressed as to whether the latter condition is capable of being enforced, given its subjective nature: R v Williams [2007] VSC 139 at [27].

542

See, eg, Supreme Court of New South Wales, Media Recording of Court Proceedings Policy, 16 December 2009; Supreme Court of Victoria, Media Policies and Practices (2014); Supreme Court of Western Australia, Consolidated Practice Directions 3.1, Use of Electronic Devices in Court. See [5.840]. In some jurisdictions, jurors can be identified with their consent.

543

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particulars concerning participants in certain types of proceedings; 544 and provisions which empower courts to hear proceedings in camera or to prohibit or restrict the publication of reports of proceedings. Broadcasts which distort proceedings by limited coverage or misleading or sensationalist excerpts could be in breach of broadcasting industry codes of practice, which require fairness and accuracy in news and current affairs programs. 545 The common law of contempt of court would also operate to restrict what could be televised. 546 For example, if the presence of a camera did disturb the conduct of a proceeding or had a tendency to interfere with the administration of justice, this could amount to a contempt in the face of the court and the court would be justified in ordering its removal. 547 Moreover, the law of sub judice contempt would prohibit the broadcast of a photograph or footage of an accused person if identity might be in issue in the proceedings. 548

Why judges remain wary of television coverage [5.620] Although the physical disturbance rationale is no longer a live issue, there are many other compelling reasons why courts have been reluctant to allow cameras in the courtroom. They have been discussed in the extensive literature on the subject. 549 Perhaps the most significant is the potentially distorting effect that the presence of cameras and television coverage might have on the participants in the proceedings, including the parties, victims, witnesses, counsel, judge and jury and the impact on the accused’s right to a fair trial. 550 Courts are alive to the risk of prejudice that media attention can create. A notable instance occurred in May 1995, when Teague J of the Victorian Supreme Court acceded to requests 544 545 546

Examples include adoption proceedings, family law proceedings, sexual offences and proceedings involving children: see [5.570]. D Stepniak, “Why Shouldn’t Australian Court Proceedings Be Televised?” (1994) 17(2) University of New South Wales Law Review 345 at 359-360. Broadcasting industry codes of practice are discussed in [14.950]. Stepniak (1994) 17(2) University of New South Wales Law Review 345 at 348-349.

547

According to Mallam, Dawson and Moriarty, Media and Internet Law and Practice (Thomson Reuters, subscription service), para [4-970], the first known conviction for contempt in relation to cameras occurred in The Registrar v Unnamed Respondent (1994) 234 FLR 248. In that case, an ASIO officer took photographs of a number of people convicted of an attack on the Iranian Embassy inside the court building but outside the courtroom contrary to a court warning against the use of cameras during the trial. The officer was held to have committed a contempt in the face of the court on the basis that his actions had a real tendency to put pressure on litigants, witnesses and other persons who must be left to come and go in connection with court business free from threat or harassment. See also Prothonotary of the Supreme Court of New South Wales v Rakete [2010] NSWSC 5, where the accused used a digital camera to film a witness giving evidence without the permission of the court and was found guilty of contempt on the basis that it had a tendency to interfere with the administration of justice.

548 549

For a discussion of these legal restrictions see: Stepniak (2008), pp 211-221. Arguments against cameras in the courtroom have been canvassed in a number of academic articles. See, for example, D Stepniak, Access to Justice Advisory Committee, Access to Justice: An Action Plan (1994), [20.22]; C Lane, “On Camera Proceedings: A Critical Evaluation of the Inter-Relationship between the Principle of Open Justice and the Televisation of Court Proceedings in Australia” (1999) 25 Monash University Law Review 54. See, eg, Prothonotary of the Supreme Court of New South Wales v Rakete [2010] NSWSC 5 at [43]-[44]. For a survey regarding the impact of television on counsel in New Zealand see: P Murray, “Electronic Media Coverage of Courts and the Role of Counsel: A Survey of Counsel’s Views and the Possible Impacts” (2006) 11 Media and Arts Law Review 26.

550

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from the media that cameras be allowed to film the sentencing of child murderer Nathan Avent. Certain restrictions were placed on how the filming was to be done. 551 The defence opposed the filming and raised it as two of the three grounds for a subsequent appeal against what was argued to be an excessive sentence. In particular, the defence contended that by allowing the sentence to be televised the judge fell into error by imposing a sentence that was excessively harsh, and that the decision to allow the televising of the sentencing created a reasonable apprehension that the judge was biased, which thereby vitiated the whole process. The sentence was subsequently reduced by the Court of Appeal, but all judges stipulated that the appeal was about whether the sentencing discretion had miscarried, not whether cameras should have been permitted in the courtroom. 552 However, two judges, Callaway and McDonald JJA, described as “not without force” the contention that a fair-minded lay observer with knowledge of the material objective facts might have entertained a reasonable apprehension that Teague J may have been unconsciously influenced in the process of sentencing by the attention directed to the case by the media. The case was regarded as a set-back for televising the courts. 553 Judicial opinion is also polarised regarding whether the televising of judicial proceedings is a form of extended reporting, and therefore a legitimate aspect of open justice, or whether there is already sufficient transparency by virtue of the fact that the courts are open to the public and able to be the subject of television, radio and newspaper reports. 554 Some judges have acknowledged that the majority of the public receive their news and information through the visual electronic media and derive their assessment of the performance of public institutions such as the courts through that medium. 555 Accordingly, they reason that if the courts are to be truly open, they must be open to the electronic media. Other judges are more sceptical about whether visual coverage will advance the interests of justice. For example, in R v Williams, King J rejected an application made by several media outlets to film her as she passed sentence on gangland figure Carl Williams. 556 In so doing, Her Honour rejected the argument that televising would enhance public understanding of the work of the courts, since it was likely that the media would televise only a very short extract of her remarks on their news services. Her Honour was also concerned that filming would focus public attention on the judge as a person rather than upon the criminality of the accused and the appropriateness 551 552

553 554 555

556

These conditions are reproduced in D Stepniak (1998), para [7.25]. R v Avent (unreported, Vic Court of Appeal of Supreme Court, Phillips CJ, Callaway JA and McDonald, JA, 22 December 1995). The sentence was reduced on the basis that it was manifestly excessive in view of Avent’s confession, his co-operation with the police and his lack of premeditated murderous intent. See R Ackland, “Bias Argument Not Without Force – R v Avent” (1996) 37 Gazette of Law and Journalism 11. R v Williams [2007] VSC 139. Members of the public can also access the actual judgment and sentencing remarks from the court website or Austlii. Roberts v Nine Network Australia Pty Ltd (Unreported, Vic Supreme Court, Cummins J, 18 December 1995). A transcript of this judgment is reproduced in D Stepniak (1998), Appendix 39. Justice Kirby also takes this view: D Harrison, “Judge Wants High Court Proceedings Televised”, The Age (online) 14 November 2008, http://www.theage.com.au/national/judge-wants-high-court-proceedings-televised-20081113-66a7.html. R v Williams [2007] VSC 139.

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of the sentence, and did not want the cult of personalities to attach to the judicial office. 557 The same view was taken in The Queen v Cowan. 558 Divergent views have been expressed regarding the fairness of allowing individual cases to be singled out for this special form of reporting. The fact that this may give a particular case a higher profile than it might otherwise have attracted was described by one judge as irrelevant, as the same dangers attend print publicity. 559 Other judges have expressed concern about the reporting of isolated cases. 560

Recent developments [5.630] Recent years have witnessed a growing trend towards allowing cameras in the courtroom. The United Kingdom has considerably liberalised its position. The Supreme Court has been televised live since its inception in 2009 and cameras began filming civil and criminal cases in the Court of Appeal in late 2013. 561 In 2014, the New South Wales Parliament enacted legislation which allows a person to apply to the District Court or Supreme Court for permission to record and broadcast 562 the judgment remarks of the Court. 563 “Judgment remarks” are defined to mean, in relation to a criminal trial, the delivery of the verdict, and any remarks made by the Court when sentencing the accused person that are delivered or made in open court. In relation to any other proceedings, they mean any remarks made by the Court in open court when announcing the judgment determining the proceedings. Applications to record and broadcast can be made in 557

558 559 560 561

562

563

A similar scepticism about whether televising the courts would effectively enhance public awareness of their work was expressed by the Hon Paul de Jersey CJ on the basis that the media are only likely to broadcast “the dramatic bits, leading to a distorted view of the overall proceeding”: (Speech delivered at The Courts and the Media in the Digital Era conference, Bond University, 12 February 2011), http://www.archive.sclqld.org.au/ judgepub/2011/dj120211.pdf. The Queen v Cowan [2014] QSC 41. See also Collard v State of Western Australia (No 2) [2013] WASC 55 where a request to film was rejected for different reasons. Roberts v Nine Network Australia Pty Ltd (Unreported, Vic Supreme Court, Cummins J, 18 December 1995). R v Williams [2007] VSC 139 at [23]-[24]. The long standing ban on cameras imposed by the Criminal Justice Act 1925 (UK), s 41 was removed by the Constitutional Reform Act 2005 (UK), s 47 (in relation to the Supreme Court) and by the Crime and Courts Act 2013 (UK), s 32 (more generally). Under current arrangements, Sky News has borne the cost of installing and operating the technical equipment in the Supreme Court and the footage is shown live on the Sky News website. Viewers cannot download recorded footage. The arrangements pertaining to the Court of Appeal were made with Sky News, ITV, the BBC and the Press Association. The arrangements differ from those that apply to the Supreme Court. Cameras positioned in the Court of Appeal only film the judge and counsel; witnesses, jurors, victims, the accused and members of the public are not filmed or recorded. A court video journalist ensures that prohibited material, such as the names of children and sexual offence victims, are not broadcast. It is anticipated that proceedings in the Crown Court will be the next to be televised. For a discussion of the lead up to these changes see: United Kingdom, Ministry of Justice, Proposals to Allow the Broadcasting, Filming, and Recording of Selected Legal Proceedings (2012). To “record” is defined to mean to capture audio or visual content, or both, for the purposes of a broadcast. “Broadcast” is defined to mean a live or delayed broadcast by means of radio, television or the internet (including webcasts): District Court Act 1973 (NSW), s 178; Supreme Court Act 1970 (NSW), s 127. Courts Legislation Amendment (Broadcasting Judgments) Act 2014 (NSW). The reference to the Supreme Court includes the Court of Criminal Appeal.

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all proceedings in the District and Supreme Court other than: proceedings held in closed court; proceedings under the Bail Act 2013; proceedings on an appeal under the Children (Criminal Proceedings) Act 1987 or Children and Young Persons (Care and Protection) Act 1998; proceedings under the Crimes (Forensic Procedures) Act 2000 or the Crimes (High Risk Offenders) Act 2006; any other proceedings that are excluded by regulation; and, in the Supreme Court, proceedings in the exercise of its parens patriae jurisdiction. 564 The Court is required to accede to applications and to permit the judgment remarks to be broadcast by one or more news media organisations (whether or not the organisations are also the applicants) 565 unless an “exclusionary ground” is present. 566 If the scheme is successful, the Attorney-General has foreshadowed that the broadcast of evidence may also be permitted. 567 It remains to be seen whether other Australian jurisdictions will enact legislation in similar terms.

Live text-based communications from the courtroom [5.640] A more recent issue to arise is whether courts should permit reporters to use internet enabled laptops, smartphones, tablets and other mobile wireless devices to send emails and provide regular updates on proceedings via tweets and texts posted on social media sites from inside the courtroom. 568 The main advantage is that it allows members of the public to follow a case in real time, thereby creating a sense of immediacy and enhancing open justice. However, there are significant risks. 569 They include: interference with the court’s 564 565

District Court Act 1973 (NSW), s 177; Supreme Court Act 1970 (NSW), s 126. The regulations may provide for the shared use of recordings among broadcasters.

566

The “exclusionary grounds” are: that broadcasting the judgment remarks would be likely to reveal the identity of a person in circumstances where the disclosure, publication or broadcast of that person’s identity is prohibited by a suppression or non-publication order of the Court or by law; that the judgment remarks will contain material that is subject to a suppression or non-publication order by the Court or the disclosure, publication or broadcast of which is otherwise prohibited by law; that the judgment remarks are likely to be prejudicial to other criminal proceedings (including proceedings for the same or a related criminal offence) or a current criminal investigation; that the judgment remarks are likely to reveal the existence of a covert operation carried out by law enforcement officials; that broadcasting the judgment remarks would pose a significant risk to the safety and security of any person in the courtroom or who has participated, or has otherwise been involved, in the proceedings; or that the Chief Judge has directed that the judgment remarks not be recorded or broadcast because to do so would be detrimental to the orderly administration of the Court. In all cases except the latter, a ground of exclusion is only afforded if it is not reasonably practicable to implement measures when recording or broadcasting the judgment remarks to prevent the broadcast of anything that gives rise to the exclusionary ground. The legislation provides that it is not permissible to record images that identify jurors or an accused person or a victim in a criminal trial or a member of their immediate family in connection with the recording or broadcast of judgment remarks of the Court: District Court Act 1973 (NSW), s 179; Supreme Court Act 1970 (NSW), s 128.

567

New South Wales, Parliamentary Debates, Legislative Assembly, 25 March 2014, 27753 (Greg Smith, Attorney-General). See: M Krawitz, “Stop the Presses but Not the Tweets: Why Australian Judicial Officials Should Permit Journalists to Use Social Media in the Courtroom” (2013) 15 Flinders Law Journal 1; Judge JC Gibson, Judges, Cyberspace and Social Media http://www.aija.org.au/ 4 June 2014. S Hind, “How Should Australian Courts Approach the Use of Live Text-based Communications in Court?” (2011) 30(3) Communications Law Bulletin 7; L McNamara, “Social Media: What Role Should it Play in the Courts?” (2011) 33(4) Bulletin – Law Society of South Australia 22.

568

569

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speaker systems; a lack of context (a tweet only permits 140 characters, which may create a misleading impression of a case even if the information conveyed is factually correct); 570 witnesses who are waiting outside the courtroom to give evidence might learn of evidence being given by a witness inside the court; 571 details of inadmissible evidence may be posted when a jury is involved; 572 mobile phones may be used to surreptitiously record proceedings or photograph jurors; and suppression orders might be inadvertently breached. 573 There is also the danger that information that would constitute a sub judice contempt might be published before it can be “legalled” by a media organisation’s lawyers. The risks would be even greater if bloggers and citizen journalists were permitted to post information from the courtroom. The issue came to the courts’ attention when requests began to be made by journalists to presiding judges in individual cases to be permitted to tweet from the courtroom. 574 In Australia, this first occurred in Roadshow Films Pty Ltd v iiNet Ltd (No 3). In that case, Cowdroy J permitted journalists in the courtroom to report on the proceedings via “tweets” in view of the widespread domestic and international interest the case had attracted, on the proviso that they did not interrupt proceedings. 575 The United Kingdom led the way in formulating a considered approach to the issue when, in December 2010, the Lord Chief Justice of England and Wales issued an Interim Practice Guidance regarding the use of live text based forms of communication from court, following an inconsistent judicial response to journalists’ requests to tweet in the Julian Assange bail hearings. 576 A Consultation Paper was issued by the Judicial Office for England and Wales, seeking input in relation to the courts of England and Wales 577 (other than the United Kingdom Supreme Court, which issued its own 570

For example, evidence given by a witness may be subsequently contradicted by cross examination. A tweet that reports the evidence at the time it was given may do so accurately, but if isolated from the wider context may leave the reader with a misleading impression: M Bromby, “Response to the Consultation by the Judicial Office for England and Wales on the Use of Live Text-Based Forms of Communications from Court for the Purposes of Fair and Accurate Reporting” (2010) 3(1) European Journal of Law and Technology 1 at 3.

571

In this case, live communication from within the courtroom simply aggravates an existing issue rather than creating a novel one. A tweet can be sent even before counsel can get to their feet and object to certain evidence.

572 573

574 575 576

577

What is perhaps more likely to occur is that an application for an order to suppress the publication of certain information will not be made because the information has already been tweeted or posted, or an order might be made in ignorance of the fact that the information has already been tweeted or posted on social media. This occurred in the Kalapunda murders in South Australia, where accused’s identity appeared on Facebook before a suppression order was made. See B Fitzgerald, C Foong and M Tucker, “Web 2.0, Social Networking and the Courts” (2012 35 Australian Bar Review 281 at 290-3. Roadshow Films Pty Ltd v iiNet Ltd (No 3) [2010] FCA 24 at [4]. Interim Practice Guidance: The Use of Live Text-Based Forms of Communication (Including Twitter) from Court for the Purposes of Fair and Accurate Reporting, http://www.judiciary.gov.uk/Resources/JCO/ Documents/Guidance/lcj-guidance-live-text-based-communications-20122010.pdf. See J Rozenberg, “The Twitter Era of Court Reporting is Here, Despite the Risk of Prejudice”, Guardian, 9 February 2011, http://www.guardian.co.uk/law/2011/feb/09/twitter-court-reporting-stays. Judicial Office for England and Wales, A Consultation on the Use of Live, Text-Based Forms of Communications from Court for the Purposes of Fair and Accurate Reporting, http://www.judiciary.gov.uk/ Resources/JCO/Documents/Consultations/cp-live-text-based-forms-of-comms.pdf.

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rules in February 2011). 578 The Consultation Paper was followed by the issue of the final Practice Guidance in December 2011. 579 Basically, the Guidance permits journalists and legal commentators to use live text based communications from court without having to make an application to the judge. Formal or informal applications must be made by members of the public wishing to do the same. A number of Australian courts have now formulated their own policies regarding the use of live text based communications in the courtroom. 580 In most jurisdictions, members of the public are not permitted to use such devices, but an exception is made for lawyers and professional or accredited journalists. This special provision is typically subject to the proviso that journalists do not disturb proceedings. In some jurisdictions, courts do not permit this equipment to be used for the contemporaneous publication of material on the internet without the permission of the presiding judge. In others, courts have imposed a time delay on the reporting of evidence and submissions in order to ensure that applications for suppression orders are not thwarted. It is also usual for the presiding judge to retain an overriding discretion in the matter.

Courts as publishers [5.650] The internet has provided the courts with the means of disseminating information about their proceedings direct to the public, and Australian courts are increasingly taking the initiative and doing so. 581 The catalyst for this increased assumption of responsibility for promoting public awareness of the judiciary and judicial proceedings is unclear: it may reflect a consciousness that the primary responsibility for public education lies with the courts and that this responsibility should not be delegated to the media; it may spring from a belief that 578

579

580

581

The Supreme Court of the United Kingdom, Policy on the Use of Live Text-based Communications from Court, http://www.supremecourt.gov.uk/docs/live-text-based-comms.pdf. The policy states that, subject to certain exceptions, any member of a legal team or member of the public is permitted to use text-based communications from court, providing these are silent and there is no disruption to the proceedings in court. It is noted in the policy that the cases which come before the UKSC do not involve interaction with witnesses or jurors; and it is rare for evidence to be adduced which may then be heard in other courts. Lord Chief Justice of England and Wales, Practice Guidance: The Use of Live Text-Based Forms of Communication (Including Twitter) from Court for the Purposes of Fair and Accurate Reporting, 14 December 2011, at http://www.judiciary.gov.uk/publications-andreports/guidance/index/lcj-interim-pracr-guide-textbased-comms-20122010. See, eg: Court Security Act 2013 (Cth), ss 17, 18; Federal Court Rules 2011, r 6.11 (see also http://www.fedcourt.gov.au/law-and-practice/communication-devices); Court Security Act 2005 (NSW), s 9A; Court Security Regulation 2011 (NSW), reg 6B; Supreme Court of the Northern Territory, Practice Direction No 2 of 2010, Access to the Court Building, Judgments, Exhibits and Files by the Public or the Media and Other Matters; Supreme Court of Queensland, Practice Direction No 8 of 2014, Electronic Devices In Courtrooms; Supreme Court of South Australia, Supreme Court (Civil) Rules 2006 r 9B; District Court of South Australia, District Court (Civil) Rules 2006 r 9B; Supreme Court of South Australia, Supreme Court (Criminal) Rules 2013 r 38; District Court of South Australia, District Court (Criminal) Rules 2013 r 38; Supreme Court of Victoria, Media Policies and Practices (2014); Supreme Court of Western Australia, Consolidated Practice Direction 3.1 Use of Electronic Devices in Court. In August 1999 the Federal Court became the first Australian court to broadcast live streaming video and audio of a judgment summary over the internet. The case was Australian Olympic Committee v Big Fights Inc [1999] FCA 1042. At first, such occurrences were isolated and ad hoc. Today, they are becoming more routine.

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the nature of the media’s interest in a case does not necessarily equate with the interests of the administration of justice or the public interest and that courts should counteract inaccurate or simplistic reporting; or it may be an attempt to compensate for the media’s declining capacity to fund dedicated court reporters. 582 Whatever the reason, courts are increasingly webcasting their judgments and sentencing remarks, especially in cases that have attracted a high level of public interest. 583 Some courts publish transcripts of high profile cases. Since October 2013, the High Court has been publishing on its website audio visual recordings of Full Court hearings that take place in Canberra. The extent to which courts use audio visual technology is largely dependent on the nature of the court’s work (courts that do not conduct jury trials or whose work is primarily appellate are more likely to utilise this technology since there are less risks involved) and on the judicial attitudes and culture that prevail within each court. However, it is also affected by a court’s facilities and budgetary considerations. 584 The advent of social media has increased the ability of the courts to connect with interested members of the public. 585 Most Australian courts are yet to engage with Facebook, Twitter, YouTube and the like. Courts that have established a Twitter account or a Facebook presence, such as the Family Court and the Victorian and New South Wales Supreme Courts, have tended to use these vehicles as a means of alerting followers to certain happenings in the court, such as daily lists, the handing down of a judgment or imposition of a sentence and links thereto, the release of new practice directions or court rules, judicial speeches and public events hosted by the court such as open days. Nevertheless, social media by definition, is an interactive tool and there are both advantages and pitfalls in its use by courts. 586

Open justice and access to documents filed in legal proceedings [5.660] This section is concerned to gauge the extent of the impact of the principle of open justice on documents that are placed on a court file during the course of a proceeding. These documents include: the initiating process, pleadings, cross claims, subpoenas, interlocutory applications, affidavits and, once the case has been before the court, transcripts of the 582 583

See Hon Chief Justice M Warren, “Open Justice in the Technological Age” (2014) 40(1) Monash University Law Review 45. Many courts also webcast the welcome and farewell ceremonies for incoming and retiring judges. The opening and closing addresses in the Kilmore East Kinglake Bushfire Class Action were live streamed by the Supreme Court of Victoria. Recent commissions of inquiry into natural disasters have webcast their public hearings on their websites, including the proceedings of the Queensland Floods Commission of Inquiry.

584

For example, the Supreme Court of Western Australia is committed to webcasting selected proceedings, but failed to obtain the necessary funding for the project from the Attorney-General.

585

B Fitzgerald, C Foong and M Tucker, “Web 2.0, Social Networking and the Courts” (2012 35 Australian Bar Review 281 at 295-6. See: A Blackham and G Williams, “Australian Courts and Social Media” (2013) 38(3) Alternative Law Journal 12; A Blackham and G Williams, “Social Media and the Courts” (2014) 88(3) Law Institute Journal 30; M Krawitz, “Summoned by Social Media: Why Australian Courts Should Have Social Media Accounts” (2014) 23 Journal of Judicial Administration 182.

586

[5.660] 319

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proceedings and exhibits. 587 It used to be the case that a party who wanted to use or rely on a document on the court file in the proceedings would read that document aloud in court. This uneconomic practice has long been abandoned by courts in order to save court time, the public purse and the litigants’ pockets. 588 In the interests of increased efficiency in the trial process, pleadings are usually taken as read, and are only referred to in the course of argument when appropriate. 589 Implementation of this practice has the consequence that the phrase “read in court” is now “a fiction which harks back to the days when this was done aloud”. 590 In many courts, it is common practice for witnesses to give their evidence in chief by way of affidavit, rather than orally in open court. Such witnesses simply adopt their witness statement once they are in the witness box, and are cross-examined on it. Many higher courts also rely heavily on written submissions. Indeed, some courts require the parties to file written submissions with the court. 591 Oral argument before these courts is quite abbreviated, since it proceeds on the assumption that the court is familiar with the written submissions. 592 Judges have also abandoned the practice of reading their judgments aloud. 593 In many jurisdictions, there have been similar developments in relation to committal proceedings (also known as preliminary hearings). Committal proceedings are generally conducted using the hand-up brief procedure. 594 Rather than give oral testimony in open court, prosecution witnesses simply make signed and sworn written witness statements which, along with other documentation, are tendered to the court as the prosecution case. 595 The purpose of the hand-up brief procedure is to avoid the undue waste of time and expense that is involved in getting the prosecution witnesses to attend a committal proceeding and any subsequent trial. 596 Because it is assumed that the magistrate will have read the brief and be familiar with the case, there is no lengthy opening statement by the prosecution, only a short address. 597 Accordingly, unless the defendant is given leave to call and cross-examine the prosecution witnesses, no witnesses appear in person at the proceedings. The proceedings are usually confined to argument about the sufficiency of the prosecution case. 598 587 588

Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 769 at [5]-[6]. Hammond v Scheinberg (2001) 52 NSWLR 49 at 54; McCabe v British American Tobacco Australia Services Ltd [2002] VSC 150 at [18]-[19]; R (Guardian News & Media Ltd v City of Westminster Magistrates Court [2012] EWCA Civ 420 at [15].

589 590 591

Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 776 at [5]-[6]. McCabe v British American Tobacco Australia Services Ltd [2002] VSC 150 at [18]. See, for example: High Court Rules 2004, rr 41.05, 41.06 and 41.07; Federal Court of Australia, Content of Appeal Books and Preparation for Hearing Practice Note App 2 (2010); Supreme Court of Tasmania, Written Submissions to the Full Court and the Court of Criminal Appeal, Practice Direction No 6 of 2005; Supreme Court of Queensland, Court of Appeal, Practice Direction No 26 of 1999. See also SmithKline Beecham Biologicals SA v Connaught Laboratories Inc [1999] 4 All ER 498 at 511-512.

592 593 594 595 596

E Willheim, “Are Our Courts Truly Open?” (2002) 13 Public Law Review 191 at 195-197. In Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) [1982] Ch 204, judges took four days to read their judgment in court: at 209. See, for example: Criminal Procedure Act 2009 (Vic), Pt 4.4. RG Fox, Victorian Criminal Procedure: State and Federal Law (13th ed, 2010), p 237. Victoria, Parliamentary Debates, Legislative Council, 18 April 1972, 5008-5011 (AJ Hunt).

597 598

Herald & Weekly Times Ltd v Magistrates’ Court of Victoria [2000] 2 VR 346 at 349. RG Fox, Victorian Criminal Procedure: State and Federal Law (13th ed, 2010), p 238.

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This heavy reliance on documentary evidence and written submissions poses problems for journalists who wish to prepare a report on a proceeding, as a proper understanding of the case can no longer be gained by sitting in open court. 599 Indeed, in Rinehart v Welker, Young JA admitted that “what happens in modern commercial and equity courts and in the court of appeal is a watered down version of open justice as was in the minds of 19th century lawyers”. 600 Access to documents is therefore critical if journalists are to prepare and disseminate fair and accurate reports of cases which will inform the public and protect them and their employers from liability in defamation and contempt. Whether media organisations are able to secure this access depends on the status of a court file and on the prevailing position under rules of court. 601

The status of a court file at common law [5.670] In Dobson v Hastings the court stated that at common law, a court file is not “a publicly available register,” but a file maintained by the court for the proper conduct of proceedings. 602 Accordingly, persons who are not parties to a proceeding have no common law right to inspect documents on a court file. This proposition has been endorsed in numerous cases in the United Kingdom, Australia and New Zealand. 603 The one exception is court orders made in open court. It has been held that, unlike pleadings, affidavits and other documents filed in court, court orders are public documents which members of the public have a common law right to inspect, although there is no common law right to copy them. 604 Although the media have no common law right to inspect and copy documents on the court 599

Note, however, that the technology that might be used at a trial can include a facility which permits documents to which reference is being made to be displayed on a large screen that can be viewed by members of the public who are present in the courtroom: S Jackson, “New Challenges for Litigation in the Electronic Age” (2007) 12(1) Deakin Law Review 81 at 117-118. As “electronic courts” become more common, this practice may alleviate some of the problems of incomprehensibility that affect members of the public who are present in court, although care must be taken to ensure that documents containing confidential information are not displayed to the public.

600

Rinehart v Welker [2011] NSWCA 403 at [80]. Young JA nevertheless proceeded to hold that if what is read is made available on request for the press and interested members of the public to read, this is “sufficient for the court still to qualify as an open court”: at [80].

601

Rather than attempting to obtain access to documents from the court record, a journalist might attempt to obtain the same document or information from one of the parties. This is considered in [5.720]-[5.790]. Dobson v Hastings [1992] 2 All ER 94 at 100. R Lucas & Son (Nelson Mail) Ltd v O’Brien [1978] 2 NZLR 289; Smith v Harris [1996] 2 VR 335; R v Clerk of Petty Sessions, Court of Petty Sessions Hobart; Ex parte Davies Brothers Ltd (1998) 8 Tas R 283; GIO Personal Investment Services Ltd v Liverpool and London Steamship Protection and Indemnity Association Ltd [1999] 1 WLR 984; Herald & Weekly Times Ltd v Magistrates’ Court of Victoria [1999] 3 VR 231; (2000) 2 VR 346; Television New Zealand Ltd v The Queen [2000] NZCA 354; R v Mahanga [2001] 1 NZLR 641 at 643; John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 at 521; Dian AO v Davis Frankel & Mead [2005] 1 All ER 1074; McCully v Whangamata Marina Society Inc [2007] 1 NZLR 185; Re Universal Music (Australia) Pty Ltd v Sharman Licence Holdings Ltd; Ex parte Merlin BV [2008] FCA 783; Russo v Russo [2010] VSC 98; Rinehart v Welker [2011] NSWCA 403 at [137]. The position is otherwise in the United States and Canada, where a common law right of access to documents on the court record is recognised.

602 603

604

Titelius v Public Service Appeal Board (1999) 21 WAR 201 at 219-221, 223.

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record, courts have power to permit non-party access to documents pursuant to their inherent and implied powers. 605 These same powers permit them to allow the media access to exhibits. 606 The media frequently argue that a denial of access to documents on a court file is an affront to the principle of open justice. 607 However, the courts have maintained that the concept of open justice applies only to the judicial process itself, and that documents that have merely been filed in a court registry do not, by virtue of that fact, become part of the judicial process. 608 In fact, many documents on a court file never see the light of day in open court. The case might settle before trial, documents that form part of the pleadings may be amended or struck out, affidavits may be objected to or ruled inadmissible, or the parties may simply choose not to rely on them. Thus the court file, as it exists in a developing state after the initiating process is filed and before the case is heard, “cannot be regarded as the equivalent of what will be presented in open court if and when the proceedings come to trial”. 609 For this reason, access by the media to the contents of a court file “is not in absolute terms, a proposition flowing from the principle of open justice”. 610 The Western Australia Court of Appeal has noted that the ordinary rule – that the principle of open justice “goes no further than the conduct of court proceedings in public” – is satisfied “if people are free to attend court and report on the proceedings without restriction” 611 and “is silent on the issue of provision of court documents and exhibits to non-parties”. The Court was critical of the fact that the principle of open justice is frequently relied on as “a sufficient premise for direct application to facts outside the scope of the general rule”. 612 A recent decision of the England and Wales Court of Appeal heralds a significant retreat from this stance in favour of a position that regards open justice as requiring that court 605

Australian Securities and Investments Commission v Rich [2002] NSWSC 198; Hammond v Scheinberg (2001) 52 NSWLR 49; Herald & Weekly Times Ltd v Magistrates’ Court of Victoria [1999] 3 VR 231 (Mandie J); (2000) 2 VR 346 (Court of Appeal); John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512.

606

R (Cth) v Elomar (No 3) [2008] NSWSC 1443. Note, however, that exhibits remain the property of the party who tendered them and are usually returned to that party after the case has concluded and the appeal period has expired. Accordingly, it may not be possible to arrange for non-party inspection once the exhibits have left the court registry. For example, in Herald & Weekly Times Ltd v The Magistrates’ Court of Victoria [1999] 3 VR 231; [2000] 2 VR 346, several media organisations sought a ruling from the Supreme Court of Victoria that s 125 of the Magistrates’ Court Act 1989 (Vic) – which requires the court to conduct its proceedings in open court – imposed an obligation on the Magistrate to provide them with reasonable access to charge sheets and witness statements that had been tendered in open court as part of a hand-up brief once a request for access had been made. The media argued that if a fair and accurate report cannot be compiled for want of access to material relied upon by the court, the court is not truly open. However, the Supreme Court, and, on appeal, the Court of Appeal, held that s 125 did not oblige the Magistrate to provide the media with reasonable access to these documents upon request and that the court did not thereby cease to be open.

607

608

609 610

The distinction between filing a document and using it in the judicial process is emphasised in Smith v Harris [1996] 2 VR 335 at 341-343. See also Van Stokkum v The Finance Brokers Supervisory Board [2002] WASC 192 at [21]-[22]; Anon 2 v XYZ [2008] VSC 466 at [24]-[28]; Russo v Russo [2010] VSC 98 at [13]-[17]. Australian Securities and Investments Commission v Rich [2002] NSWSC 198 at [10]. Australian Securities and Investments Commission v Rich (2001) 51 NSWLR 643; [2001] NSWSC 496 at [23].

611 612

Re Hogan; Ex parte West Australian Newspapers Ltd [2009] WASCA 221 at [31]. Re Hogan; Ex parte West Australian Newspapers Ltd [2009] WASCA 221 at [32].

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information should be accessible unless there are good reasons for denying access. That decision is R, Guardian News & Media Ltd v City of Westminster Magistrates Court. 613 In that case, the United States government brought an action in the United Kingdom courts seeking to extradite two British citizens. A number of documents were referred to in the course of the hearing, which took place in open court, but they were not read out or exhibited. 614 The Guardian applied to the trial judge for copies of these documents, but the judge held that she had no power to make them available. Her decision was upheld on appeal by the Administrative Court but was overturned by the Court of Appeal. The Court of Appeal held that it is for the courts to decide, in their inherent power, what the principle of open justice demands and how it applies to their procedures. 615 Accordingly, the trial judge was wrong to hold that she had no power to make the requested documents available. The Court of Appeal rejected an argument that the open justice principle is satisfied if the proceedings are held in public and can be reported. 616 The Court held that this argument is based on too narrow a view of the purpose of the principle, which is not simply to deter impropriety or sloppiness by the presiding judge, but to enable the public to understand and scrutinise the justice system of which the courts are the administrators. On the facts, open justice was not satisfied merely because the case was heard in open court with extensive oral submissions that ventilated the issues and could be reported by the media. The Guardian had adduced credible evidence that it was hampered in its ability to report the case as fully as it wished by not having access to the documents in question. That being so, the Court said it should be cautious about making what would essentially be an editorial judgment about the adequacy of the material already available to the newspaper for its journalistic purposes. Acknowledging that the decision breaks new ground in the application of the principle of open justice, the Court laid down a default position in favour of access: In a case where documents have been placed before a judge and referred to in the course of proceedings, in my judgment the default position should be that access should be permitted on the open justice principle; and where access is sought for a proper journalistic purpose, the case for allowing it will be particularly strong. 617

However, it was conceded that in any given case there might be countervailing considerations. Thus, the court has to carry out a fact-specific exercise whereby it evaluates the purpose of the open justice principle and the potential value of the material in advancing that purpose 613 614

615 616

617

R, Guardian News & Media Ltd v City of Westminster Magistrates Court [2012] EWCA (Civ) 420. See also Mafart v Television New Zealand Ltd (2006) 3 NZLR 18. These document were the opening notes and skeleton arguments submitted on behalf of the US government and the defendants, affidavits, witness statements and items of correspondence between the Serious Fraud Office and the US Department of Justice. The Court conceded that Parliament can constrain how a court exercises its power, but held that it should not be taken to have done so unless this is very clearly spelt out. This is in stark contrast to the views enunciated by the Western Australian Court of Appeal in Re Hogan; ex parte West Australian Newspapers Ltd [2009] WASCA 221. See also New Zealand Law Commission, Access to Court Records, Report No 93 (2006) at [2.3]-[2.4]. R, Guardian News & Media Ltd v City of Westminster Magistrates Court [2012] EWCA (Civ) 420 at [85] per Toulson LJ. The Court deliberately did not base its decision on Art 10 of the ECHR. Other cases have done so.

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against any risk of harm which access to the documents may cause to the legitimate interests of others. While the case falls short of creating a common law right of access, it certainly demonstrates a more permissive approach to non-party access. 618 Australian decisions are increasingly to similar effect, at least where the documents have been put into evidence or referred to in open court. 619

Legislative intervention The Current Position [5.675] In most Australian jurisdictions, legislation and rules of court confer on non-parties rights of access they would not otherwise enjoy under a strict common law approach. However, there is no consistency in the approach adopted by Australian courts regarding the circumstances in which non-parties are permitted to inspect documents on a court file, except that a more restrictive approach to non-party access is generally taken in relation to criminal proceedings than civil proceedings. Anecdotal evidence suggests that there is also considerable variance in court practice in terms of the willingness of court staff to assist the media to gain access to documents, the cost of access and the timeliness with which, and procedures via which, access is provided. 620 In an attempt to address these concerns, some courts publish guidelines on access for the benefit of the media. 621 Although the rationale for granting access to documents on the court record may not be articulated in the legislation or rules of court, the stance taken on non-party access should reflect an appropriate balance between open justice and transparency, on the one hand, and countervailing interests – such as the right to a fair trial, protecting the administration of justice and securing the privacy and safety of litigants – on the other hand. However, the current position belies a principled approach across the board; the disparate approaches both within and between jurisdictions simply “run along a continuum from largely unrestricted access as of 618

See also: NAB v Serco [2014] EWHC 1225 (QB).

619

See, eg, Broad Construction Services (WA) Pty Ltd v The Construction, Forestry, Mining and Energy Union of Workers [2007] WASC 133; Buswell v Carles (No 2) [2013] WASC 54. These matters of practice are thoroughly canvassed in Innes Report of the Review of Suppression Orders and The Media’s Access to Court Documents and Information (2008), Ch 3 (although some are now outdated). See, eg, Federal Court of Australia, Media Access to Court Documents, http://www.fedcourt.gov.au/casemanagement-services/access-to-files-and-transcripts/court-documents/media-access; Media Access to Transcript, http://www.fedcourt.gov.au/case-management-services/access-to-files-and-transcripts/transcript/ media-access; Federal Court of Australia, Online Files, http://www.fedcourt.gov.au/case-management-services/ access-to-files-and-transcripts/online-files; Tasmania Magistrates Court, Guidelines for Granting Access by Media Representatives to Coronial Exhibits, http://www.magistratescourt.tas.gov.au/going_to_court/Journalists/ access_to_exhibits; Supreme Court of Victoria, Media Policies and Practices (2014) http:// www.supremecourt.vic.gov.au/home/library/media+release+-+media+policies+and+practices; County Court of Victoria, Access to Court Records Policy (2012); County Court of Victoria, Guidelines for the Media, 21 November 2013 https://www.countycourt.vic.gov.au/media; Western Australia, Guidelines for the Media: Reporting in Western Australian Courts, http://www.supremecourt.wa.gov.au/publications/pdf/ GuidelinesForTheMedia_06072007.pdf. Guidelines and Practice Notes are not rules of court and are just indicative of how a court will exercise its power: R (Cth) v Elomar (No 3) [2008] NSWSC 1443 at [17].

620 621

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right, to very limited access” with no apparent reason for the discrepancies. 622 In some courts, the rules give non-parties access as of right to certain documents in the file (such as the writ or originating process) or access as of right to all documents other than specified documents (such as affidavits). 623 Where access to documents is given as of right, a power is often reserved in the court or a court officer to make an order that a particular document should remain confidential. 624 At the other extreme, access might be completely denied. 625 In some jurisdictions the rules of court stipulate that certain court documents filed in a proceeding cannot be inspected by a non-party except with the leave of a court, judge or court officer 626 or, less commonly, unless person seeking access appears to have a “sufficient interest in the document”. 627 In the New South Wales Supreme Court, a person must seek leave to search any document or thing in any proceedings of the Court. 628 That court has made it clear that there is no “bright line rule” or a priori position that access will be either allowed or denied in 622

623

J Bellis, “Public Access to Court Records in Australia” (2010) 19 Journal of Judicial Administration 197 at 201. See also: Australian Law Reform Commission, Keeping Secrets: The Protection of Classified and Security Sensitive Information, Report No 98 (2004) at [7.25]-[7.41]. See, for example: High Court Rules 2004, r 4.07.4; Federal Court Rules 2011, r 2.32(2); Supreme Court Rules (NT), r 28.05 (see also Supreme Court of the Northern Territory, Access to the Court Building, Judgments, Exhibits and Files by the Public or the Media and Other Matters, Practice Direction No 2 of 2010); Criminal Code (NT), s 428; Supreme Court Rules (NT), rr 81A.09, 81A.39; Uniform Civil Procedure Rules 1999 (Qld), rr 980, 981; Criminal Practice Rules 1999 (Qld), rr 56, 56A, 57; District Court Act 1991 (SA), s 54(1); Magistrates Court Act 1991 (SA), s 51(1); Supreme Court Act 1935 (SA), s 131(1); County Court Civil Procedure Rules 2008 (Vic), O 28.05; Supreme Court of Victoria (General Civil Procedure) Rules 2005 (Vic), O 28.05 (in Wilson v Mitchell [2014] VSC 280 this rule was said to be “founded on the principle of open justice which protects the public’s right to be informed of and to monitor court proceedings”: at [17]); Rules of the Supreme Court of Western Australia 1971, O 67, r 11 (see also Supreme Court of Western Australia, Access to Court Information, Discussion Paper (2014)).

624

For example, in the Victorian Supreme Court, no person can inspect or copy a document which the Court has ordered should remain confidential to the parties, nor can a non-party inspect or copy a document which, in the opinion of the Prothonotary, ought to remain confidential, without the leave of the court: Supreme Court of Victoria (General Civil Procedure) Rules 2005 (Vic), O 28.05. See also: Federal Court Rules 2011 (Cth), r 2.32. The Prothonotary has a general practice of treating divorce files as confidential: In the Matter of Proceeding No 291 of 1944 [2006] VSC 50; In the Matter of Proceeding No 1496 of 1956 [2010] VSC 192.

625

For example, court records of adoption proceedings are completely closed: Adoption Act 1993 (ACT), s 114; Adoption Act 2000 (NSW), ss 143, 194; Adoption of Children Act (NT), s 60; Adoption Act 2009 (Qld), ss 307O, 307P; Adoption Act 1988 (SA), s 24(2); Adoption Act 1988 (Tas), ss 71, 100, 101; Adoption Act 1984 (Vic), ss 76, 83; Adoption Act 1994 (WA), s 84.

626

Federal Court Rules 2011, r 2.32(3), (4); District Court Act 1991 (SA), s 54(2), (3); Magistrates Court Act 1991 (SA), s 51(2), (3); Supreme Court Act 1935 (SA), s 131(2), (3); Supreme Court Rules 2000 (Tas), r 33(4); Supreme Court of Victoria (Criminal Procedure) Rules 2008 (Vic), O 1.11(4) (this rule is supplemented by a Court protocol for the release of documents in criminal trials to the media which is contained in Media Policies and Practices (2014) p 13); Criminal Procedure Rules 2005 (WA), r 51. Common examples include affidavits, interrogatories, answers to interrogatories and subpoenas. Family Law Rules 2004 (Cth), r 24.13; Court Procedures Rules 2006 (ACT), rr 29.03(2) (civil proceedings), 40.53(2) (criminal proceedings).

627 628

New South Wales Supreme Court, Supreme Court – Access to Court Files Practice Note No SC Gen 2 (issued 1 March 2006). For civil proceedings in the District Court see: District Court, Access to Court Files by Non-Parties, Practice Note DC (Civil) 11. The registrar is empowered to provide to a non-party ‘appearing to have a sufficient interest in the proceedings’ a copy of any pleading or other document filed in the proceedings: Uniform Civil Procedure Rules 2005 (NSW), r 36.12(2)(b) (there is no definition of “sufficient interest”). For the position in relation to obtaining copies of judgments and orders see: Uniform Civil Procedure Rules 2005 (NSW), r 36.12(1).

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any given scenario. 629 Rather, each request for access must be dealt with on a case by case basis. However, in the context of criminal proceedings, media representatives in New South Wales are able to inspect certain documents for the purpose of compiling a fair and accurate report of the proceedings for publication. 630 This right begins when the proceedings commence and persists until two working days after they are disposed of. Most of the policy considerations that underlie access have been articulated in jurisdictions where non-parties, often media organisations, are required to seek the leave of the court to inspect documents on the court record, since courts have to give reasons for their decision. While it is clear that the principle of open justice does not mandate that leave to inspect be granted, it is treated as a weighty discretionary consideration. Many judges have expressed the view that if reporting is to be informed, journalists need access to the court file and should not be left to rely on the parties for information. 631 Indeed, one judge has stated that the clear message from the cases is that: decisions about access to documents in court files are to be determined first and foremost by reference to principles of open justice and the due administration of justice that require an appropriate measure of cooperation by the court with those sections of the media which seek to report proceedings before the court. 632

In similar vein, in Seven Network Ltd v News Ltd, Sackville J stated that: it seems to me that unless the interests of justice require otherwise, this Court would ordinarily take the view that a non-party should have access to all non-confidential documents and other material admitted into evidence. I say “ordinarily” because the circumstances of each case will vary and the exercise of the discretion under Federal Court Rules Order … will have to take into account the particular circumstances of the case. 633

However, the facilitation of open justice has to be balanced against other competing principles of justice which exist to protect the interests of the parties to the litigation. 634 Other principles that have the potential to qualify the principle of open justice in the context of access to documents are canvassed in Australian Securities and Investment Commission v Rich. 635 Important countervailing considerations include whether access to documents would prejudice 629 630 631

Eisa Ltd v Brady [2000] NSWSC 929 at [36]. Criminal Procedure Act 1986 (NSW), s 314. HIH; Australian Securities and Investments Commission v Adler (2001) 39 ACSR 216 at 217; Linter Group Ltd (in liq) v Price Waterhouse [2000] VSC 90, at [3]; Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 769 at [15]; Australian Securities and Investments Commission v Rich (2001) 51 NSWLR 643; [2001] NSWSC 496 at [20].

632 633

Australian Securities and Investments Commission v Rich [2002] NSWSC 198 at [9]. Seven Network Ltd v News Ltd (2005) FCA 1394 at [27]. This is similar to the approach taken in R, Guardian News & Media Ltd v City of Westminster Magistrates Court [2012] EWCA (Civ) 420. See also: Re Universal Music (Australia) Pty Ltd v Sharman Licence Holdings Ltd; Ex parte Merlin BV [2008] FCA 783. Although the Federal Court Rules in place at the time have since been replaced by r 2.32(3), there is no reason to suppose that the Court’s attitude would be any different, given the “burgeoning recognition that it is appropriate to mould procedures so that appropriate protocols can be put in place for the media to have access to material tendered in court to enable proper reporting to take place”: R (Cth) v Elomar (No 3) [2008] NSWSC 1443 at [21].

634 635

Eisa Ltd v Brady [2000] NSWSC 929. Australian Securities and Investments Commission v Rich (2001) 51 NSWLR 643; [2001] NSWSC 496.

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a fair trial, the commercial confidentiality of the material in the documents and privacy concerns, including the possibility that the accessed document will find its way on to the internet. 636 It is also relevant to consider whether access would undermine the Harman principle discussed in [5.720]-[5.790]. 637 One significant factor which impacts on access to documents is the stage the proceedings have reached at the time leave to access is sought and the extent to which the document has been utilised in the proceeding. A distinction is often drawn between a judicial proceeding that has reached trial stage and a judicial proceeding that is still at the pre-trial stage. In New South Wales, the distinction is important when the Supreme Court is considering whether to grant a non-party leave to inspect and copy court documents. The Practice Note that governs non-party access to the court record 638 states that access to the following documents will ordinarily be granted to non-parties: pleadings and judgments in proceedings that have been concluded (except if an order has been made that they remain confidential); documents that record what was said or done in open court; material that has been admitted into evidence; and information that would have been heard or seen by any person present in open court, unless, in each case, the judge or registrar considers that such material should be kept confidential. Access to other material will generally not be allowed. Thus the guidelines draw a distinction between documents that have been deployed in the court process, and those that have not. Non-parties are ordinarily permitted to inspect and copy documents in the former category. 639 It has been held that once a trial has taken place in open court or is in progress, the court has a: clear role to play in assisting the media to obtain a full and fair understanding of what has transpired so that informed reporting can occur without incomplete appreciation of source materials and in a way which enables the various matters which have come out in court, whether or not actually spoken aloud, to be understood in the full context of the case. 640

By contrast, the principle of open justice does not ordinarily warrant access to documents on the court file during the pre-trial phase. It has already been explained that many of these documents are never used once the case comes to trial. 641 Granting leave to the media to access documents at the pre-trial stage has the potential to cause serious prejudice to the 636 637

Judge JC Gibson, Judges, Cyberspace and Social Media http://www.aija.org.au/ 4 June 2014. Re Universal Music (Australia) Pty Ltd v Sharman Licence Holdings Ltd; Ex parte Merlin BV [2008] FCA 783 at [60].

638

New South Wales Supreme Court, Supreme Court – Access to Court Files Practice Note No SC Gen 2 (issued 1 March 2006).

639

But note that paragraph 16 of the Practice Note states that even where material has been read in open court or is included in pleadings, there may be good reason for refusing access. Material that has been rejected or not used or struck out as being scandalous, frivolous, vexatious, irrelevant or otherwise oppressive may still be legible. Where access to material would be otherwise unobjectionable, it may contain matters that are required to be kept confidential by statute (for example, the Criminal Records Act 1991 (NSW)) or by public interest immunity considerations (for example, applications to authorise listening devices and affidavits in support of suppression orders). Australian Securities and Investments Commission v Rich [2002] NSWSC 198 at [9]. See also: Hammond v Scheinberg (2001) 52 NSWLR 49. See [5.560]. Australian Securities and Investments Commission v Rich [2002] NSWSC 198 at [10]; New South Wales Supreme Court, Practice Note No SC Gen 2 (issued 1 March 2006), para [14].

640 641

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parties. These documents may contain as yet untested or incompletely tested allegations which might prejudice the trial or seriously injure reputation, with no necessary redress in defamation. 642 These allegations may not be pursued once the case comes on for hearing. A more lenient view of pre-trial access to documents may be taken where the pleadings are relatively settled and unlikely to change, for example, where a defence has been verified. 643 Other cases have eschewed the distinction and credit the public with the ability to distinguish between allegations made by the parties and judicial findings. 644 The principle of open justice may not support a request for access long after the proceeding has concluded, as its primary concern is with “monitoring the decision-making process as it takes place”. 645 It used to be the case that, even if the media managed to procure access to court documents, the publication of pleadings, affidavits and other documents before a trial constituted a contempt of court. 646 This is no longer the case. 647 However, there is English authority to the effect that it is an interference with the administration of justice, and therefore a contempt of court, for a journalist to inspect documents on a court file without leave of the court if it was known that leave was required but not obtained, or if leave was obtained by deceit or trickery on court officers, or if, to the knowledge of the journalist seeking access, the court officer acted under a mistake that the journalist was entitled to inspect the document, even if the mistaken belief was not induced by any deception. 648 Further, it is a contempt of court for the media to publish information obtained pursuant to an unauthorised inspection if the publisher knew that the information was obtained in an unauthorised manner, in contravention of the rules governing access. 649

Moves to Harmonise Access to Court Information [5.680] Concerns about the inconsistent approaches to non-party access to court documents have been expressed in many forums for many years. 650 In 2004, the Australian Law Reform Commission (ALRC) stated that “there should be consistency and clarity in relation to access to court documents across courts and jurisdictions” and recommended that

642

643 644 645 646 647 648 649 650

For a discussion of whether reports of documents filed in the court registry are protected by qualified privilege in defamation before the documents are referred to in open court see S Rodrick, “Defamation, the Media and Reporting Documents on the Court Record” (2005) 10 Media and Arts Law Review 171. HIH; Australian Securities and Investments Commission v Adler (2001) 39 ACSR 216. Llewellyn v Nine Network Australia Pty Ltd [2006] FCA 836 at [27]-[28]; Loti Tuqiri v Australian Rugby Union Ltd [2009] NSWSC 781 at [29]. Re Universal Music (Australia) Pty Ltd v Sharman Licence Holdings Ltd; Ex parte Merlin BV [2008] FCA 783 at [51]. Gaskell & Chambers Ltd v Hudson, Dodsworth & Co [1936] 2 KB 595. Smith v Harris [1996] 2 VR 335 at 349. Dobson v Hastings [1992] 2 All ER 94. Dobson v Hastings [1992] 2 All ER 94. The issue gained momentum in the years following the formation of the Australia’s Right To Know Coalition in 2007.

328 [5.680]

Chapter 5 – Media and Open Justice the Standing Committee of Attorneys-General should order a review of federal, state and territory legislation and court and tribunal rules in relation to non-party access to evidence and other documents produced in relation to proceedings with a view to developing and promulgating a clear and consistent national policy. 651

In April 2006 the New South Wales Attorney-General’s Department issued a paper titled Review of the Policy on Access to Court Information for public consultation, which was prompted by the lack of a uniform approach to access across the New South Wales courts and by the uncertainty surrounding non-party access as a result of the excessive judicial discretion discussed above. In 2008, the Department issued a follow up report – Report on Access to Court Information – which recommended that a new regime for accessing court information be adopted for all courts that exercise jurisdiction under the Criminal Procedure Act 1986 (NSW) and the Civil Procedure Act 2005 (NSW). Subsequently, the ALRC revisited the matter in its report, For Your Information: Australian Privacy Law and Practice, in which it re-affirmed the need for SCAG to review the matter with a view to promoting a consistent national policy. 652 It was at this time that SCAG began to investigate the possibility of the states and territories harmonising their rules on access to court information, in relation to both access to documents on the court record and suppression orders. 653 In May 2010, the NSW parliament enacted the Court Information Act 2010, which adopted the recommendations made in the Report on Access to Court Information (2008). Initially, SCAG intended that each jurisdiction would enact legislation in similar terms in order to harmonise the position across all jurisdictions, but this did not occur and in December 2010, SCAG resolved that each jurisdiction would examine ways to improve their own access to court information using the Court Information Act 2010 as a model. Following this resolution, the item was removed from SCAG’s agenda.

Court Information Act 2010 (NSW) [5.700] The main stance of the Court Information Act 2010 (NSW) is that open justice requires that non-parties should be accorded liberal access to information on the court record unless there are convincing reasons to deny access. The Act gives effect to this policy by dividing information contained in court records into two categories: open access information and restricted access information. A person can access open access information as of right unless the court orders otherwise. 654 A number of documents in both criminal 655 and civil 656 651 652 653 654 655

Australian Law Reform Commission, Keeping Secrets: The Protection of Classified and Security Sensitive Information, Report 98 (2004), Recommendation 7-1. Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, Report No 108 (2008) at [35.83]-[35.127]. In a Communiqué issued on 25 July 2008 SCAG announced that work on the former should be progressed in conjunction with, but separate to, the latter. Regarding suppression orders see [5.390]. Court Information Act 2010 (NSW), s 8(1). In relation to criminal proceedings, the information contained in the following court records is open access information: an indictment, a document that commences proceedings; a police fact sheet, statement of facts or any similar document summarising the prosecution’s case (but not if the proceedings have been set down for trial by jury and have not concluded); written submissions made by a party; a transcript of proceedings

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cases are listed as open access information. However, in order to protect a person’s privacy and safety, courts are required to ensure that, to the maximum extent reasonably practicable, personal identification information is removed from court records classified as open access. 657 The court rules may seek to achieve this in two ways: by providing access to a copy of the record from which personal identification information has been deleted or removed, or by providing for the filing or tendering of court records that have had personal identification information deleted or removed from the record or contained in a separate record. 658 Any court information that is not open access information is restricted access information. 659 In addition, certain information that would otherwise be open access information is restricted access information. 660 The purpose of restricting access to certain information is to ensure that the fair conduct of court proceedings, the administration of justice and the privacy or safety of participants in court proceedings are not compromised. 661

held in open court; statements and affidavits admitted into evidence, including expert reports; a record of any judgment, direction or order made in proceedings; a record of the dates on which proceedings are to be heard and the name of the judicial officer officially listed to hear the proceeding; and a record of a conviction in criminal proceedings: s 5(1). 656

In relation to civil proceedings, open access information includes: the originating process and pleadings (but only after the court has had an opportunity to consider any objection by the parties to the inclusion of any information in the originating process or pleadings or the proceedings have concluded, whichever occurs first) and any notice filed by a party; written submissions made by a party; a transcript of proceedings held in open court; statements and affidavits admitted into evidence, including expert reports; a record of any judgment or direction given or order made in proceedings, including in connection with case management and court listing of proceedings; a record of the dates on which proceedings are to be heard; and the name of the judicial officer officially listed to hear proceedings: s 5(2).

657

Court Information Act 2010 (NSW), s 18(1). “Personal identification information” is defined in s 4 to mean tax file, social security, medicare, financial account, passport and personal telephone numbers; a person’s date of birth (other than year) and home address (other than suburb, city, State or Territory); and other information that can be used to establish a person’s identity.

658

Court Information Act 2010, s 18(2). New South Wales courts already have such anonymisation policies in relation to transcripts and judgments: see, eg, Local Court of New South Wales, Theft Protection and Anonymisation Policy Practice Note No 1 of 2008. Court Information Act 2010 (NSW), s 6(1). Personal identification information; information contained in an affidavit, pleading or statement that has been rejected, struck out or otherwise not admitted; information divulged during proceedings on a voir dire; a police fact sheet, statement of facts or any similar document summarising the prosecution’s case in proceedings set down for trial by jury after the proceedings have been set down for trial by jury and until their conclusion (this information is open access information before the proceedings are set down for trial by jury and after the proceedings are concluded); information contained in a statement that comprises a medical, psychiatric, psychological or pre-sentence report, or in a statement of a person’s criminal record, except if it is contained or summarised in a judgment or orders made in proceedings; information contained in a transcript of, and statements and evidence admitted into evidence in, proceedings on an application to a court for an order to prohibit or restrict the publication or disclosure of information, but only while proceedings on the application are pending; information contained in a victim impact statement, other than information contained in a transcript, judgment or order; information contained in a letter of comfort provided by or on behalf of the prosecution in connection with criminal proceedings, other than information contained in a transcript of proceedings, judgment or order: Court Information Act 2010 (NSW), s 6(2). Court Information Act 2010, s 3(d).

659 660

661

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A person can access restricted access information only by leave of the court or if permitted by regulations. 662 A court may take a number of matters into account when deciding whether to grant leave to access the information, one being the extent to which the principle of open justice will be adversely affected if access is not provided. 663 To facilitate the fair and accurate reporting of court proceedings, the Court Information Act affords the news media 664 additional access rights to certain types of restricted access information unless a court orders otherwise. 665 The Court Information Act 2010 has not yet commenced operation in NSW 666 and has not formed the basis of reforms in other jurisdictions. One reason is that the stance taken in the Act, while hailed as a liberalisation of the access rules that currently apply in New South Wales, is actually less generous than the position that prevails in some other jurisdictions, such as Queensland and Victoria, at least in relation to civil proceedings. 667 To adopt the New South Wales model in these jurisdictions would therefore be a backwards step for open justice.

The electronic court record [5.710] Courts around the world are moving towards an electronic court record. Australian courts are no exception. 668 Most Australian courts now permit parties to file court documents electronically. In terms of open justice, one issue facing the courts is whether documents that can currently be inspected by members of the public at the court registry pursuant to legislation or rules of court should be able to be searched electronically. At present, members of the public cannot electronically search the contents of documents that have been filed with Australian courts. 669 The advent of “esearching” of court documents would be a boon for open justice, as it means that the public would be in a position to become better informed about the workings of 662 663 664

665 666

667 668 669

Court Information Act 2010, s 9(1). Court Information Act 2010, s 9(2). The “news media” are defined to mean a commercial enterprise that engages in the business of broadcasting or publishing news or a public broadcasting service that engages in the dissemination of news through a public news medium: s 10(5). It proceeds on the assumption that the public and the news media are distinct: K Biber, “Evidence From the Archive: Implementing the Court Information Act in NSW” (2011) 33 Sydney Law Review 575 at 580. A list of restricted access information that can be accessed by the news media is contained in Court Information Act 2010 (NSW), s 10. A court can impose restrictions on the use or disclosure of this information. N Shaver, How Privacy Hobbles Push for Open Justice The Australian, 3 June 2011; S Moran,, Court Information Act Verges on Farce as Horse Chases the Cart, The Australian, 4 November 2011. The delay is apparently due to the unresolved issue of who should be responsible for redacting personal identifying information from court information, since personal information appears in most documents filed with the court and it is unrealistic to expect documents to be lodged without the inclusion of any such information. See R Coleman, “Too Much Information (Not)” Gazette of Law and Journalism, 18 May 2010. A recent example is the Courts and Tribunals (Electronic Processes Facilitation) Act 2013 (WA). In some courts it is possible for non-parties to conduct an electronic search of lists of documents that have been filed in a proceeding. For example, in the Federal Court a non-party can search electronically to find out the name of each participant in a case, the file number, the date the case was commenced, the type of application, the type of each document filed in the case and the date it was filed, past and future hearing

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the courts, either through searches conducted on their own initiative or through information disseminated in the media which court reporters have garnered from electronic searches. However, content esearching can give rise to a number of problems. 670 There are particular concerns about its impact on the privacy and safety of those who have become embroiled in court proceedings. Under a paper regime, a person who wishes to search a document must attend the registry of the relevant court during office hours, and must know in advance which documents he or she wishes to inspect. The inconvenience, time and expense involved in physically attending a court registry has acted as a disincentive to all but the most persistent searchers, with the result that documents filed with the court have been described as enjoying a “practical obscurity”. 671 By contrast, documents that can be esearched are available at the touch of a button, without barriers of time, distance or convenience. Moreover, searches can be indiscriminate. Whilst this undoubtedly broadens the concept of open justice, the downside is that content esearching enables searchers to acquire knowledge of personal information on a wide range of matters and to use the information for purposes unrelated to the notion of open justice. 672 Australian courts and government departments must continue to grapple with the issues posed by the esearching of documents on the court record as they formulate policies on electronic access. 673 It is anticipated that, should content esearching become a reality, the onus will be placed on the parties who file documents to ensure that personal information is redacted from searchable documents and lodged in a separate document that is not available for public search. Judges already do this in their judgments and sentencing remarks. 674

Open justice and information disclosed pursuant to compulsory court processes [5.720] This section considers whether a party to a proceeding is entitled to grant the media access to documents or other information that have come into that party’s possession via a compulsory court process, such as the discovery process, and whether the media are entitled to publish information garnered in this way. dates, the current status of the case and where available, the text of orders made. However, the contents of a filed document are not available electronically. To inspect a document it is still necessary for a non-party to attend at the relevant registry and pay the prescribed fee. 670

671 672 673 674

See, for example: Dr A Cannon, “Policies to Control Electronic Access to Court Databases” (2001) 11(2) Journal of Judicial Administration 100; A Conley, A Datta, H Nissenbaum and D Sharma, “Sustaining Privacy and Open Justice in the Transition to Online Court Records: A Multidisciplinary Inquiry” (2012) 71 Maryland Law Review 772; PA Winn, “Online Court Records: Balancing Judicial Accountability and Privacy in an Age of Electronic Information” (2004) 79 Washington Law Review 307. United States Department of Justice v Reporters Committee for Freedom of the Press 489 US 749 (1989). A prime example is identity theft. The ability to esearch also has implications for spent convictions legislation and for the emerging “right to be forgotten”. See, eg, New South Wales Attorney-General’s Department, Review of Policy on Access to Court Information (2006); County Court of Victoria, Access to Court Records, Discussion Paper (November 2005). See, eg, Supreme Court of New South Wales, Identity Theft Protection and Anonymisation Policy (2007); Justice D Mullins, Judicial Writing in an Electronic Age (21 December 2004), http://www.archive.sclqld.org.au/ judgepub/2004/mullins211204.pdf.

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The existence and nature of the obligation [5.730] In civil actions, the rules of discovery compel litigating parties to produce to one another for inspection and copying, all documents in their possession or control which contain information relevant to the other party’s case. 675 The use of discovery involves an invasion of the right of an individual to keep the contents of his or her documents private. It is for this reason that the discovery process is not pressed further than the course of justice requires, and is accompanied by safeguards against its abuse. 676 One such safeguard is that the documents are produced upon the “implied undertaking” 677 of the parties and their legal representatives that the documents will not be used for a “collateral or ulterior purpose”, 678 that is, “for any purpose other than the proper conduct of the litigation”, 679 except with the leave of the court. Feeding documents to the media is regarded as a collateral purpose. 680 The High Court has explained that the obligation, although in its origins an “undertaking”, is no longer regarded as an undertaking of a voluntary kind, but is, in truth, an obligation imposed by the general law by virtue of the circumstances under which the information was generated and received. 681 The description of the obligation as an implied undertaking, though it persists, was described by the Court as a “fiction” and as “unrealistic”. 682 The obligation is independent of any obligation that exists under the general law relating to confidentiality. 683 It may be reproduced in legislation or rules of court. 684

675 676

677

678

679 680 681

682 683 684

Harman v Secretary of State for the Home Department [1983] 1 AC 280 at 299 per Lord Diplock. Riddick v Thames Board Mills Ltd [1977] QB 881 at 896; British American Tobacco Australia Services Ltd v Cowell (2003) 8 VR 571; [2003] VSCA 43 at [20]; Blanch v Deputy Commissioner of Taxation [2004] NSWCA 461. It used to be that discovery did not need to be made unless an express undertaking had been extracted from the other side: Richardson v Hastings (1844) 7 Beav 301; Hopkinson v Lord Burghley (1867) 2 Ch App 447; Reynolds v Godlee (1858) 4 K & J 88 discussed in Riddick v Thames Board Mills Ltd [1977] QB 881 at 910. See also: Ambridge Investments Pty Ltd (in liq) (recvr app’td) v Baker (No 3) [2010] VSC 545 at [16]. The advantage of an implied undertaking is that it comes into existence by implication of law as soon as discovery is made: Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 3 All ER 878 at 885. This phrase originated in Alterskye v Scott [1948] 1 All ER 469 at 470 per Jenkins J. See also Riddick v Thames Board Mills Ltd [1977] QB 881 at 896; Harman v Secretary of State for the Home Department [1983] 1 AC 280 at 302, 304; Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 3 All ER 878 at 885; Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576; Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10; McCabe v British American Tobacco Australia Services Ltd [2002] VSC 150 at [15]. Harman v Secretary of State for the Home Department [1983] 1 AC 280 at 307 per Lord Keith. This includes use or disclosure to enforce the criminal law. Eisa Ltd v Brady [2000] NSWSC 929 at [21]; Buswell v Carles (No 2) [2013] WASC 54 at [22]. Hearne v Street (2008) 235 CLR 125 at 131, 143, 145, 156-7. In a joint judgment, Hayne, Heydon and Crennan JJ at [115] maintained that this has been the case at least since the decision in Alterskye v Scott [1948] 1 All ER 469 at 162. Their Honours noted that express undertakings might still be given as a means of underscoring the importance of using the documents or information only for the purpose of the proceeding, but held that there is no need for a general practice of this kind: at 162-3. Hearne v Street (2005) 235 CLR 125 at 144 (per Kirby J); 162 (per Hayne, Heydon and Crennan JJ). Harman v Secretary of State for the Home Department [1983] 1 AC 280 at 308. See, eg, Uniform Civil Procedure Rules 2005 (NSW), r 21.7; Civil Procedure Act 2010 (Vic), s 27.

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The obligation extends to the documents themselves and to information derived from the documents whether “embodied in a copy or stored in the mind”. 685 It is owed to the party who gave discovery and also to the court. 686 The implied undertaking is crucial to the discovery process. Without it, parties may be reluctant to make a full disclosure of relevant documents and would have a greater temptation to destroy or conceal their existence. 687 This in turn would jeopardise the discovery of the truth in litigation. 688 The rationale for the imposition of the obligation is not peculiar to the discovery process, but is regarded as part of a wider principle that information provided by one person to another under compulsion 689 should be used only for the purpose for which it is provided. 690 Accordingly, the obligation applies to information provided pursuant to other compulsory court processes such as answers to interrogatories, 691 witness statements and affidavits served pursuant to a court direction or court rules, 692 documents produced for the purposes of taxation of costs, documents produced to a party by a stranger in response to a subpoena to produce 693 and documents seized pursuant to an Anton Pillar order. 694 It may also apply to documents produced in tribunal proceedings 695 and criminal proceedings. 696

685

686 687

688 689

690

691

692

693 694 695 696

Crest Homes Plc v Marks [1987] AC 829 at 854. See also Sofilas v Cable Sands (WA) Pty Ltd (1993) 9 WAR 196 at 204; Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 at 335; McCabe v British American Tobacco Australia Services Ltd [2002] VSC 150 at [15]. Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 at 321 and the authorities cited therein. The undertaking does not bind the party who provided the information. Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 at 321. In this sense, the obligation serves the public interest as well as the private interests of the party forced to divulge the documents or information: Ambridge Investments Pty Ltd (in liq) (recvr app’td) v Baker (No 3) [2010] VSC 545 at [30]. For a detailed discussion of the implied undertaking see M Groves, “The Implied Undertaking Restricting the Use of Material Obtained During Legal Proceedings” (2003) 23 Australian Bar Review 314. The compulsion to supply the information might emanate from a rule of court, from a specific order of the court or otherwise: Hearne v Street (2005) 235 CLR 125 at 154-5. See also Bourns v Raychem Corp [1999] 3 All ER 154 at 170. In Hearne v Street (2005) 235 CLR 125 at 142-3 Kirby J expressed a desire to re-conceptualise the principles and appeared inclined to endorse a less stringent obligation. However, the parties had not pressed for a “root and branch” re-expression of the law. Ainsworth v Hanrahan (1991) 25 NSWLR 155 (Kirby P acknowledged the existence of distinctions between discovery of documents and answers to interrogatories, but did not consider these distinctions sufficient to justify different rules pertaining to disclosure, given the closely related history and virtually identical purpose of the two procedures: at 166-168). Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509; Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd (1994) 53 FCR 125 at 131-132; Akins v Abigroup Ltd (1998) 43 NSWLR 539; ACCC v Telstra Corporation Ltd (2000) 96 FCR 317 at 322; Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3. Eltran Pty Ltd v Westpac Banking Corporation (1990) 25 FCR 322; Drivetime Radio Australia Pty Ltd v Pivotal Creative Solutions Pty Ltd [2010] NSWSC 1103 at [12]. Cobra Golf Inc v Rata [1996] FSR 819. See generally Hearne v Street (2008) 235 CLR 125 at 154-5; Sapphire (SA) Pty Ltd (trading as River City Grain) v Barry Smith Grains Pty Ltd (in liq) [2011] NSWSC 1451. Daintree Café Pty Ltd v Jacfun Pty Ltd [2002] NSW ADT 188. Taylor v Serious Fraud Office [1999] 2 AC 177 discussed in Groves (2003) 23 Australian Bar Review 314.

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Example

Ainsworth v Hanrahan [5.740] Ainsworth v Hanrahan (1991) 25 NSWLR 155 A party to a proceeding in the Supreme Court of New South Wales for defamation and abuse of process received answers to interrogatories from another party in those proceedings. The answers were not put into evidence or referred to in open court. The answers were subsequently given to the Superintendent of Licences and used during the hearing of an application for an amusement device dealer’s licence before the Licensing Court. The Court of Appeal held that the party to whom the answers were originally given had committed a contempt of court by facilitating their use in wholly extraneous and different proceedings.

[5.750] Documents brought before the court voluntarily for use in open court, and not as part of a coercive process, are not subject to the undertaking. 697

Breach of the obligation [5.760] A litigant who breaches the obligation by allowing a journalist access to discovered documents is guilty of a civil contempt of court, even if there is no element of bad faith or deliberate impropriety in the disclosure. 698 The obligation also binds third persons into whose hands the discovered documents have come – including the litigant’s legal representatives, industrial advocates and insurers, individual servants or agents of a corporate litigant, expert witnesses, court staff and the media – if they knew that the documents were generated or obtained by way of discovery or some other compulsory court process, it is not necessary to prove that they had knowledge of the obligation or of the potential consequences of breaching it. 699 A third party who is bound by the obligation and who uses the material for purposes

697

698 699

Uniflex (Australia) Pty Ltd v Hanneybel [2001] WASC 138 at [151]; British American Tobacco Australia Services Ltd v Cowell [2003] VSCA 43 at [42]; Industrial Registrar of New South Wales v The Uniting Church in Australia Property Trust [2003] NSWIRComm 387 at [24]-[25]; Prime Finance Pty Ltd v Randall [2009] NSWSC 361 at [31]-[32]; Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2009] NSWSC 533; Rowe v Silverstein [2009] VSC 157 at [25]; Tate v Duncan-Strelec [2014] NSWSC 1125 at [185]-[186]. The contempt might be regarded as criminal if it is contumacious. See [6.20]. Hearne v Street (2008) 235 CLR 125 at 163. Hayne, Heydon and Crennan JJ were unmoved by an argument that this could produce harsh and unfair consequences: at 163. See also: Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 at 334-335; Van Stokkum v The Finance Brokers Supervisory Board [2002] WASC 192 at [24]; Alcoa of Australia Ltd v Apache Energy Ltd (No 4) [2013] WASC 377 at [6].

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other than those of the proceedings commits a contempt of court. 700 An injunction lies against the use of discovered documents by third persons. 701

Duration and termination of the obligation [5.770] An issue that remains controversial is whether the obligation not to use information obtained pursuant to a compulsory court process for a collateral or ulterior purpose automatically terminates if and when the information is read out in court or received into evidence (without any restrictions on publication). It is clear that third parties such as the media are free to publish any information contained in a document that has been read aloud in open court, or which can be gleaned from a transcript or from the judgment. 702 However, the mere fact that a document has been received into evidence does not mean that a person who was present in court at the time would have gleaned much information about its contents. In fact, such a person may have learnt little if anything of the document’s contents: the reading out of the document may be incomplete, the judge might have read the document out of court in order to save time or counsel might be content to do no more than refer to it. In this case, the media might want to seek more information from the party that obtained the document through the discovery process. Whether a party can provide this information to the media depends on whether the obligation terminates when a document is read out in court or admitted into evidence. In Harman v Secretary of State for the Home Department 703 the House of Lords, by a bare majority, held that documents that had been read out in open court in the course of counsel’s opening, but not received into evidence, remained subject to the obligation. In that case, Harman acquired possession of discovered documents in her capacity as a solicitor for Williams in an action against the Home Office arising out of what Williams alleged was his unlawful confinement in a control unit in Hull Prison whilst undergoing imprisonment for armed robbery. After the documents had been read aloud, Harman showed them to a journalist in order that he might write a feature article for The Guardian newspaper on the subject of the control unit at Hull prison. The journalist made notes from the documents and took extracts from them. It was clear that Harman did not disclose the documents on Williams’ instructions or for the purpose of promoting his case. The article was critical of Home Office activities, and Lord Keith thought it unrealistic not to recognise that in allowing the journalist access to the discovered documents, Harman must have been activated by a desire to advance the causes espoused by the National Council for Civil Liberties, with whom she was employed as a legal officer. 700

701

702 703

Hearne v Street (2008) 235 CLR 125 at 157. A breach is treated as a contempt of court because the obligation is owed to the court not just to the disclosing party: Bourns Inc v Raychem Corp [1999] 1 All ER 908 at 915. Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd [1975] QB 613. Note, however, that an injunction against a third person might be refused if the litigant or the litigant’s legal representatives have already put the document in the public domain, albeit in breach of the implied undertaking, as in this case, an injunction would be futile: Berryman v Solicitor-General [2005] 3 NZLR 121. Sybron Corporation v Barclay’s Bank plc [1985] Ch 299 at 321; British American Tobacco Australia Services Ltd v Cowell (representing the Estate of McCabe (deceased)) (No 2) (2003) 8 VR 571 at 583. Harman v Secretary of State for the Home Department [1983] 1 AC 280.

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Lords Diplock, Keith and Roskill decided that the fact that the documents had been read aloud in open court did not free Harman from her implied undertaking not to use the documents for any purpose other than the conduct of Williams’ action. 704 To hold otherwise would, in their Lordships’ view, produce undesirable consequences to the detriment of the administration of justice. These included an increased temptation for litigants to destroy or conceal the existence of documents which would properly fall within the ambit of discovery, the employment of tactical manoeuverings to ensure that discovered documents are not read out in open court and an erosion of the rights of the party giving discovery. Moreover, a rule that the persistence of the undertaking depended on whether the documents had been read aloud in court would operate capriciously, since this would depend largely on the inclinations of the judge, and on whether he or she had read the documents out of court in order to save public time and expense. Lords Scarman and Simon dissented. They held that the implied undertaking ceases once the documents have been produced and read out in the course of a public trial, irrespective of whether they are held to be admissible in evidence, because at this point the documents cease to be private and confidential, the public being notionally present. According to their Lordships, once freedom of comment enures to the public at large, there is no cogent reason in the law of discovery which justifies the exclusion of the litigant and the solicitor from the right to make that use of the documents which everyone else may now make, namely, to treat them as matters of public knowledge which can be utilised for any purpose, even a collateral or ulterior purpose unconnected with the litigation. The dissenting judges were also troubled by an anomaly in the majority’s decision, namely, that it would be a contempt for Harman to show the documents to the journalist, but quite in order for her to provide him with a transcript of the proceedings which she could have obtained by private bargain, and in which is recorded the opening speech of counsel in which the contents of the documents were read aloud. In a number of jurisdictions, the principle espoused by the majority in Harman has been abrogated by rules of court. 705 In jurisdictions that have not resolved the issue via a rule of court, the courts remain divided as to whether the obligation ceases in respect of documents that have been read aloud in open court, documents which have been admitted into evidence but not read aloud and/or documents which are referred to in court but not read out. Some judges have declined to endorse the views of the majority in Harman. For example, Mason CJ has stated that the “implied undertaking is subject to the qualification that once material is adduced in evidence in court proceedings it becomes part of the public domain, unless the court restrains publication of it”. 706 The same sentiments were expressed by the High Court in 704

705

706

No action was taken against the journalist to whom Harman had provided the documents. The view of the majority was adopted in Sybron v Barclays Bank Plc [1985] Ch 299 and by the Victorian Supreme Court in Citicorp Life Insurance Ltd v Lubransky; Bagiotas v Citicorp Life Insurance Ltd [2005] VSC 101. See, for example: Federal Court Rules 2011, r 20.03 (any express order or implied undertaking not to use a document except in relation to a particular proceeding does not apply where the document has been read or referred to in open court in a way that discloses its contents unless the court orders otherwise); Uniform Civil Procedure Rules 2005 (NSW), r 21.7. Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 32-33. The case actually dealt with the application of the implied undertaking to documents and information produced by a party under a direction of

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Hearne v Street. 707 The resistance to Harman is based on the notion that the decision is difficult to reconcile with the scope and weight given to the principle of open justice. In Western Australia, the matter was discussed but not resolved in Hamersley Iron Pty Ltd v Lovell. 708 The case concerned documents that had been referred to in open court, but not read aloud or admitted into evidence. Whilst Anderson J could find no compelling reason why the obligation not to use the documents for collateral purposes should terminate once they had been discussed in open court, the other judges – Pidgeon and Ipp JJ – found it unnecessary to express a concluded view on the consequences that flow from reference to a discovered document in court. 709 The position in Victoria has been clarified. In British American Tobacco Australia Services Ltd v Cowell (representing the Estate of McCabe (deceased)) (No 2) the Victorian Court of Appeal upheld the position taken by the majority in Harman in relation to documents that have been received into evidence in open court. 710 In that case, it was put to the court that to hold that the obligation persists after a document has been adduced in evidence is to place a party in a more restricted position than a stranger, the latter being clearly entitled to make any lawful use of information produced pursuant to compulsory court processes that he or she can glean from being in court. However, the Court of Appeal regarded this “inconsistency argument” as more apparent than real, and in any event, held that to distinguish between a party and a stranger was justifiable. This is because the court did not consider that the complete knowledge of a document gained by a party pursuant to the discovery process could be equated with the often scant knowledge gained by a stranger in court by reason of its being put into evidence. In so doing the court refused to equate putting a document into evidence with its going into the public domain. Although the court held that the obligation did not cease upon the mere passing of a document into evidence, it did refine the position somewhat. First, the Court stated that if a party to whom the documents were discovered has available an alternative source of information about the contents of the documents, even a source deriving from their discovery, then, if that source be truly public, the party should be as free to make use of that alternative

707 708 709

710

an arbitrator in a private arbitration conducted under the Commercial Arbitration Act 1984 (Vic). Accordingly, the statement of Mason J was obiter dicta. But similar views have been expressed by New South Wales courts: Ainsworth v Hanrahan (1991) 25 NSWLR 155 at 168; Van Stokkum v The Finance Brokers Supervisory Board [2002] WASC 192 at [24]; Street v Luna Park Sydney Pty Ltd [2006] NSWSC 624 at [29]. Note that in New South Wales the matter is now governed by rules of court. See also Buswell v Carles (No 2) [2013] WASC 54 at [20]. Hearne v Street (2008) 235 CLR 125 at 142 (per Kirby J), 154-5 (per Hayne, Heydon and Crennan JJ). But the issue was only referred to in passing. Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316. Resolution of the issue was not required on the facts because the discovered documents in question had not been adduced into evidence, but simply referred to in the course of an application for leave to adduce them into evidence, an application which was ultimately denied. Thus even on the minority view in Harman, the undertaking had not dissolved. British American Tobacco Australia Services Ltd v Cowell (representing the Estate of McCabe (deceased)) (No 2) (2003) 8 VR 571. The Court of Appeal overruled the decision at first instance in which Byrne J held that, once a document is received into evidence, the undertaking ceases: McCabe v British American Tobacco Australia Services Ltd [2002] VSC 150. The documents in issue in the case had been marked as exhibits.

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source of information as any member of the public. 711 So, for example, if a discovered document is read verbatim in court, or is reproduced in a transcript or copied or quoted in a judgment, the obligation would ease and the parties could use this information for any lawful purpose. Second, the Court surmised that answers to interrogatories and witness statements might be in a different position to discovered documents vis-à-vis the cessation of the obligation. Although information produced pursuant to any coercive process becomes subject to the obligation, the Court suggested that the obligation might come to an end once an answer to interrogatories or a witness statement is tendered and admitted at the trial for the purpose for which it was brought into existence. However, the court ventured to suggest that this might not be the case if this material is put into evidence for a collateral purpose, or if it is tendered in evidence at an interlocutory stage. The reason for the distinction is that answers to interrogatories and witness statements are produced solely for the purposes of the litigation, whereas discovered documents have usually been brought into existence without thought to the possibility of their subsequent public disclosure in litigation. Accordingly, discovered documents are far more likely to contain private, hurtful, secret or damaging material which the party would want to have protected by the obligation.

Waiver and release from the obligation [5.780] Since the obligation is owed to the court as well as to the party making the discovery, 712 it is generally for the court to control, modify or release a party from it. 713 Likewise, a media organisation that has become subject to the implied undertaking would need to seek leave to use the documents. If the party divulging the information has given a clear and informed consent to a discovered document being published or used for a collateral purpose, the court will generally treat the obligation as having been waived and will not enforce the undertaking. 714 Where no such consent has been given, the dispensing power resides in the court. 715 This power will be exercised only in special circumstances and where the modification or release will not occasion injustice to the party that produced the documents. 716 The notion of special circumstances does not require the presence of

711 712 713 714 715 716

British American Tobacco Australia Services Ltd v Cowell (representing the Estate of McCabe (deceased)) (No 2) (2003) 8 VR 571 at 583. Some cases do not regard the obligation as one that is owed to the owner or provider of the documents: Harman v Secretary of State for the Home Department [1983] 1 AC 280 at 308. Prudential Assurance Co Ltd v Fountain Page Ltd [1991] WLR 756 at 764-5; Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 at 321-322, 339. Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 at 338. Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 37; Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 at 338. Crest Homes Plc v Marks [1987] AC 829 at 860; Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576 at 578; Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 at 225; Akins v Abigroup Ltd (1998) 43 NSWLR 539 at 549; Stonham v Speaker of the Legislative Assembly of New South Wales (No 1) (1999) 90 IR 325 at 331; Moage Ltd v Jagelman [2002] NSWSC 953 at [15]-[17]; Aarons v Moloney [2005] NSWSC 795 at [19]; Citicorp Life Insurance Ltd v Lubransky; Bagiotas v Citicorp Life Insurance Ltd [2005] VSC 101 at [63].

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extraordinary factors. 717 Relevant factors that courts take into account are listed in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd and include: the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document in achieving justice in the second proceedings. 718

More recent cases have shown a willingness to subject the obligation to the requirements of curial processes in other litigation in order to ensure that justice is achieved in that other proceeding. 719 Also relevant is the extent to which the information or document has entered the public domain. 720 Thus in British American Tobacco Australia Services Ltd v Cowell (representing the Estate of McCabe (dec’d)) (No 2) the court held that even though the obligation persists after a discovered document is put into evidence, this fact may make it easier for a party to obtain leave to use it for an ulterior purpose, especially if publicity has diminished the need to protect its privacy. 721 By contrast, it has been held that the fact that public debate would be furthered by the use of the document is not a special circumstance, 722 which does not augur well for the media.

The obligation and the implied freedom of political communication [5.790] In Hamersley Iron Pty Ltd v Lovell 723 the Western Australia Court of Appeal was required to consider whether the implied freedom of political communication overrides the implied undertaking, with the result that information in discovered documents which pertains to government or political matters can be communicated. In accordance with the principles laid 717 718

719

Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283 at 289. Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 at 225. In Ambridge Investments Pty Ltd (in liq) (recvr app’td) v Baker (No 3) [2010] VSC 545 Vickery J framed the test in slightly different terms: “‘special circumstances’ may arise where there are special features … of the case which afford good reason for modifying or releasing the undertaking, being circumstances which are of sufficient gravity to override the private and public interest in protection of the confidentiality of a person’s private documents which are required by law to be produced to a court”: at [33]. Laen Pty Ltd v At the Heads Pty Ltd [2011] VSC 315 at [10]. Accordingly, if a party desires to use documents or information in a subsequent legal proceeding, it may not be necessary to seek a release from the obligation from the judge who presided over the proceeding in which the obligation arose. Rather, it may be preferable for the party to seek, in the subsequent proceeding, access to information and documents that may bear upon the facts and issues in that proceeding, since the existence of an implied undertaking “does not restrict the court’s power in the subsequent proceeding to order discovery as part of its process”: Griffiths & Beerens Pty Ltd v Duggan (No 2) [2008] VSC 230 at [4]-[7]. See Australian Government Solicitor, Implied Undertakings in Litigation’ (Legal Briefing Number 75, 14 September 2005).

720 721

Citicorp Life Insurance Ltd v Lubransky; Bagiotas v Citicorp Life Insurance Ltd [2005] VSC 101 at [65]. British American Tobacco Australia Services Ltd v Cowell (representing the Estate of McCabe (dec’d)) (No 2) (2003) 8 VR 571 at 582. See also Bibby v Bulk Carriers Ltd v Cansulex Ltd [1989] QB 155 at 160-162.

722 723

Stonham v Speaker of the Legislative Assembly of New South Wales (No 1) (1999) 90 IR 325 at 331. Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316.

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down in Lange v Australian Broadcasting Corporation, 724 Langer v Commonwealth 725 and Levy v Victoria, 726 the Court held that if the law restricting political communication has a legitimate purpose and only incidentally infringes the implied freedom, the law will be valid provided it is reasonably appropriate and adapted to that purpose. The Court held that the law pertaining to the implied undertaking satisfied these requirements. First, it has a legitimate purpose which is compatible with the maintenance of responsible and representative government, namely, to protect private rights to confidentiality and maintain the integrity of the administration of justice. Secondly, enforcing the undertaking by way of contempt proceedings is an appropriate means of achieving the effective administration of justice which does not curtail the constitutional freedom more than is reasonably necessary for the purpose of upholding the administration of justice. The fact that a party can apply to be released from the implied undertaking is relevant to fulfilling this second requirement, in so far as it obliges the court to consider, on a case by case basis, the competing interests at stake, namely, the implied freedom of political speech and the need to protect the due administration of justice by preventing public disclosure of discovered documents.

Open justice and juries The disclosure and publication of jury deliberations [5.800] The disclosure and publication of jurors’ deliberations is subject to the common law of contempt, although the precise application of contempt law in this context is far from clear. In any event, all Australian States and Territories have enacted legislation which restricts the disclosure and publication of jurors’ deliberations by jurors and third parties such as the media. Before discussing the position under common law and statute, it is necessary to outline the policy considerations which underpin this issue.

Policy considerations [5.810] A number of public policy considerations have traditionally been advanced as to why jury deliberations should not be divulged or published, even after the conclusion of the trial. Some of these policy considerations focus on the benefits of secrecy to the public; others stress the benefits of secrecy to actual and potential jurors. 727 724 725

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. Langer v Commonwealth (1996) 186 CLR 302.

726 727

Levy v Victoria (1997) 189 CLR 579. For a more comprehensive discussion of the pros and cons of jury secrecy, see E Campbell, “Jury Secrecy and Contempt of Court” (1985) 11 Monash University Law Review 169; Justice McHugh, “Jurors’ Deliberations, Jury Secrecy, Public Policy and the Law of Contempt” (1986) 2 Australian Bar Review 114; New South Wales Law Reform Commission, Criminal Process Report: The Jury in a Criminal Trial Report 48 (1986), Ch 11; Solicitor-General v Radio New Zealand [1994] 1 NZLR 48; J Tunna, “Contempt of Court: Divulging the Confidences of the Jury Room” (2003) 9 Canterbury Law Review 79; L Reed, “The Confidentiality of Jury Deliberations” (2003) 37(1) The Law Teacher 1; R v Skaf (2004) 60 NSWLR 86 at [211].

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From the perspective of the general public, it is said that jury secrecy ensures the finality of jury verdicts. This argument is based on the premise that since the public are not informed of the reasoning which led the jury to reach the conclusion it did, there is no basis upon which the verdict can be attacked. If jury deliberations were disclosed, the verdict would be no stronger than the reasoning on which it is based. In other words, the value of a verdict lies in its unanimity and does not depend upon the process by which it is arrived at by the jury. 728 Related to the desire to ensure the finality of jury verdicts is the desire to secure and maintain public confidence in trial by jury and the propriety of verdicts. In the words of Lord Hewart CJ: If one juryman might communicate with the public upon the evidence and the verdict so might his colleagues also, and if they all took this dangerous course differences of individual opinion might be made manifest which, at the least, could not fail to diminish the confidence that the public rightly has in the general propriety of criminal verdicts. 729

From the perspective of jurors, secrecy facilitates freedom of discussion in the jury room because it allows debate amongst jurors to be full and frank and not unduly inhibited, and helps ensure that jurors are not pressured into casting votes in a particular way for fear of the consequences that might ensue if their dissent were made known to the world at large. 730 Thus, secrecy helps to ensure that in reaching a decision jurors are not influenced by considerations other than the evidence and arguments presented in court. Further, it is argued that if jury deliberations were disclosed, jurors might be exposed to harassment or physical or verbal attack by disappointed litigants, and subjected to pressure from counsel, or perhaps even the media, to justify their verdict. This may discourage jurors who are fearful or apprehensive about reprisals, community reaction or adverse media publicity from delivering unpopular verdicts and may lead potential jurors to seek to avoid jury duty. It may also render jurors susceptible to be influenced by whether disclosure might bring them financial reward. It should be emphasised that there are strong arguments in favour of the disclosure and publication of jurors’ deliberations, not the least of which is that it is antithetical to the principle of open justice. 731 For example, it has been argued that the disclosure of deliberations would expose any misunderstandings or misapplications of the law and would help to ensure that jurors make decisions in accordance with the law. Some maintain that jury secrecy constitutes an unwarranted restriction on freedom of speech, runs counter to the administrative law principle that public agencies invested with power to make decisions affecting the legal rights and liabilities of individuals should be obliged to furnish reasons for their decisions and inhibits scholarly research on the internal workings of juries. 732 728 729 730 731

732

R v Armstrong [1922] 2 KB 555 at 568. See also R v Papadopoulos [1979] 1 NZLR 621 at 626; R v Mirza [2004] 1 AC 1118 at [142]. R v Armstrong [1922] 2 KB 555 at 568. R v Mirza [2004] 1 AC 1118 at [142], [159]. These arguments are identified and expounded in more detail in Campbell (1985) 11 Monash University Law Review 169; E Campbell, “Jury Secrecy and Impeachment of Verdicts” (1985) 9 Criminal Law Journal 132; McHugh (1986) 2 Australian Bar Review 114; M Findlay, Jury Management in New South Wales, Australian Institute of Judicial Administration (1994), pp 137-143; J Hunter, “Jury Deliberations and the Secrecy Rule: The Tail That Wags the Dog?” (2013) 13 Sydney Law Review 809. Such research might include the investigation of issues such as whether jurors understand the meaning of “beyond reasonable doubt”, whether jurors commonly mistrust police evidence, whether jurors understand

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Common law position [5.820] There is no doubt that courts regard it as thoroughly undesirable for a juror to reveal what has taken place in the jury room. Jurors have been described as being under a “solemn obligation of secrecy” 733 the breach of which is regarded by the courts as “improper, deplorable and dangerous”. 734 Indeed, courts have gone so far as to suggest that the disclosure of jury deliberations to the press would “set in train a process whereby the institution of trial by jury may be eroded and ultimately destroyed”. 735 The importance placed on this obligation of secrecy is demonstrated by the fact that once a verdict has been handed down courts will not admit evidence from a juror as to what took place in the jury room, either by way of explanation of the grounds upon which the verdict was given, or by way of statement as to what the juror believed its effect to be, or to impeach a jury’s verdict. 736

judges’ directions, whether the personality of the advocate or the judge makes a difference to jurors and whether jurors sometimes refuse to apply the letter of the law in the interests of what they perceive to be the justice of the case: see J Baldwin and M McConville, Jury Trials (1979), p 132, cited in Campbell (1985) 11 Monash University Law Review 169 at 195. But note that the legislation in most jurisdictions creates exceptions for jury research: see [5.830]. 733 734 735 736

Attorney-General v New Statesman and Nation Publishing Co Ltd [1981] 1 QB 1 at 7. R v Armstrong [1922] 2 KB 555 at 568. See also Ellis v Deheer [1922] 2 KB 113 at 118. Re Matthews and Ford [1973] VR 199 at 213. Similar sentiments were expressed in Attorney-General v New Statesman and Nation Publishing Co Ltd [1981] 1 QB 1 at 10. Ellis v Deheer [1922] 2 KB 113 at 118, 121. The origin and foundations of this “exclusion” rule are to be found in a judgment by Lord Mansfield in Vaise v Delaval (1785) 1 TR 11; 99 ER 944. Lord Mansfield’s rule is explained at length in Campbell (1985) 11 Monash University Law Review 169. The rule has been affirmed in Australian authorities including R v Rinaldi (1993) 30 NSWLR 605; Minarowska v The Queen (1995) 83 A Crim R 78; R v Herring [1998] NSWSC 551; Burrell v The Queen [2007] NSWCCA 65. Recent English and Canadian cases have also confirmed that it is not permissible for a court to make inquiries of, or receive evidence from, a juror or jury after the jury has returned its verdict: Lalchan Nanan v The State [1986] AC 860; R v Miah [1997] 2 Cr App R 12; R v Lewis [2001] EWCA Crim 749; R v Pan [2001] SCR 344; R v Qureshi [2002] 1 WLR 518; R v Mirza [2004] 1 AC 1118; R v Smith [2005] 2 All ER 29. The rule is reproduced, with some enumerated exceptions, in s 129 of the Uniform Evidence Acts of the Commonwealth, the ACT, New South Wales, Tasmania and Victoria. However, at common law, a distinction has been drawn between the disclosure of matters that are intrinsic to jury deliberations and the disclosure of events which, even if they took place in the jury room, are extrinsic to the deliberations and relate to irregularities in conduct or procedure (for example, a discovery that inadmissible and prejudicial material had found its way into the jury room or that jurors had searched for such material on the internet, or that a court officer told the jury that the accused had prior convictions, or that a juror was drunk or unable to understand English). While evidence of the former is not admissible, evidence of the latter (whether emanating from a juror or a third party) will be admitted in appropriate cases with a view to determining whether a verdict should be set aside on the basis that a miscarriage of justice has occurred: R v Emmett; R v Masland (1988) 14 NSWLR 327; R v Young [1995] QB 324; R v Portillo [1997] 2 VR 723 at 726; R v Pan [2001] SCR 344 at [55]; R v Scaf [2004] 60 NSWLR 86. The High Court recently held that the exclusionary rule does not protect potentially criminal conduct, even when it occurs in the jury room. Thus the rule did not operate to preserve the secrecy of a note left in the jury room by a juror claiming that he or she had been physically coerced by another juror into changing his or her verdict. The Court held that the note was capable of giving rise to a reasonable apprehension or suspicion that the juror did not discharge his or her task because of unlawful coercion and this cast a shadow of injustice over the verdict. Thus it should not have been excluded. The Court remitted the matter to the West Australian Court of Appeal to be dealt with according to law: Smith v Western Australia [2014] HCA 3. The dividing line between matters considered intrinsic and extrinsic to jury deliberations is blurred. It has been argued that that “what is presented as a mandatory rule of exclusion is increasingly being

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This is known as the exclusionary rule. 737 Notwithstanding the undesirability of such conduct, it appears that at common law, a juror is not necessarily guilty of contempt (or any other offence) for disclosing this information. 738 Such a juror has merely violated a convention or rule of conduct, not a rule of law. This “solemn obligation” was once duly observed and breaches of the convention were minimal. However, prior to the introduction of legislation, the disclosure of jury deliberations to the media was becoming an increasingly frequent occurrence both in England 739 and Australia. 740 Although it is unlikely that common law contempt proceedings would be brought against a juror for disclosure of jury room deliberations, it does not follow that “those to whom the secrets of the jury room are divulged and who then publish the revelations, and those who actively seek out jurors for the purpose of interrogating them about their deliberations can expect their actions to be treated with equal indifference”. 741 In Attorney-General v New Statesman and Nation Publishing Co Ltd 742 the Divisional Court was called upon to determine whether the publisher of the New Statesman magazine was guilty of contempt of court for publishing details of a jury’s deliberations. This was the first time that the English Attorney-General had instituted proceedings for contempt on this basis. The article in question disclosed a juror’s account of significant parts of the jury’s deliberations in the course of arriving at a verdict in the trial of a former leader of the Liberal Party, and others, for conspiracy to murder. The jury acquitted the accused after 52 hours of deliberations. The trial exercised with a discretion operating to admit evidence of jury deliberations by assessing the degree of impropriety or prejudicial nature of juror misconduct”: D Boniface, “Juror Misconduct, Secret Jury Business and the Exclusionary Rule” (2008) 32 Criminal Law Journal 18 at 36. 737 738

The common law convention of jury secrecy is broader than the exclusionary rule, which is a rule of evidence: Hunter (2013) 35 Sydney Law Review 809 at 810. In Victoria, there is obiter dicta suggesting that no constraint can be placed upon jurors who wish to discuss their experiences at the trial and the views they formed in deliberations which took place in the jury room: Re Donovan’s Application [1957] VR 333 at 337 per Barry J. However, it has been suggested that if the juror has been directed by the judge not to communicate with third parties, including the media, disobedience to those directions might amount to a contempt although this may not be the case if the juror made the disclosure in the belief that there has been a miscarriage of justice: Law Commission, Contempt in Modern New Zealand Issues Paper 36 (2014) at [5.63]. The United Kingdom Law Commission acknowledged the existence of a view that a juror could be liable for civil contempt if he or she divulged deliberations contrary to a judicial direction: United Kingdom Law Commission, Contempt of Court Consultation Paper No 209 Appendix A: Background to the Contempt of Court Act 1981 at A.156.

739 740

Attorney-General v New Statesman and Nation Publishing Co Ltd [1981] 1 QB 1 at 7. Jurors in Australia revealed details of their deliberations to the media in the celebrated Chamberlain, Gallagher, Murphy and Bjelke-Petersen trials. See D Brown and D Neal, “Show Trials: The Media and the Gang of Twelve” in M Findlay and P Duff (eds), The Jury Under Attack (1988). In 2006 it was reported that a juror in the Chamberlain trial intended to sell her diary notes on an online auction site: Juror to Sell Lindy Chamberlain Trial Notes Online: www.abc.gov.au/news/items/200607/1695322.htm?darwin viewed April 2011. Had statutory intervention not occurred, the courts may have come to the point where they ceased to have confidence in the ability of conventions to curb the soliciting, disclosure and publication of jury deliberations and resorted to the law of contempt to punish such behaviour.

741 742

Campbell (1985) 9 Criminal Law Journal 132 at 133. Attorney-General v New Statesman and Nation Publishing Co Ltd [1981] 1 QB 1.

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and the committal proceedings which preceded it had received saturation coverage in the daily press. The article quoted the juror as saying that: All the jury were agreed that the accused were guilty of conspiracy of some kind; that 11 of them, after a little more than an hour’s deliberation on the first day, agreed that it was not proved there had been a conspiracy to murder and that, on a charge of incitement to murder, the jury could not accept the uncorroborated word of a prosecution witness who had agreed to accept money from a newspaper, the amount to be increased in the event of a conviction.

The Attorney-General argued that the article involved an interference with the administration of justice as a continuing process for the reason that the disclosure of what occurred in the jury room had a tendency “to imperil the finality of jury verdicts and thereby diminish public confidence in the general correctness and propriety of such verdicts” and would “affect adversely the attitude of future jurymen and the quality of their deliberations”. 743 Lord Widgery observed that: in view of the apparently diminishing respect for the convention of observance of jury secrecy and the risk of escalation in the frequency and degree of disclosures, it has become right for the Attorney General to invoke the law of contempt in relation to this article in the “New Statesman” since it represents a departure from the norm and is a serious and dangerous encroachment into the convention of jury secrecy.

The Divisional Court confirmed that the law of contempt has always been available for use in any case in which the administration of justice is in peril. 744 Accordingly, if the disclosure of jury deliberations were to interfere with the administration of justice, that disclosure is capable of amounting to a contempt. However, the court held that post trial disclosures of jury deliberations do not necessarily amount to a contempt. 745 In fact, far from being an interference with the administration of justice, the disclosure and publication of jury deliberations might actually promote the administration of justice. Unfortunately, the Divisional Court refused to provide specific guidance as to when a disclosure is likely to amount to a contempt. It simply stated that each disclosure must be judged in the light of all the circumstances in which the publication complained of took place, and that there must be special circumstances calling for condemnation. On the facts, there were no such circumstances, thus the disclosure was held not to be contemptuous. In reaching its decision, the court was influenced by the fact that the juror concerned gave an unsolicited interview without reward because he believed that some aspects of the case should be made public, and there was no suggestion in the article that the jurors had approached their task in anything other than a sensible and responsible manner. Moreover, the editor of the magazine had acted in the honest belief that nothing but good would result from the publication and that the publication did not amount to a contempt of court. 746 It may be inferred from the fact that the article in question was held not to amount to a contempt that identification of a particular case is not a special circumstance calling for condemnation, nor is the fact that doubts were 743 744 745 746

Attorney-General v New Statesman and Nation Publishing Co Ltd [1981] 1 QB 1. Attorney-General v New Statesman and Nation Publishing Co Ltd [1981] 1 QB 1 at 7. For a discussion of circumstances where this might be the case see: Tunna (2003) 9 Canterbury Law Review 79. The editor had sought legal advice before the article was published.

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cast in broad terms upon the innocence of the accused. 747 Moreover, the court suggested that no exception would be taken to disclosures which did not identify the persons concerned in the trial or to disclosures made for the laudable purpose of informing potential jurors what to expect when summoned for jury service. 748 It has been suggested that special circumstances calling for condemnation would exist if a publication was made for the purpose of attacking a juror, or if a juror was paid for his or her account, especially if the payment were to increase in the event of a conviction, as such a publication would tend to deter people from acting as jurors or from performing their duties properly, and thus constitute an interference with the administration of justice. 749 Not all media organisations who have interviewed jurors have fared as well as the New Statesman. In Solicitor-General v Radio New Zealand Ltd, 750 Radio New Zealand was found guilty of contempt after a journalist contacted a number of jurors years after the completion of a murder trial following the discovery of fresh evidence, and broadcast interviews in which one juror expressed doubts about the guilty verdict and another provided an explanation of the reasons why he had found the accused guilty. 751

Position under statute [5.830] The inadequate guidance given by the common law regarding the circumstances in which the disclosure or publication of jury room deliberations is permissible has led to the enactment of comprehensive legislation in all Australian states and territories to protect the secrecy of jury deliberations. 752 In most jurisdictions, jury deliberations are defined to mean statements made, opinions expressed, arguments advanced or votes cast by members of the jury in the course of their deliberations, other than anything said or done in open court. 753 Although the legislation does not abolish or replace the common law of contempt, it has been suggested that a court would be reluctant to find a contempt in respect of conduct not prohibited by statute. 754

747 748 749 750

N Lowe and B Sufrin, The Law of Contempt (1996), p 366. Attorney-General v New Statesman and Nation Publishing Co Ltd [1981] 1 QB 1 at 11. McHugh (1986) 2 Australian Bar Review 114 at 121. Solicitor-General v Radio New Zealand Ltd [1994] 1 NZLR 48.

751 752

There are no comparable Australian cases. Juries Act 1967 (ACT), s 42C; Jury Act 1977 (NSW), s 68A, 68B; Juries Act (NT), s 49A; Jury Act 1995 (Qld), s 70; Criminal Law Consolidation Act 1935 (SA), ss 246, 247; Juries Act 2003 (Tas), s 58; Juries Act 2000 (Vic), s 78; Juries Act 1957 (WA), ss 56A – 56E. Except where otherwise indicated, references to particular sections in [5.830] are references to sections in these statutes. The position in England is also now governed by statute: Contempt of Court Act 1981 (UK), s 8. (Note that, if enacted, the Criminal Justice and Courts Bill 2014 will repeal and replace s 8.) However, unlike the UK legislation, the legislation of the Australian states and territories does not treat disclosure or publication of jury deliberations as a contempt, but a statutory offence. In Victoria, deliberations are further defined to include any discussions between two or more jurors at any time during a trial of matters relevant to that trial: Vic, s 78(12). Justice M Gleeson, “The Secrecy of Jury Deliberations” (1996) 1(2) Newcastle Law Review 1.

753 754

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In the Australian Capital Territory, the Northern Territory, South Australia and Western Australia it is a statutory offence for a person to solicit or obtain information from a juror or former juror concerning the deliberations of a jury if the person intends to publish or facilitate the publication of the information. 755 The definition of “publish” is such that a person would be permitted to question a juror as to how the jury reached their verdict provided the person did not intend to “communicate or disseminate the information in such a way or to such an extent as to make it available to, or likely to come to the notice of, the public or a section of the public”. 756 Thus it seems that it would be permissible for a solicitor to question a juror about the deliberations in order to pass any information on to a barrister briefed to advise on the prospects of an appeal. 757 By contrast, in New South Wales, Queensland, Tasmania and Victoria there is a blanket prohibition on soliciting information from a juror. 758 In New South Wales the prohibition extends to soliciting information from, or harassing, a juror or former juror for the purpose of obtaining information about the deliberations of a jury or how the juror or jury formed any opinion or conclusion in relation to an issue arising in a trial or an inquest. It has been held that in this context the word “solicit” should be given its ordinary meaning, and should not be construed to require a measure of harassment, pressure, importuning or persuasion to obtain information. 759 Thus it is capable of covering a polite or private request or inquiry of a juror as to what occurred in the jury room. 760 In R v Rinaldi, 761 the New South Wales Court of Appeal warned members of the legal profession that if they question a juror about matters which have occurred within the jury room, they run the risk of contravening this provision, even if the lawyer is sought out and approached by a juror with the intention of making the disclosures. 762 Courts have cautioned that the same risk is run by other persons involved in a trial, including police officers, court officials and journalists. 763 The advent of social media has made it more likely that family and friends of a juror might breach this prohibition. 755

756 757

758 759 760 761

ACT: s 42C(3); NT: s 49A(3); SA: s 246(3); WA: s 56C. In South Australia it is a separate offence to harass a juror or former juror for the purpose of obtaining information about the deliberations of a jury, irrespective of whether the information is being sought for the purposes of publication: SA: s 247. ACT: s 42C(11); NT: s 49A(10); SA: s 246(11); WA: s 56A. It has been suggested that, even if permissible under statute, common law contempt of court or professional conduct restraints might restrict the soliciting of information by persons such as lawyers: Justice M Gleeson (1996) 1(2) Newcastle Law Review 1. NSW: s 68A(1); Qld: s 70(3); Tas: s 58(1)(b); Vic: s 78(1). R v Laws (2000) 50 NSWLR 96. R v Laws (2000) 50 NSWLR 96. R v Rinaldi (1993) 30 NSWLR 605 at 612. See also D Browne, “Talking to a Juror” (1994) 32(7) Law Society Journal 46.

762

See also R v K (2003) 59 NSWLR 431. The proper procedure for a member of the legal profession who is approached by a concerned juror about something that transpired in the jury room is to direct the juror to the officer of the court responsible for the welfare and supervision of juries: R v Rinaldi (1993) 30 NSWLR 605 at 612.

763

R v Rinaldi (1993) 30 NSWLR 605 at 612; R v Herring (Unreported, Court of Criminal Appeal, McInerney, Studdert and Simpson JJ 24 November 1998). In 2008, a juror in the Gordon Wood murder trial made an off-air telephone call to 2GB broadcaster Jason Morrison to inform him that jurors were planning to go to the scene of the alleged crime that night and that one juror had already decided that Wood was guilty. The caller sought Morrison’s advice but he refused. Morrison then contacted the court with the information and

[5.830] 347

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In all jurisdictions except New South Wales, it is a separate offence to publish information about jurors’ deliberations to the public. 764 This prohibition has primary relevance to the media, although it will also apply to persons who disseminate information about jury deliberations on social media. This prohibition was arguably breached in August 2010 when a newspaper published details of jury notes from the trial of Lindy Chamberlain in 1980. The notes had inexplicably found their way into the Northern Territory police file to which a journalist from the newspaper was granted supervised access. A police investigation followed but was reportedly called off for fear that it would identify a juror. 765 In all jurisdictions except New South Wales, members of a jury are prohibited from disclosing information about the jury’s deliberations if the juror is aware that, as a consequence, the information is likely to be published. 766 In New South Wales, a juror is not permitted to wilfully disclose information about the deliberations of a jury or how a juror or jury formed any opinion or conclusion on an issue arising in a trial or an inquest, but the prohibition only applies during a trial or inquest, and, even then, is permitted if the judge or the coroner requests or consents. 767 After a trial or inquest is over, any person (including a juror) is only prohibited from disclosing such information for a fee, gain or reward. 768 It has been noted that this provision appears to be directed primarily at the media, since the media is most likely to be offering a reward for disclosure. 769 In light of the prohibition on solicitation, any disclosure by a juror must be done of his or her own volition. 770 In some jurisdictions, proceedings for an offence against these provisions can be commenced only with the consent of the Director of Public Prosecutions. 771

subsequently gave evidence to the court as to what had taken place. The presiding judge took evidence from each member of the jury, but each juror denied making the call. The judge concluded that the caller was in fact one of the jurors and discharged the jury on the basis that Wood would not receive a fair trial if this juror had already made up her mind without hearing all the evidence: http://theaustralian.news.com.au/story/0,, 24136655-2702,00.html. 764

767

ACT: s 42C(4); NT: s 49A(4); Qld: s 70(2); SA: s 246(4); Tas: s 58(1)(a); Vic: s 78(1); WA: s 56D. “Lindy Chamberlain Jury Note Case Dropped” The Daily Telegraph (18 September 2010), http:// www.news.com.au/national/lindy-chamberlain-jury-note-case-dropped/story-e6frfkvr-1225925607089. ACT: s 42C(2); NT: s 49A(2); Qld: s 70(4); SA: s 246(2); Tas: s 58(2), (3); Vic: s 78(2); WA: s 56B(1). In the Australian Capital Territory, Northern Territory, South Australia and Western Australia, the prohibition applies to all persons, not just jurors or former jurors. In Tasmania, two separate provisions apply to jurors: a juror is not permitted to disclose information about the deliberations of the jury during the course of the trial, except in the course of deliberations with another juror in that trial (s 58(2)) and former jurors must not disclose such information if they have reason to believe that the disclosure may result in the prohibited matter being published to the public (s 58(3)). It is interesting to consider whether a juror who posted information about jury deliberations on Facebook or Twitter would be in breach of this provision. NSW: s 68B(1).

768 769 770 771

NSW: s 68B(2). Justice M Gleeson (1996) 1(2) Newcastle Law Review 1. R v Laws [2000] NSWSC 885 at [29]. ACT: s 42C(10); NT: s 49A(9); SA: s 246(10); Tas: s 58(8); Vic: s 78(11).

765 766

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The legislation in each jurisdiction creates exceptions to these prohibitions. The most significant is to be found in the Tasmanian and Victorian legislation, which permits a person to publish or disclose information about the deliberations of a jury if the publication or disclosure is not capable of identifying a juror or the relevant legal proceeding. 772 Concessions are also made for persons who wish to conduct research projects into matters relating to juries or jury service. Such persons can seek permission from the Attorney-General or relevant Minister to solicit and obtain information from jurors or former jurors and, in most jurisdictions, to publish the results of their research. 773 For their part, jurors are permitted to disclose information to such persons. All jurisdictions permit the soliciting of information about jury deliberations by bodies such as courts, commissions of inquiry, the Director of Public Prosecutions, the police and the Australian Crime Commission for the purposes of conducting investigations into, or prosecutions of, an offence relating to a juror or a jury, and the disclosure of information to such bodies is permitted. 774 In the Australian Capital Territory, the Northern Territory, South Australia and Western Australia, it is also permissible for a person to publish a fair and accurate report of an investigation concerning an alleged contempt of court or an alleged offence relating to jury deliberations. 775

Identifying jurors [5.840] All jurisdictions have legislation which prohibits or restricts the disclosure of the identity of jurors. 776 The purpose is to enable jurors, who are compelled to emerge from the community for the purpose of a trial, to enjoy the protection of anonymity. 777 In the Australian Capital Territory, the Northern Territory, South Australia and Western Australia, a person must not disclose information that identifies or is likely to identify a person as, or as having been, a juror in a particular proceeding if the person is aware that, as a consequence of the disclosure, the information is likely to be published. 778

772 773 774

775 776

777 778

Tas: s 58(6)(d); Vic: s 78(7). ACT: s 42C(5)(e), (6)(d), (7)(a); NSW: s 68A(3); NT: s 49A(5)(e), (6)(d), (7)(a); Qlfd: s 70(9) – (10); SA: s 246(5)(e), (6)(d), (7)(a); Tas: s 58(6)(e); Vic: s 78(9); WA: ss 56B(2)(g), 56C(2)(f), 56D(2)(a). ACT: s 42C(5)(a) – (c), (6)(a) – (c); NSW: s 68A(4); NT: s 49A(5)(a) – (c), (6)(a) – (c), (e); Qld: s 70(6) – (8); SA: s 246(5)(a) – (c), (6)(a) – (c); Tas: s 58(6)(a) – (c); Vic: s 78(3) – (4); WA: ss 56B(2)(a) – (e), (h), 56C(2)(a) – (e), (g). See Re Portillo [1997] 2 VR 723. In Victoria this extends to the Juries Commissioner. Juries Act 1967 (ACT), s 42C(5)(d), (7)(b); Juries Act (NT), s 49A(5)(d), (7)(b); Criminal Law Consolidation Act 1935 (SA), s 246(5)(d), (7)(b); Juries Act 1957 (WA), ss 56B(2)(f), 56D(2)(b). Juries Act 1967 (ACT), s 42C; Jury Act 1977 (NSW), s 68; Juries Act (NT), s 49B; Jury Act 1995 (Qld), s 70; Criminal Law Consolidation Act 1935 (SA), s 246; Juries Act 2003 (Tas), s 57; Juries Act 2000 (Vic), s 77; Juries Act 1957 (WA), ss 56A – 56E, 57. Re Mann; Re King (1911) VLR 171 at 177. ACT: s 42C(2); NT: s 49B(1), (2); SA: s 246(2); WA: s 56B(1).

[5.840] 349

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The publication of identifying information is also prohibited, as is soliciting or obtaining such information with the intention of publishing it or facilitating its publication. 779 Notwithstanding these restrictions, it is lawful in these jurisdictions to publish or otherwise disclose identifying information during the course of proceedings with the leave of the court, or, in the Australian Capital Territory, South Australia and Western Australia, with lawful excuse. 780 After proceedings have been completed, a person can publish or disclose information that identifies that person as a juror or former juror, or that identifies another person as a juror or former juror with that person’s consent. 781 In Western Australia, it is also a contempt of court to take or publish a photograph, likeness or other pictorial representation of any person summoned to attend or empanelled as a juror in a civil or criminal trial. 782 Similar restrictions exist in the other States. In New South Wales, a person may not wilfully publish or broadcast any material or otherwise disclose any information which is likely to lead to the identification of a juror or former juror in a particular trial or inquest, including a juror’s address. 783 However, the identity of a former juror can be disclosed with that juror’s consent. 784 In Queensland, it is an offence to seek from a juror or former juror the disclosure of information identifying or likely to identify a person as a juror or former juror in a particular proceeding or to publish this information to the public. This information may not be disclosed by a juror or former juror if that person has reason to believe that the information is likely to be published to the public. 785 However, identifying information may be disclosed in the course of a proceeding by any person with the court’s permission or with lawful excuse, or, after the proceeding has ended, by the juror or by someone else with the juror’s consent. 786 In Tasmania and Victoria, a person must not publish or cause to be published any information or image that identifies or is capable of identifying a person attending for jury service. 787 A person who holds a licence for a broadcasting service that publishes such information or image is deemed to have caused the publication of that information or image.

779 780

ACT: s 42C(3), (4); NT: s 49B(1) – (3); SA: s 246(3), (4); WA: ss 56C, 56D. ACT: s 42C(8)(a); NT: s 49B(1); SA: s 246(8)(a); WA: s 56E(a). The Western Australian exception applies to soliciting and obtaining as well as disclosing and publishing.

781

ACT: s 42C(8)(b); NT: s 49B(2); SA: s 246(8)(b); WA: s 56E(b). The Western Australian exception applies to soliciting and obtaining as well as disclosing and publishing. WA: s 57. NSW: s 68.

782 783 784

785

Thus an article could be written by a former juror about his or her experiences, but the juror would be restricted in what he or she said about other jurors in the case: Justice M Gleeson (1996) 1(2) Newcastle Law Review 1. Qld: s 70(2), (3), (4).

786 787

Qld: s 70(11). Tas: s 57; Juries Act 2000 (Vic), s 77.

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In most cases, the exceptions that apply to the disclosure and publication of information about jury deliberations also apply to the disclosure and publication of information about jurors’ identities. 788

788

See [5.830].

[5.840] 351

Contempt of Court

6

[6.10] INTRODUCTION ...................................................................................... [6.20] Types of contempt ................................................................................... [6.30] Contempt and the media ....................................................................... [6.40] Forums which are protected by the law of contempt .........................

354 354 357 358 [6.40] Ordinary courts ................................................................. 358 [6.50] Bodies other than ordinary courts ...................................... 359 [6.60] Who can be liable for contempt ............................................................ 361 [6.60] Refusing to disclose to the court the identity of a source of information ..................................................... 361 [6.70] Contempts involving the publication of information .......... 361 [6.80] Royal Commissions and tribunals ...................................... 363 [6.90] Institution of proceedings for criminal contempt ................................ 364 [6.100] Mode and timing of trial ....................................................................... 365

[6.110] SUB JUDICE CONTEMPT ....................................................................... [6.110] Object of sub judice contempt ............................................................ [6.120] Other means of dealing with prejudicial publicity ............................. [6.130] Elements of sub judice contempt ........................................................ [6.140] Mens rea for sub judice contempt ....................................................... [6.150] Publication of material .......................................................................... [6.170]

[6.220] [6.240] [6.250]

367 367 368 370 370 373 [6.150] What constitutes publication? ........................................... 373 [6.160] Publication and the internet .............................................. 374 When are proceedings sub judice? ...................................................... 379 [6.180] Criminal proceedings ........................................................ 379 [6.190] Civil proceedings ............................................................... 380 [6.200] Imminent proceedings ...................................................... 381 [6.210] Inactive proceedings ......................................................... 381 Tendency to interfere with the administration of justice ................... 382 [6.220] The requisite strength of the tendency .............................. 382 [6.230] Propositions about the operation of the tendency test ....... 383 Proving tendency ................................................................................... 387 Contemptuous publications: specific examples ................................. 388 [6.260] Trier of fact: judges and magistrates .................................. 388 [6.280] Trier of fact: jury ................................................................ 392 [6.530] Parties ............................................................................... 405 [6.560] Witnesses .......................................................................... 409 [6.610] Photographs or film footage of accused persons ................ 414

[6.640] Contemptuous publications: probabilities existing at the time of publication ..................................................................... 417 [6.650] [6.660] [6.670] [6.680]

Size and location of the readership or audience ................. Form of publication ........................................................... The identity of the maker of the statements ...................... Lapse of time between the publication and the proceedings ................................................................ [6.690] The relevance of other prejudicial publications .................. [6.700] Irrelevant factors ............................................................... [6.710] Publication of matters of public interest ............................................. [6.720] Normative approach .........................................................

417 418 419 419 420 422 422 423 353

Australian Media Law [6.730] [6.750]

Balancing approach ........................................................... 424 Features of the balancing approach ................................... 425 Reports of judicial proceedings ............................................................ 428 Stop writs ............................................................................................... 431 Constitutional protection of free political communication ............... 431 The future of sub judice contempt ...................................................... 434

[6.760] [6.770] [6.780] [6.790] [6.800] CONTEMPT BY JURORS ........................................................................ 436

[6.810] SCANDALISING THE COURT ................................................................ 439 [6.810] Rationale for scandalising contempt ................................................... 439 [6.820] What constitutes scandalising contempt? .......................................... 441 [6.830] Right to criticise ..................................................................................... 444 [6.840] Scurrilous abuse ..................................................................................... 446 [6.890] Allegations of partiality or impropriety ................................................ 448 [6.930] Defences: truth and fair comment ....................................................... 453 [6.940] Constitutional protection of free political communication ............... 454 [6.950] PENALTIES FOR CRIMINAL CONTEMPT .............................................. 456 [6.950] Types of penalties .................................................................................. 456 [6.960] Relevant factors ...................................................................................... 458

Introduction [6.10] Contempt of court is concerned with words or actions that interfere with the due administration of justice or that constitute a disregard for the authority of a court. It operates as a significant restraint on what the media can publish about particular legal proceedings and the courts in general. In Australia, contempt law remains primarily the province of the common law and is essentially uniform throughout the country. 1 In 1987, the Australian Law Reform Commission recommended that the common law of contempt be replaced by statutory offences, but this proposal was never implemented. 2 Over a decade ago, the New South Wales Law Reform Commission and the Law Reform Commission of Western Australia issued discussion papers and reports which identified deficiencies in the law of contempt and outlined options for reform, but their recommendations were not acted upon. 3

Types of contempt [6.20] Contempts of court are divided into two categories: criminal contempts and civil contempts. The distinction between a civil contempt and a criminal contempt is based on the nature of the contempt and has nothing to do with whether the proceeding in respect of which 1

2 3

Even in States and Territories that have comprehensively codified their criminal law, contempt remains the one exception (see, eg, Criminal Code Act 1899 (Qld), s 8). By contrast, in the United Kingdom, sub judice contempt is largely governed by the Contempt of Court Act 1981 (UK). Australian Law Reform Commission, Contempt, Report 35 (1987). New South Wales Law Reform Commission, Contempt by Publication, Discussion Paper 43 (2000) and Contempt by Publication, Report 100 (2003); Law Reform Commission of Western Australia, Contempt in the Face of the Court, Discussion Paper 1 (2001); Law Reform Commission of Western Australia, Contempt by Publication, Discussion Paper 2 (2002); Law Reform Commission of Western Australia, Contempt by Disobedience to the Orders of the Court, Discussion Paper 3 (2002); Law Reform Commission of Western Australia, Report on Review of the Law of Contempt, Report 93 (2003).

354 [6.10]

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the contempt is committed is civil or criminal. 4 Criminal contempts can take many forms, but “they all share a common characteristic: they involve an interference with the due administration of justice either in a particular case or more generally as a continuing process”. 5 The object of proceedings for criminal contempt is to vindicate judicial authority and to maintain the integrity of the judicial process in the public interest, not to protect the reputation or personal dignity of the individual judge attempting to administer justice. 6 The sanctions imposed for this type of contempt have a punitive and deterrent objective and include fines and imprisonment. Civil contempts involve disobedience to a judgment or order of a court, or breach of an express or implied undertaking given to a court. 7 Unlike criminal contempts, which are regarded as public wrongs that affect the community at large, disobedience to a process or order of a court was historically regarded as, in essence, a civil wrong, not a crime, enforcement being for the private benefit of the parties to the proceedings. 8 Where civil contempt proceedings are brought as a means of protecting a successful litigant’s rights, the sanctions are primarily remedial or coercive in nature, rather than punitive. 9 That is, they are designed to compel obedience not to punish disobedience. 10 Yet it is recognised that disobedience to a court order can assume the character of a criminal contempt if it is

4

See R v O’Brien [2014] UKSC 23 at [42].

5 6

Attorney-General (UK) v Leveller Magazine Ltd [1979] AC 440 at 449. Attorney-General (UK) v Leveller Magazine Ltd [1979] AC 440 at 449. See also Lewis v Judge Ogden (1984) 153 CLR 682 at 693. For a review of the authorities concerning the mental element necessary to establish a civil contempt see: Lade v Black [2006] QCA 294. Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 106. There are some court orders the breach of which is historically regarded as amounting to a criminal contempt, but they have no relevance to the media: Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 107; Witham v Holloway (1995) 183 CLR 525 at 530; Broken Hill Proprietary Company Ltd v Dagi [1996] 2 VR 117 at 170. Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 498-9; ASIC v Sigalla (No 4) [2011] NSWSC 62 at [7].

7 8

9 10

Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 498. Note, however, that a proceeding might be brought against a contemnor who has disobeyed a court order in order to punish the contemnor for past breaches rather than to coerce compliance with the order. This would be the case where the order has become impossible to comply with or the breach is incapable of being remedied. In this case, the proceeding will be regarded as criminal in nature: ASIC v Sigalla (No 4) [2011] NSWSC 62 at [9], [77]; Allbeury v Corruption and Crime Commission [2012] WASCA 84 at [61]-[62]. This means that there can be a distinction between the nature of the contempt and the nature of the proceeding brought in respect of it. This difference was articulated in Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 at [171]-[173], where Lindgren AJA explained that disobedience to a court order is a civil contempt (unless it is contumacious), but a proceeding brought in respect of that contempt may be criminal or civil, depending on its purpose and the sanctions sought to be imposed. See also Hearne v Street (2008) 235 CLR 125 and Siemer v Solicitor-General [2009] 2 NZLR 556, where this issue is discussed at length.

[6.20] 355

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deliberately defiant or contumacious, since a defiant breach puts in jeopardy the rule of law. 11 Accordingly, such proceedings for contempt may assume a double aspect and can result in a conviction being recorded. 12 The distinction between civil and criminal contempt was historically attended by a number of procedural consequences, some of which persist. For example, proceedings for civil contempt are generally brought only by a party to the judgment or order, 13 whereas proceedings for criminal contempt can be initiated by the Attorney-General, by the court of its own motion, or by any person with an interest in the subject matter of the proceedings. Criminal contempts must be proved beyond reasonable doubt whereas, at one point, the standard of proof for civil contempts was the balance of probabilities. At common law, a finding of criminal contempt could not be the subject of an appeal. Furthermore, fines could not be imposed in respect of civil contempts. Moreover, only civil contempts could be waived by the aggrieved party and only criminal contempts could be pardoned. In more recent times, the theoretical basis for the distinction between civil and criminal contempts has been described by courts as unconvincing, anomalous and illusory. 14 In Australia, the High Court has denied the existence of a true dichotomy between proceedings in the public interest (criminal contempts) and proceedings in the interest of the individual (civil contempts). 15 Even where a party brings proceedings to secure the benefit of an order or undertaking that has not been complied with, there is a public interest aspect to the contempt proceedings, as the public interest in the administration of justice requires compliance with all orders and undertakings irrespective of whether compliance also serves individual interests. 16 The High Court concluded that since all contempt proceedings vindicate the courts’ authority, all contempts should be regarded as constituting an interference with the administration of justice even if the position can be remedied between the parties. Accordingly, the Court held 11

12

13 14

15 16

Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 500; Witham v Holloway (1995) 183 CLR 525 at 530; Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at 484-485; National Australia Bank Ltd v Juric [2001] VSC 375 at [34], [160]; Pico Holdings Inc v Voss [2002] VSC 319 at [46]-[49]; Law Institute of Victoria v Nagle [2005] VSC 35 at [82]; ASIC v Sigalla (No 4) [2011] NSWSC 62 at [8]. A contempt that begins as a civil contempt remains so until the court decides that, due to the particular circumstances in which it was committed, it should be treated as a criminal contempt: National Australia Bank Ltd v Juric [2001] VSC 375 at [97]. But this is not always the case. See: Re Jones, Alleged Contempt of Court [2013] EWHC 2579 (Fam); Grocon v Construction, Forestry, Mining and Energy Union (No 2) [2014] VSC 134. For a discussion of the unsatisfactory nature of the distinction see: Seymour v Migration Agents Registration Authority [2006] FCA 965 at [73]-[112]. The same conclusion has been drawn by New Zealand courts: Solicitor-General (NZ) v Krieger [2014] NZHC 172 at [23]. The New Zealand Law Commission recently described civil contempt as a “complex hybrid”: Contempt in Modern New Zealand, Issues Paper 36 (2014) at [7.2]. Witham v Holloway (1995) 183 CLR 525 at 532. See also Matthews v ASIC [2009] NSWCA 155 at [27]. Witham v Holloway (1995) 183 CLR 525 at 532-533. The utility of retaining the distinction between civil and criminal contempt was addressed in Law Reform Commission of Western Australia, Report on Review of the Law of Contempt, Report 93 (2003), Pt IV. The Commission recommended its abolition. The same recommendation has been made by the New Zealand Law Commission: Contempt in Modern New Zealand, Issues Paper 36 (2014) ch 7.

356 [6.20]

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that all contempts must be proved beyond reasonable doubt. 17 Other differences between civil and criminal contempt have also been eliminated. For example, it is now clear that the power to fine exists in relation to civil contempts, at least if the disobedience is wilful. 18 Moreover, it is uncertain whether civil contempts can still be waived. 19 Although the theoretical basis for the distinction between criminal and civil contempt was regarded by the High Court as unpersuasive and described by the New South Wales Court of Appeal as an “uncomfortable one”, 20 the two types of contempt continue to exist and the conduct in question will generally need to be allocated to one category or another. 21 This is because legislation often distinguishes between the two types of contempt in relation to the rules of procedure and evidence and rights of appeal. 22

Contempt and the media [6.30] So far as the media are concerned, the most relevant type of contempt is criminal contempt. 23 The forms of criminal contempt most commonly committed by media organisations and journalists are: • Refusing to disclose to the court the identity of a source of information; 24 • Publishing confidential material that is the subject of an interlocutory injunction against a third party (often another media organisation) where the media defendant is not subject to, but knows of, the injunction; • Disclosing what has taken place in closed court or breaching a concealment or non-publication order; • Publishing material that has a real tendency to interfere with pending proceedings (“sub judice contempt”); • Publishing material that is calculated to undermine public confidence in the judicial process and to lower the authority of a judge or court (“scandalising contempt”); and 17 18

Witham v Holloway (1995) 183 CLR 525; Sigalla v TZ Ltd [2011] NSWCA 334 at [25]. Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98.

19 20 21

Louis Vuitton Malletier SA v Design Elegance Pty Ltd (2006) 225 ALR 541 at 548-552. Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 at [72]. Briggs v Lunt (No 4) [2011] WASCA 145 at [36]; ASIC v Sigalla (No 4) [2011] NSWSC 62 at [11]. In Siemer v Solicitor-General [2009] 2 NZLR 556 it was observed that the distinction persists in the United Kingdom, Canada, the United States and New Zealand: at [57]. See, for example, Supreme Court Act 1970 (NSW), s 101(5), (6), discussed in Hearne v Street (2008) 235 CLR 125; Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 at [71], [81]. One notable exception is the obligation that attaches to information received as a result of discovery or other compulsory court processes. Breach of this obligation is a civil contempt. This obligation, and its impact on the media, is discussed in [5.720]-[5.790].

22 23

24

This is often referred to as “disobedience contempt”. If the refusal to disclose the identity of a source occurs inside the courtroom, which is the case if a journalist refuses to answer a question concerning the identity of a source in the witness box, the refusal constitutes a contempt in the face of the court. As explained in [7.660]-[7.700], several Australian jurisdictions have recently accorded journalists a statutory presumption of non-disclosure of sources, which has diminished the likelihood that journalists will be prosecuted for contempt.

[6.30] 357

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• Revealing jurors’ deliberations. 25 The first two forms of contempt are dealt with in Chapter 7. 26 The other forms of contempt operate to restrict what the media can publish, and are collectively referred to as “contempts by publication”. The circumstances in which a breach of an in camera order, a concealment order or a non-publication order, or revealing jurors’ deliberations will amount to a contempt have been discussed in Chapter 5. After outlining some general principles pertaining to the law of contempt, this chapter will focus on sub judice and scandalising contempt. This chapter will also deal with an emerging threat to the administration of justice, namely, communications that emanate from jurors through their use of social media.

Forums which are protected by the law of contempt Ordinary courts [6.40] Contempt of court exists to protect the administration of justice. Courts of law that exercise judicial powers and functions are part of the administration of justice. Accordingly, all ordinary courts are protected by the law of contempt. This includes the High Court, the Federal Court, the Family Court, State and Territory Supreme Courts and courts in the intermediate and lowest tiers of the court hierarchy. Although these courts are all protected by the law of contempt, at common law, only courts of record have inherent power to punish contempts. 27 Courts not of record have no jurisdiction to punish contempts save that expressly vested by statute. 28 A court of record is a court that is either declared by statute to be a court of record, or a court that has power to fine or imprison for contempt or other substantive criminal offences. 29 Coroners’ courts are courts of record over which a coroner presides as a judicial officer. 30 A distinction must be drawn between superior and inferior courts of record. Only superior courts of record have inherent power to punish both contempts committed inside the court (referred to as “contempts in the face of the court”) and contempts committed outside the

25

The disclosure of jury deliberations is regulated by statute in all Australian jurisdictions, making it largely unnecessary to resort to the common law of contempt. See [5.800]-[5.830].

26 27

See [7.450], [7.510]. R v Forbes; Ex parte Bevan (1972) 127 CLR 1. The inherent powers of a court of record can be excluded, restricted, enlarged or replaced by legislation.

28 29

N Lowe and B Sufrin, Borrie and Lowe: The Law of Contempt (3rd ed, 1996), p 466. Ex Parte Power; Re Devereaux (1957) SR (NSW) 253 at 260 per Brereton J. See also E Campbell, “Inferior and Superior Courts and Courts of Record” (1997) 6 Journal of Judicial Administration 249 at 254-257. See, for example, Chippett v Thompson (1868) 7 SCR (NSW) (L) 349; Casey v Candler (1874) 5 AJR 358; Attorney-General (NSW) v Mirror Newspapers Ltd [1980] 1 NSWLR 374; Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1; Annetts v McCann (1990) 170 CLR 596; Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540. In some jurisdictions the Coroner’s Court is expressly declared to be a court of record, for example, Coroners Act 1997 (ACT), s 4(3); Coroners Act 2003 (Qld), s 64(1); Coroners Act 1996 (WA), s 5(4).

30

358 [6.40]

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court. 31 In most cases the statute creating a court will expressly state whether the court is a superior court, but even where the statute is silent, “it may, by implication, have accorded the court that status”. 32 The High Court and all State and Territory Supreme Courts are superior courts of record. 33 The Federal Court and the Family Court are superior courts of record of limited jurisdiction. 34 In addition to their inherent jurisdiction, some superior courts of record are invested with a statutory power to punish criminal contempts by summary process. Inferior courts of record have inherent jurisdiction to punish contempts committed in the face of the court, but not contempts committed outside the court. 35 However, the Supreme Court has an inherent superintendent jurisdiction to punish all contempts committed in connection with proceedings before inferior courts, including contempts committed outside the court. 36 The foundation of the Supreme Court’s power to punish contempts of inferior courts is the traditional, general supervisory function of the King’s Bench. 37 The power parallels the Supreme Court’s jurisdiction to correct inferior courts through the prerogative writs of mandamus, prohibition and certiorari.

Bodies other than ordinary courts [6.50] There is no simple test for determining whether the laws of contempt protect coronial inquests, royal commissions and statutory tribunals. In each case it is necessary to refer to the legislation establishing the body to see whether it extends the laws of contempt to that body. If the legislation is silent, regard must be had to the form and structure of the body’s proceedings and its affinity to the general justice system. 38 Coroners are obliged to hold an inquest into the manner and cause of certain violent and unnatural deaths and must hold an inquiry into the cause and origin of fires where property is destroyed or damaged. The subject matter of an inquest or inquiry is often of great public 31

R v Metal Trades Employers’ Association; Ex Parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 241, 254; Grocon v Construction, Forestry, Mining and Energy Union (No 2) [2014] VSC 134 at [73].

32 33

Campbell (1997) 6 Journal of Judicial Administration 249 at 253. High Court of Australia Act 1979 (Cth), s 5; Supreme Court Act 1933 (ACT), s 3(2); Supreme Court Act 1970 (NSW), s 22; Supreme Court Act (NT), s 12; Constitution of Queensland 2001 (Qld), s 58(2); Supreme Court Act 1935 (SA), s 6; Constitution Act 1975 (Vic), s 76; Supreme Court Act 1935 (WA), s 6(2). Federal Court of Australia Act 1976 (Cth), s 5(2); Family Law Act 1975 (Cth), s 21(2). Re Dunn; Re Aspinall [1906] VLR 493. Courts in the intermediate and lowest tiers of the State and Territory court hierarchies are inferior courts of record. So is the Coroner’s Court: Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1. Inferior courts may be given statutory power to punish a wider range of contempts. See, for example, Attorney-General (NSW) v Mundey [1972] 2 NSWLR 887, where the New South Wales Supreme Court punished a contempt of the Court of Quarter Sessions, and Attorney-General (NSW) v Mirror Newspapers Ltd [1980] 1 NSWLR 374, where the New South Wales Court of Appeal punished a contempt of the Coroners’ Court. John Fairfax & Sons Ltd v McRae (1955) 93 CLR 351 at 363. The power is probably a defining characteristic of a State Supreme Court: L Beck, “What is a ’Supreme Court of a State’?” (2012) 34 Sydney Law Review 295. Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540 at 549. See also New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 at 185-186; General Medical Council v British Broadcasting Corporation [1998] 3 All ER 426.

34 35

36

37

38

[6.50] 359

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curiosity and attracts considerable media attention which may present a danger to any subsequent criminal proceedings. In each State and Territory, legislation protects the Coroners’ Court against certain contempts in the face of the court, such as insulting the coroner, interrupting proceedings, or refusing to be examined as a witness or to produce documents. 39 It has been held that, notwithstanding their inquisitorial nature, proceedings in the Coroners’ Court are part of the administration of justice, and that, accordingly, the Coroners’ Court is also protected against other contempts, including contempts by publication. 40 One justification for this is that coroners often reach conclusions about the manner and cause of a death, and may make recommendations about criminal prosecutions. Although not actually determining blame, these conclusions and recommendations are an important step in that process, and can affect adversely the interests of any person upon whom they reflect unfavourably. 41 In contrast to coronial inquests, royal commissions, committees of inquiry and statutory tribunals are not part of the judicial structure of the State. Accordingly, at common law they are not protected by the law of contempt and are unable to invoke the exercise of the protective jurisdiction of a superior court. 42 However, statutory provisions frequently extend the law of contempt to royal commissions and statutory tribunals, even though they do not exercise judicial power. 43 The legislation may provide that the law of contempt applies to a commission or tribunal in its entirety, in which case it may be possible to commit a sub judice contempt or a scandalising contempt in relation to the commission or tribunal. 44 More commonly, legislation will simply provide that specified misconduct is a contempt. The specified misconduct commonly includes failure to attend a hearing or to produce documents or answer questions when required, giving false or misleading evidence or disrupting the proceedings. The power to punish such conduct may be conferred on the tribunal or commission itself, 45 or

39

40

41

Coroners Act 1997 (ACT), s 99A; Coroners Act 2009 (NSW), s 103; Coroners Act (NT), s 46; Coroners Act 2003 (Qld), s 42; Coroners Act 2003 (SA), s 36; Coroners Act 1995 (Tas), s 66; Coroners Act 2008 (Vic), ss 103, 104; Coroners Act 1996 (WA), ss 46, 46A, 51, 54. In most jurisdictions these actions are treated as contempts, but in Western Australia statutory offences are created. Attorney-General (NSW) v Mirror Newspapers Ltd [1980] 1 NSWLR 374; Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540. The power to punish other contempts may be conferred by legislation. See, for example: Coroners Act 1997 (ACT), s 99A(2). Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540 at 549.

42

Badry v Director of Public Prosecutions (Mauritius) [1983] 2 AC 297; X v Amalgamated Television Services Pty Ltd (1987) 9 NSWLR 575; Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540.

43

See for example: Administrative Appeals Tribunal Act 1975 (Cth), s 63; Royal Commissions Act 1902 (Cth), s 6O(1); Broadcasting Services Act 1992 (Cth), s 201; Industrial Relations Act 1996 (NSW), ss 164, 180. Even where legislation extends contempt law to a commission or tribunal, courts are likely to give more emphasis to freedom of speech when considering whether a publication is contemptuous: R v Arrowsmith [1950] VLR 78 at 85-86. This is because it is difficult to apply contempt law, which is concerned with protecting the administration of justice, to bodies that do not administer justice. See E Campbell, Contempt of Royal Commissions (1984), pp 38-42. There is an issue as to whether vesting judicial power in an administrative body is constitutional: Australian Law Reform Commission, Making Inquiries: A New Statutory Framework, Report No 111 (2009), at [3.31].

44

45

360 [6.50]

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on a court. Alternatively, legislation might provide that conduct that might otherwise amount to a contempt is a statutory offence and be dealt with in that manner. 46

Who can be liable for contempt Refusing to disclose to the court the identity of a source of information [6.60] A journalist who refuses to disclose the identity of a source when required to do so is personally liable for the contempt. 47

Contempts involving the publication of information [6.70] Technically, any person who can be said to bear a real responsibility for the publication of contemptuous material is liable to be held responsible for the publication and punished accordingly. 48 This includes persons who are involved in the preparation, content, production, distribution or broadcasting of contemptuous material. 49 In reality, persons in the chain of publication who exercise very little control over the actual content of a publication are unlikely to be prosecuted even though they are technically “publishers”. Yet at times, persons who bear a real responsibility for the dissemination of the contemptuous material are not prosecuted. This occurred in two cases of scandalising contempt, where a contemptuous remark made by a member of the public was reported by a media organisation and yet only the person who uttered the comment was prosecuted. The failure to prosecute the media organisation in these circumstances attracted adverse comment from the courts hearing the respective charges. In each case, members of the court noted that it was the dissemination of the statement by the media that greatly magnified the possibility of harm and led to the statement having an effect far beyond what it would otherwise have had. 50 The following persons may be liable for contempts arising out of the publication of material in the print media: the publisher or proprietor, 51 the editor, 52 the printer, 53 the distributor, 54

46

The Australian Law Reform Commission has made recommendations regarding whether conduct that would amount to a contempt of a royal commission or inquiry should be dealt with as a contempt or as a statutory offence: Report No 111 (2009), Ch 20.

47 48

Journalists and their sources are discussed in [7.510]–[7.700]. Harkianakis v Skalkos (1997) 42 NSWLR 22 at 60. It has been recommended that persons who have no control over the actual content of a contemptuous publication should be able to avail themselves of a defence of innocent dissemination: New South Wales Law Reform Commission, Report 100 (2003), [6.38]–[6.62]; Law Reform Commission of Western Australia, Report 93 (2003), pp 41-42. New South Wales Law Reform Commission (2000), [3.17]–[3.46]. For an in depth analysis of the liability of particular classes of individuals see: Attorney-General (NSW) v Willesee [1980] 2 NSWLR 143 at 155-160; Lowe and Sufrin (3rd ed, 1996), Ch 10; CJ Miller, Contempt of Court (3rd ed, 2000), Ch 9. Attorney-General (NSW) v Mundey [1972] 2 NSWLR 887 at 916-917; Gallagher v Durack (1983) 152 CLR 238 at 252-253. But see also Attorney-General (Qld) v Lovitt [2003] QSC 279, where the court did not comment adversely on the fact that none of the media organisations that published Lovitt’s contemptuous comments were prosecuted for contempt. Opinions differ as to whether the liability of proprietors is vicarious, or whether proprietors have a primary liability for a contempt on the basis that they provide the means whereby publication is effected. See, for

49

50

51

[6.70] 361

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the journalist responsible for supplying the information or for writing the article, 55 and persons interviewed by them. 56 Of these persons, the publisher or proprietor and the editor are invariably held responsible for a newspaper publication, since the publisher disseminates the material (and it is the dissemination of contemptuous material that is the essence of contempt), while the editor has ultimate and overall control over the contents of the newspaper. 57 However, an editor who is personally unaware of the content of the article in question might not be punished. 58 The following persons may be liable for contempts arising out of the broadcast of material on radio or television: the radio or television station (on the basis that the station is responsible for transmitting the offending material, whether or not it has actual knowledge of its contemptuous content), 59 the producer (the producer holds an equivalent position to an editor), independent production companies and their officers, 60 reporters and current affairs presenters, 61 and persons interviewed by them.

52 53

54

55

56

57 58

59

60 61

example, Lowe and Sufrin (3rd ed, 1996), pp 382-386. The directors of an incorporated newspaper are not normally held responsible for a contempt by publication unless they actually involve themselves in the publication: Harkianakis v Skalkos (1997) 42 NSWLR 22 at 61. Whether the liability of an editor is primary or vicarious is not settled: New South Wales Law Reform Commission (2000), [3.25]–[3.28]. Since the printer does not generally examine the newspaper copy for its content, and is therefore an unwitting participant in the contempt, a court may not think it appropriate to impose a punishment: R v David Syme & Co Ltd [1982] VR 173. In R v Griffiths; Ex parte Attorney-General [1957] 2 QB 192 an importer and distributor of a foreign magazine which contained material that was prejudicial to pending UK proceedings was held to be liable in contempt. It has been suggested that the case is explicable on the basis that no one else could have been held liable, since no other person involved in the publication resided or carried on business in the UK. It is unclear whether an Australian distributor of an Australian publication would be held liable for contempt: New South Wales Law Reform Commission (2000), [3.37]–[3.39]. R v Saxon, Hadfield & Western Mail Ltd [1984] WAR 283; R v Spectator Staff Pty Ltd [1999] VSC 107. The journalist’s liability is likely to be as an accessory before the fact, as the journalist does not actually publish the contemptuous material, but rather, prepares the material that is to be published: Registrar, Court of Appeal v John Fairfax Group Pty Ltd (unreported, NSW Court of Appeal, 21 April 1993) as cited in Director of Public Prosecutions (Cth) v Sexton (2008) 181 A Crim R 507; [2008] NSWSC 152 at [20]. Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368 at 379; Director of Public Prosecutions v Wran (1987) 86 FLR 92; Attorney-General (NSW) v Dean (1990) 20 NSWLR 650. Persons who give interviews are not entitled to assume that the media organisation will excise any contemptuous material. Lowe and Sufrin (3rd ed, 1996), p 375. R v Odhams Press Ltd [1957] 1 QB 73 at 80; R v Evening Standard Co Ltd; Ex parte Attorney-General [1954] 1 QB 578 at 586; R v Thomson Newspapers Ltd; Ex parte Attorney-General [1968] 1 All ER 268 at 271; R v David Syme & Co Ltd [1982] VR 173 at 178; Harkianakis v Skalkos (1997) 42 NSWLR 22 at 61. See also Lowe and Sufrin (3rd ed, 1996), pp 375-379. In Attorney-General (NSW) v Radio 2UE Sydney Pty Ltd [1998] NSWSC 28, the New South Wales Court of Appeal considered that the primary responsibility for contempts committed on talkback radio current affairs programs rests with the station, not with the presenter. For a discussion of the liability of subordinate television stations which receive programs under licence from a principal station see New South Wales Law Reform Commission (2000), [3.33]–[3.36]. Attorney-General (NSW) v Willesee [1980] 2 NSWLR 143. Attorney-General (NSW) v Willesee [1980] 2 NSWLR 143; Hinch v Attorney-General (Vic) (1987) 164 CLR 15.

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The question of who is a publisher of contemptuous material placed on the internet is very complex, as the communication of information online is generally facilitated by a number of intermediaries, such as internet service providers, internet content hosts and internet search engines. Their liability is discussed in greater detail at [6.160].

Royal Commissions and tribunals [6.80] It is possible for a non-curial tribunal, administrative body or statutory commission of inquiry to commit a contempt of court. 62 This will occur if the tribunal investigates and makes findings on the same matters that are in issue in a pending court action 63 and the investigations and findings have a real tendency to prejudice the fair trial of the action. 64 However, courts are alive to the fact that defamation proceedings may be artificially instituted as a means of halting tribunal proceedings, and may not be willing to suspend the tribunal proceeding in these circumstances. 65 It is also possible for a royal commission appointed by the Crown in exercise of its prerogative powers to commit a contempt of court. The actual formation of a commission by the Crown is a contempt if the purpose is to interfere with the administration of justice. 66 It can also be a contempt for a commission which is validly formed to continue its proceedings. However, the continuance of a royal commission will not amount to a contempt merely because there are co-incident court proceedings; the continuance of the commission must have a tendency to interfere with the administration of justice. 67 This is most likely to occur where a royal commission is established to investigate the activities of certain persons, where 62

See P English, “Justice: Contempt by Concurrent Inquiry” (2012) 37(3) Alternative Law Review 192.

63

It is imperative that curial proceedings be already on foot, as “an administrative process cannot constitute an interference with the due administration of justice in criminal proceedings which are yet to be commenced”: Today FM (Sydney) Pty Ltd v Australian Communications and Media Authority [2014] FCA 1157 at [53]-[56]; Today FM (Sydney) Pty Ltd v Australian Communications and Media Authority [2014] FCAFC 22 at [117].

64

For example, in Watts v Hawke & David Syme & Co Ltd [1976] VR 707, the Judiciary Committee of the Australian Journalists’ Association was enjoined from continuing to hear a complaint against a journalist until a defamation action brought by the journalist against the complainant had been concluded. In 2010, AFL footballer Andrew Lovett went to the AFL’s grievance tribunal seeking reinstatement following his dismissal by the St Kilda football club. The tribunal stayed the hearing pending the outcome of criminal charges against Lovett, after being advised that a hearing would potentially prejudice his case. See Burton v Harris [1979] Qd R 548; Francis v Herald & Weekly Times (unreported, 17 March 1987, Supreme Court of Victoria, Lush J) noted in (1978) 52 Australian Law Journal 336; Hercules v Phease [1994] 2 VR 411; ANZ Banking Group Ltd v Richard Ellis (Victoria) Pty Ltd (unreported, Vic Supreme Court, 31 Aug 1993). These cases are discussed in P Bartlett, “Concurrent Defamation and Tribunal Proceedings” (1994) 1(8) Media Law Reporter 120. Stop writs are discussed in [6.770]. This would be the case if a royal commission was established to inquire into whether an offence has been committed, in circumstances where a prosecution for an offence is already pending: Victoria v Australian Building Construction Employees and Builders’ Labourers Federation (1982) 152 CLR 25 at 53-54. See also McGuinness v Attorney-General (Vic) (1940) 63 CLR 73 at 85. Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 (High Court held that a Royal Commission was not in contempt of court because there was not a sufficient overlap between the matters being dealt with by the Commission and the issues being litigated in the Federal Court). See also: Clough v Leahy (1904) 2 CLR 139 at 161; Hammond v Commonwealth (1982) 152 CLR 188; Johns v Australian Securities Commission (1992) 35 FCR 16 at 38-42; X7 v Australian Crime Commission (2013) 248 CLR 92 at 144-5.

65

66

67

[6.80] 363

Australian Media Law

those persons are charged with criminal offences arising out of those activities. 68 Because royal commissions are not bound by the rules of evidence, it is highly likely that material would be put before the commission which would not be admissible at the trial. If this material was published by the media, it would become a matter of public knowledge and might prejudice potential jurors against the accused persons. 69 In this case, a court has power to declare the royal commission to be in contempt of court, and to restrain by injunction the hearings of the commission whilst the proceedings are sub judice. 70 Royal commissions which are appointed by statute and empowered to inquire into and report upon specified matters are in a different position to those established by the Crown. A commission appointed by statute does not commit a contempt of court by acting within its authority, even if its proceedings have a real and definite tendency to interfere with the administration of justice. 71 This proposition derives from the fundamental rule of the common law that the common law itself gives way to statute law. 72

Institution of proceedings for criminal contempt [6.90] At common law, proceedings for criminal contempt can be instituted by any one of three persons. 73 Proceedings are most commonly instituted by the Attorney-General, since the Crown has the ultimate responsibility for protecting the courts and the due administration of justice, and for enforcing the criminal law. 74 However, the Attorney-General is not obliged to bring before the court every prima facie case of contempt that is brought to his or her attention. Rather, the Attorney-General must make a judgment as to whether it is in the public interest that proceedings should be instituted. 75 The prosecutorial discretion of the Attorney-General is not reviewable. 76 Secondly, proceedings for criminal contempt may be

68 69

See S Donaghue, “Coercive Questioning After Charge” (2000) 28 Federal Law Review 1. If the case is being heard by a judge alone there is far less risk of prejudice and a court is likely to allow the commission to proceed despite the supervening litigation: Campbell (1984), p 6.

70

It is possible, but unlikely, that a court would allow a royal commission to continue its proceedings in camera: Campbell (1984), p 7. Royal commissions generally deal with matters of great public interest and it is therefore especially desirable that their proceedings be held in public. But see Inquiries Act 2014 (Vic), s 24. Lockwood v Commonwealth (1954) 90 CLR 177. See also: Lee v NSW Crime Commission (2013) 302 ALR 363 at 379-80.

71 72 73 74

75

76

Lockwood v Commonwealth (1954) 90 CLR 177 at 185. This is to be compared with proceedings for civil contempt, which are ordinarily instituted by the parties to the proceedings in respect of which the contempt is alleged to have been committed. Whether it is the role of the Attorney-General to defend the judiciary from sustained political attack has come under question. See B Heraghty, “Defender of the Faith? The Role of the Attorney-General in Defending the High Court” (2002) 28(2) Monash University Law Review 206; R McColl, “Reflections on the Role of the Attorney-General” (2003) 14 Public Law Review 20; G Griffith “The Office of Attorney-General in New South Wales” (2007) 11 Legal History 79 at 101-104. The role of the Attorney-General is discussed extensively in Attorney-General v Times Newspapers Ltd [1974] AC 273. See also Attorney-General (UK) v News Group Newspapers Ltd [1987] QB 1 at 16. Selective prosecution is partly responsible for the uncertainty that pervades contempt law. R v Von Einem (1991) 55 SASR 199 at 223.

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initiated by private persons. 77 Private proceedings are most likely to be brought by a party to the litigation in respect of which an alleged contempt has been committed. 78 However, such a person is under no duty to bring the matter before the courts and may decline to do so, perhaps because of the expense involved, or to avoid a suggestion that the purpose of the application is to prevent the disclosure of embarrassing (but not prejudicial) facts. 79 The fact that litigants can bring proceedings for contempt does not mean that the proceedings are concerned with vindicating the private interests of those litigants, even though this might be the litigant’s motive in bringing the action. At all times, the object of the proceedings is to protect the public interest in the due administration of justice. Thirdly, a court acting on its own motion may also bring proceedings for contempt, including contempt by publication, often by directing an officer of the court to commence contempt proceedings on the court’s behalf. 80 The power of the Attorney-General, private persons or the courts to initiate contempt proceedings can be modified by legislation. Moreover, in some jurisdictions, the Director of Public Prosecutions (“DPP”) may have standing to institute proceedings for contempt, at least in respect of contempts committed in relation to cases that the DPP is prosecuting. 81

Mode and timing of trial [6.100] For centuries, all contempts except those occurring within the courtroom were tried upon indictment. 82 However, in an unpublished judgment in 1765, Wilmot J claimed jurisdiction to punish all contempts by summary process, declaring that the practice rests on the same foundation as trial by jury, namely, immemorial usage and practice. 83 Although the 77

78

79 80

R v Fletcher; Ex parte Kisch (1935) 52 CLR 248 at 258; R v Dunbabin; Ex parte Williams (1935) 53 CLR 434; Ex parte Tubman; Re Lucas (1970) 72 SR (NSW) 552; European Asian Bank AG v Wentworth (1986) 5 NSWLR 445 at 458-60. Attorney-General v Times Newspapers Ltd [1974] AC 273 at 312; John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 467, 482; Director of Public Prosecutions v Australian Broadcasting Corporation (1987) 86 FLR 153 at 159; Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) 5 BR 10 at 16-17; United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 at 328-331; Willshire-Smith v Votino Bros Pty Ltd (1993) 41 FCR 496; Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316; Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd [2003] NSWSC 714; [2003] NSWSC 775. A corporation established by legislation and having the power to sue and be sued is entitled to bring proceedings for contempt to protect the integrity of litigation to which it is a party even in the absence of an express statutory power to do so: Director of Public Prosecutions v Australian Broadcasting Corporation (1987) 86 FLR 153 at 160; Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540 at 547. Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) 5 BR 10 at 16. Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650; Anissa Pty Ltd v Parsons [1999] VSC 430; Prothonotary of the Supreme Court of New South Wales v Katelaris [2008] NSWSC 389; The Queen v Hinch [2013] VSC 520.

81

Director of Public Prosecutions v Australian Broadcasting Corporation (1987) 7 NSWLR 588. It is unlikely that the DPP would prosecute scandalising contempts, at least where they are not connected to a particular proceeding: K Gould, “Scandalising Contempt in Australia: Dead? Dying? In Much Danger? … (Not!)” (2010) 15 Media and Arts Law Review 23 at 30.

82 83

From the earliest times, courts exercised a summary jurisdiction to punish contempts in the face of the court. R v Almon (1765) Wilm 243; 97 ER 94.

[6.100] 365

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decision was one for which there was scant authority, 84 it has been accepted as correct in a long line of decided cases and is now regarded as too firmly established to be altered, despite its dubious historical basis. 85 So although criminal contempt can still theoretically be tried on indictment before a jury, for all practical purposes, trial on indictment is obsolete and all allegations of contempt of court are dealt with by a judge or bench of judges sitting alone. 86 In this respect, contempt is an offence sui generis, as it is the only offence punishable at common law by summary process. 87 Defenders of the summary process argue that courts must be able to deal with contempts promptly in order to protect the administration of justice by “limiting the supposed damage done by unchecked criticism”. 88 Proceedings for contempt are usually commenced by way of originating summons, with no committal proceeding, and evidence is taken on affidavit. 89 The fact that contempt prosecutions do not follow the usual course for the prosecution of criminal offences with its inbuilt safeguards, even though a finding of contempt can lead to a fine or imprisonment, has drawn considerable criticism. In some jurisdictions, rules of court lay down procedures by which contempt proceedings are to be governed. 90 The constitutionality of the summary procedure in the context of contempts committed against federal courts was challenged in Re Colina; Ex parte Torney. 91 In that case an alleged contemnor argued that a proceeding for a scandalising contempt which was pending in the Family Court of Australia could not be dealt with summarily, because s 80 of the Commonwealth Constitution requires that the “trial on indictment of any offence against any law of the Commonwealth shall be by jury”. The High Court rejected this argument. 92 Three judges took the view that scandalising the Family Court was not an “offence against a law of the Commonwealth” as required by s 80, 93 and all judges except Kirby J held that because the alleged contemnor had not been tried on indictment, the protection afforded by s 80 was not attracted. 94 84

85 86

87 88 89 90 91 92 93 94

Sir John Fox, “The King v Almon I” (1908) 24 Law Quarterly Review 184; Sir John Fox, “The King v Almon II” (1908) 24 Law Quarterly Review 266; Sir John Fox, “The Summary Process to Punish Contempt I” (1909) 25 Law Quarterly Review 238; Sir John Fox, “The Summary Process to Punish Contempt II” (1909) 25 Law Quarterly Review 354; W Holdsworth, History of English Law, (3rd ed, 1923), p 394. See James v Robinson (1963) 109 CLR 593 at 600-602. Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362 at 367; Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 707; Bauskis v Adams [2007] NSWCA 293. A contempt was last tried on indictment in the United Kingdom in R v Tibbits [1902] 1 KB 77. Ahnee v Director of Public Prosecutions [1999] 2 AC 294. See also Solicitor-General (NZ) v Radio Avon Ltd [1978] 1 NZLR 225 at 229. I Cram, A Virtue Less Cloistered: Courts, Speech and Constitutions (2002), p 165. By contrast, contempts in the face of the court can be dealt with immediately by the judge in whose presence they occur, without the formal institution of proceedings. See, eg, Supreme Court (General Civil Procedure) Rules 2005 (Vic), O 75. Re Colina; Ex parte Torney (1999) 200 CLR 386. The case against Torney, which was to be the first of a number of scandalising prosecutions in the Family Court, ultimately collapsed. Gleeson CJ, Gummow, Hayne JJ. The decision confirms the High Court’s historical view of s 80, namely, that the mere fact that an offence is serious does not automatically bring it within the purview of the constitutional guarantee of trial by jury. Rather,

366 [6.100]

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In some jurisdictions, the hearing of a charge of sub judice contempt is adjourned until the conclusion of the proceedings in respect of which the contempt is alleged to have been committed, for fear that the offending material might be republished in media reports of the contempt proceeding, thus adding to the possibility of unfair prejudice to the proceeding. 95 However, this practice is not invariable. 96

Sub judice contempt Object of sub judice contempt [6.110] The object of the law of sub judice contempt is to prohibit the publication of material which might prejudice a particular civil or criminal proceeding while that proceeding is pending. Such publications are regarded as contemptuous because their tendency, and sometimes their object, is to place at risk the due administration of justice with respect to a particular proceeding. 97 The requirements of the administration of justice and the ways in which it can be jeopardised by publications, are discussed below. 98 The public interest in protecting the administration of justice can conflict with the public interest in freedom of speech and freedom of the press. 99 The law of sub judice contempt seeks to strike a balance between these competing values. 100 How that balance should be struck is a matter over which opinions in a democratic society will inevitably differ. 101 As a generalisation, it can be said that in cases where the public interest in the administration of justice conflicts with the public interest in freedom of speech, the common law has traditionally favoured the former.

95 96

97 98 99 100

101

it is left to Parliament to determine whether a particular offence should be made triable on indictment. See: R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556; Kingswell v The Queen (1985) 159 CLR 264. See also: D Butler, “Scandalising Contempt Under the Family Court Act 1975 and “Institutionalised” Bias” (1999) 4(4) Media and Arts Law Review 277; D Meagher, “New Day Rising? Non-originalism, Justice Kirby and Section 80 of the Constitution” (2002) 24 Sydney Law Review 141 at 165-167. New South Wales Law Reform Commission (2000), [12.66]. This practice detracts from the argument that the summary process is justified by the need for a speedy response to a contempt. There is no settled rule of practice to this effect in Victoria (Hinch v Attorney-General (Vic) [1987] VR 721) or Queensland (R v Sun Newspapers Pty Ltd (1992) 58 A Crim R 281 at 289), although in the latter case the practice was described as a salutary one. But see Attorney-General (Qld) v WIN Television Qld Pty Ltd [2003] QSC 157 at [3]. R v Parke [1903] 2 KB 432 at 436-7. See [6.250]–[6.630]. For a more precise identification of the various interests that are protected by, or inimical to, the law of sub judice contempt see: Law Reform Commission of Western Australia, Report 93 (2003), pp 18-22. R v Pearce (1992) 7 WAR 395 at 421; Attorney-General (UK) v British Broadcasting Corporation [1981] AC 303 at 352. There are other interests that are incidentally affected by how this balance is struck, including the privacy of the accused, open justice and the commercial interests of media organisations and their proprietors: Law Reform Commission of Western Australia, Contempt by Publication, Discussion Paper (2002), pp 2-3. Prothonotary v Collins (1985) 2 NSWLR 549 at 562.

[6.110] 367

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Other means of dealing with prejudicial publicity [6.120] The law of sub judice contempt is not the only means of dealing with prejudicial publicity. Other preventative or remedial measures that might be adopted or deployed by Australian courts 102 to minimise or redress the effects of prejudicial publicity, and thereby safeguard the administration of justice, include: 103 • issuing in camera orders or non-publication orders which prohibit the publication of information about a proceeding or information that does not arise from a proceeding itself but which, if published, might amount to a sub judice contempt on the basis that it has a tendency to prejudice proceedings; 104 • adjourning proceedings until media publicity has abated; 105 • admonishing the jury to disregard publicity about the case and to focus solely on the evidence and arguments presented in the court; 106 • changing the venue of a trial to a different geographic area where the participants are not well known; • a judge may have power to examine persons selected to serve as jurors, or to authorise such persons to be questioned during the jury selection process, regarding their exposure to prejudicial pre-trial publicity and to allow a challenge for cause on the basis that a juror is not impartial; 107 • ordering a permanent stay of proceedings on the ground of irremediable prejudice to a fair trial. Although the existence of this power has been recognised by the High Court, 108 a permanent stay of proceedings will be ordered only if a court considers that there is no possibility of a fair trial in the future. Such an order would be an exceptional or singular

102

The extent to which these mechanisms can be deployed by Australian courts depends on whether they derive from the courts’ inherent or implied power or from legislative sanction.

103

These alternatives are discussed in greater depth in P Keyzer, J Johnston, G Holland, M Pearson, S Rodrick and A Wallace, Juries and Social Media, Centre for Law, Governance and Public Policy, a report commissioned by the Victorian Department of Justice on behalf of the Standing Council on Law and Justice (16 April 2013). See also R Burd and J Horan, “Protecting the Right to a Fair Trial in the Twenty-First Century – Has Trial By Jury Been Caught in the World Wide Web?” (2012) 36 Criminal Law Journal 103. See [5.190]-[5.230].

104 105

It has been observed that a judge’s power to adjourn a proceeding in order to ensure a fair trial has been “substantially attenuated by the immediate accessibility of information on the internet with an efficiency that overrides the practical obscurity of the past”: John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344 at 360. An adjournment also has serious implications for an accused person who has been refused bail and is in prison pending his or her trial.

106

Some courts have drafted a model form of direction which can be used by judges when making opening remarks to a jury in criminal cases where there has been prior media publicity: see, eg, Judicial Commission of New South Wales, Criminal Trial Courts Bench Book http://www.jc.nsw.gov.au. See, eg, R v Vollmer [1996] 1 VR 95 at 138 (judge entitled to accept unsworn word of jurors as to whether they had heard a particular broadcast); Jury Act 1977 (NSW), s 55D (judge can personally examine jurors under oath); Jury Act 1995 (Qld), s 47 (discussed in R v Ferguson; Ex parte Attorney-General (Qld) (2008) 186 A Crim R 483 at [47]). R v Glennon (1992) 173 CLR 592.

107

108

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occurrence. 109 In Dupas v The Queen the High Court held that there was nothing exceptional or singular about a trial being conducted against a background of extensive adverse pre-trial publicity, especially in notorious cases. 110 The Court took the view that the apprehended defect in Dupas’ trial, namely, unfair consequences of prejudice or prejudgment arising out of extensive adverse pre-trial publicity, was capable of being counteracted by thorough and appropriate directions to the jury by the trial judge. 111 In so holding, the Court relied on the notion that jurors will be true to their oaths and will heed directions to act only on the admissible evidence. Accordingly, the Court held that a stay was not necessary; 112 • criminalising juror research; 113 • discharging the jury; • quashing a conviction on appeal. Given the proliferation of discussion of high profile cases on social media, it is becoming quite common for appeals against convictions to be based on assertions that adverse media coverage deprived the accused of a fair trial; and • permitting accused persons to apply to have their case tried by judge alone, even if the offence is serious. 114 In jurisdictions which accord constitutional status to free speech, the circumstances in which a publication will be held to be contemptuous are narrower than in Australia. This is particularly true of the United States. Accordingly, courts in these jurisdictions place primary emphasis on these curative devices to alleviate any damage caused by prejudicial media publicity. 115 In Australia, the criminalisation of prejudicial publicity has remained the principal strategy for safeguarding the administration of justice. Indeed, it has been argued that the public interest in fair trials would not be adequately protected if direct restraints were not imposed on

109 110

111 112 113 114

115

A successful stay application was made in R v Liddy [2010] SADC 80 but not solely on the basis of prejudicial publicity. Dupas v The Queen (2010) 241 CLR 237 at 250-1. In R v Jamal (2008) 72 NSWLR 258 the New South Wales Court of Appeal noted that applications for a permanent stay had failed in the most sensational of cases, including that of Anita Cobby, Ivan Milat, Phillip Bell and Robert Long: at [16]. See also R v Ferguson; Ex parte Attorney-General (Qld) [2008] QCA 227; R v Mokbel (2009) 26 VR 618. Dupas v The Queen (2010) 241 CLR 237 at 251. A stay will also not be necessary if it is possible for the case to be tried by judge alone. See [6.800]. A number of jurisdictions give the accused this option. These measures are discussed in New South Wales Law Reform Commission (2000), [2.69]–[2.87]. See also M Chesterman, “OJ and the Dingo: How Media Publicity Relating to Criminal Cases Tried by Jury is Dealt With in Australia and America” (1997) 45 The American Journal of Comparative Law 109; M Chesterman, Freedom of Speech in Australia: A Delicate Plant (2000), Ch 6. Cram (2002), p 102. See also: Z Rich, “The Past and Future of Australian Sub Judice Contempt: A Historically Contingent Rhetoric, A Modern Age Threat, and the Lessons to be Learned From the United States” (2010) 15 Media and Arts Law Review 361 at 368. Judges in the United States have additional means at their disposal. For example, they can sequester jurors while they are deliberating.

[6.120] 369

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the media via the law of sub judice contempt. 116 As a result, Australian courts have traditionally been less preoccupied with developing and employing the aforementioned measures. 117 However, this state of affairs appears to be in the process of change, but the catalyst for the change is more pragmatic than idealistic; courts may simply be adjusting to the reality that the new media are challenging their ability to prevent the publication of prejudicial material, irrespective of whether prevention is considered to be the most effective means of protecting the administration of justice, and are thus being compelled to supplement the law of contempt with other preventative and remedial measures. 118

Elements of sub judice contempt [6.130] The actus reus of sub judice contempt is comprised of three elements: • there must be a publication of material; • the material must be published while proceedings are sub judice, that is, “under a judge”; and • the publication must have the requisite tendency to interfere with the administration of justice in those proceedings. Before discussing each of these requirements, the issue of mens rea will be examined.

Mens rea for sub judice contempt [6.140] There is no doubt that a person charged with sub judice contempt must be shown to have intended to publish the allegedly contemptuous material. 119 In the case of the media, it is simply assumed that those responsible for the publication had this intention. 120 Consequently, it is no answer to a charge of contempt that the person responsible in fact had no personal knowledge of the actual content of the publication. 121 This suggests that the

116

117 118

119

120

121

See, eg: D Anderson, “Lessons From an Impeachment” (1999) 1 UTS Law Review 63; New South Wales Law Reform Commission, Report 100 (2003), Ch 2. For a discussion of the philosophies and assumptions that underlie the various approaches to dealing with the problem of prejudicial publicity see: Cram (2002), Ch 3. Cram (2002), p 110. Rich (2010) 15 Media and Arts Law Review 361; P Keyzer, J Johnston, G Holland, M Pearson, S Rodrick and A Wallace, Juries and Social Media, Centre for Law, Governance and Public Policy, a report commissioned by the Victorian Department of Justice on behalf of the Standing Council on Law and Justice (16 April 2013). McLeod v St Aubyn [1899] AC 549 at 562; Registrar of Court of Appeal v Willesee (1985) 3 NSWLR 650 at 673; Attorney-General (NSW) v Dean (1990) 20 NSWLR 650 at 656; Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 69; Director of Public Prosecutions v Francis (2006) 95 SASR 302; [2006] SASC 211 at [50]. The persons likely to be held responsible for the publication of contemptuous material in the print and electronic media are identified in [6.70]. Persons likely to be held responsible for contemptuous publications on the internet are identified in [6.160]. St James’s Evening Post Case; Roach v Garvan (1742) 2 Atk 469; 26 ER 683; Ex parte Jones (1806) 13 Ves 237; 33 ER 283; R v The Age Company Ltd [2008] VSC 305 at [20].

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requisite intention is an intention to publish the material regardless of what it contains, rather than an intention to publish that particular material with knowledge of its content. 122 Is knowledge of the existence of pending proceedings an element of the offence? A sub judice contempt which consists of exposing a party in pending proceedings to prejudgment of the issues and merits of those proceedings can be committed only by a person who is aware of the existence of those proceedings. 123 However, it is doubtful whether a person can escape liability for other forms of sub judice contempt by showing that, at the time of publication, he or she did not know or have any reason to know of the existence of the pending proceeding. 124 It is clear that a person can commit a sub judice contempt even if, at the time of the publication, that person mistakenly believed that proceedings had been completed. 125 Australian authority is firmly in favour of the view that an intention to interfere with the administration of justice is not a necessary ingredient of sub judice contempt. 126 The ultimate issue is whether the publication has an inherent tendency to interfere with the course of justice, and a publication can have such a tendency, whether or not the interference is intentional. The fact that a person can be guilty of sub judice contempt in the absence of an intention to interfere with the administration of justice is inconsistent with the strong presumption of the common law that mens rea, or a guilty mind, is an element of criminal offences. 127 It can produce unjust outcomes. 128 It also represents a significant infringement 122

123 124

125

126

127 128

The United Kingdom Law Commission suggested that the deciding factor is whether the person in question had a duty to make themselves aware of the content, and that this might turn on whether the person was a professional publisher or a layperson: Contempt of Court Consultation Paper No 209 (2012) at [3.39]-[3.40]. Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) 5 BR 10 at 28. In R v Odhams Press Ltd [1957] 1 QB 73 it was held that it is no defence to a charge of contempt that the accused mistakenly believed that no proceedings had been instituted. By contrast, in Ex parte Bread Manufacturers Ltd; Re Truth & Sportsman Ltd [1937] 37 SR (NSW) 242, Jordan CJ held that it is “a good answer (to a charge of contempt) if it is proved to the satisfaction of the court that the party alleged to be in contempt was ignorant of the litigation and at the time of the publication had no reason to suppose that litigation existed”: at 250. See also John Fairfax & Sons Ltd v McRae (1955) 93 CLR 351 at 359. However, subsequent Australian dicta suggests that Odhams Press is correct, and that lack of knowledge of the existence of pending proceedings is not a defence to a charge of sub judice contempt: Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) 5 BR 10 at 28; R v Pearce (1992) 7 WAR 395 at 429. In Attorney-General (NSW) v Radio 2UE Sydney Pty Ltd [1997] NSWSC 487; [1998] NSWSC 28, radio station 2UE and its presenter John Laws were found guilty of contempt notwithstanding that at the time the contemptuous material was broadcast, Laws was acting under a mistaken belief that the trial had concluded and that all that remained was for the accused to be sentenced by the judge. John Fairfax & Sons Ltd v McRae (1955) 93 CLR 351 at 371; Lane v Registrar of the Supreme Court of New South Wales (1981) 148 CLR 245 at 258; Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 at 56, 95, 133; Registrar of Court of Appeal v Willesee (1985) 3 NSWLR 650 at 673-676; Attorney-General (SA) v Nationwide News Pty Ltd (1986) 43 SASR 374; Director of Public Prosecutions v Wran (1987) 86 FLR 92 at 100-101; Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 46-47, 69-70, 85; Attorney-General (NSW) v Dean (1990) 20 NSWLR 650 at 655; R v West Australian Newspaper Holdings Ltd; Ex parte Director of Public Prosecutions (WA) (1996) 16 WAR 518 at 533. He Kaw Teh v The Queen (1985) 157 CLR 523. For example, a media organisation can be guilty of a sub judice contempt even if it has a system of checks in place, or has received legal advice that a publication is not contemptuous, or has been given assurances from the police or an accused person’s lawyer that certain matters, such as identity, will not be in issue: New South Wales Law Reform Commission (2000), [5.3].

[6.140] 371

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on freedom of expression, since the only option available to a publisher who wants to be certain of avoiding prosecution is not to publish the material. 129 It appears that this departure from the basic principles that govern the criminal law is an anomaly explicable only on historical grounds. 130 The New South Wales Law Reform Commission recommended that the current position of absolute liability be modified by the introduction an innocent publication defence and an innocent dissemination defence. 131 The perceived advantage of such a defence is that it would introduce an element of fault into the offence without raising the barriers to a successful prosecution by requiring the prosecution to prove intention or negligence. Although an intention to interfere is not a necessary element of this type of sub judice contempt, it has always been regarded by courts as relevant to the determination of liability, 132 to the application of the ground of exoneration known as the Bread Manufacturers principle, 133 and to the question of the appropriate punishment if a contempt has been established. 134 One issue about which there is considerable disagreement is the significance to be attributed to an intention to interfere with the administration of justice in pending proceedings where such an intention is found to be present. Some authorities suggest that in these circumstances the publication will constitute a contempt, irrespective of whether it has a real and definite tendency to interfere with the administration of justice in those proceedings. 135 Two possible justifications for this viewpoint have been proffered. 136 The first is that a person who acts with intention is admitting a belief that he or she has a reasonable chance of success and this admission is used as evidence of the fact. The second is that such cases involve an inchoate offence in the nature of attempt, where intent plus preparatory acts are sufficient to sustain the charge.

129 130

131 132 133 134 135

136

New South Wales Law Reform Commission (2000), [5.19]. Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 709. In Registrar of Court of Appeal v Willesee (1985) 3 NSWLR 650 at 653, Kirby P advocated the restoration of ordinary criminal law principles to contempt law, arguing that the lack of a mens rea requirement is inappropriate, particularly as contempt charges are dealt with summarily and the punishments are at large. For further discussion of this issue see Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 741. New South Wales Law Reform Commission, Report 100 (2003), Ch 5. John Fairfax & Sons Ltd v McRae (1955) 93 CLR 351 at 371; Hinch v Attorney-General (Victoria) (1987) 164 CLR 15 at 69; Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 741. The Bread Manufacturers principle is outlined in [6.710]-[6.750]. Punishments are discussed in [6.950]-[6.960]. Smith v Lakeman (1856) 26 LJ (NS) Ch 305; Bell v Stewart (1920) 28 CLR 419 at 429-430; Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362 at 369; Registrar of Supreme Court v McPherson [1980] 1 NSWLR 688 at 697; Registrar, Court of Appeal v Collins [1982] 1 NSWLR 682 at 691; Harkianakis v Skalkos (1997) 42 NSWLR 22 at 28; Solicitor-General v Smith [2004] 2 NZLR 540 at [90]. Harkianakis v Skalkos (1997) 42 NSWLR 22 at 28; Melbourne University Student Union Inc (In Liq) v Ray [2006] VSC 205 at [14].

372 [6.140]

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Other authorities take the view that there is no separate offence of intentional sub judice contempt, and that the publication in question must always have the requisite tendency. 137 Judges inclined to this view maintain that to divorce intention from conduct is an unacceptable departure from the criminal law which requires both a criminal act and a criminal intention. 138 Since it is uncommon for a contempt charge against a media organisation to be based on this ground, resolution of this issue will not have a great practical impact on the media.

Publication of material What constitutes “publication”? [6.150] In order to commit a sub judice contempt, contemptuous material must be published. 139 According to Lowe and Sufrin, material is published if it is “made available to the general public or at any rate a section of the public which is likely to comprise those having a connection with the case”. 140 So far as the media are concerned, material which is broadcast on radio or television, or printed in a newspaper or magazine is clearly published for the purposes of the law of contempt. 141 The same is true of material that is uploaded onto the internet and which is capable of being accessed by anyone who visits the website. Social media sites such as Facebook posts, tweets, pictures uploaded on Instagram, videos uploaded on Youtube and so forth are also forms of publication, but some have privacy settings that enable users to restrict who may access their communications. 142 Thus, the size of the audience to whom contemptuous material is disseminated may vary greatly. However, provided the audience is large enough, there is no reason in principle why information distributed via social media should not be regarded as having been published to a section of the public for the purposes of contempt law. Australian cases indicate that a person can be involved in the publication of material even if that person does not directly put the material before the public. This will be the case where a person disseminates material to others who are likely to put the material before the public or a section of the public likely to comprise those having a connection with the case. This principle is of relevance to the media in two ways. The first concerns a person who makes a statement to a journalist or news reporter. Ordinarily, a private communication to an individual

137

138 139 140

141 142

Prothonotary v Collins [1985] 2 NSWLR 549 at 550-555 per Kirby P, 569-571 per McHugh JA; Re Coroner’s Court of Western Australia; Ex parte Porteous (2002) 26 WAR 483; [2002] WASCA 144 per Steytler J. Those who adopt this view often point out that a person who has an intention to interfere with the administration of justice may be charged with the offence of perverting or attempting to pervert the course of justice. Prothonotary v Collins [1985] 2 NSWLR 549 at 569-570 per Kirby P. R v Griffiths; Ex parte Attorney-General [1957] 2 QB 192 at 202. Lowe and Sufrin (3rd ed, 1996), p 85. See also Australian Law Reform Commission, Contempt, Report 35 (1987) at [249], where it is noted that narrower instances of dissemination have been held to amount to publication in Australia. Australian Law Reform Commission, Contempt, Report 35 (1987) at [249]. Persons in the chain of publication who can be held responsible for the publication of contemptuous material are listed and described in [6.70]. United Kingdom Law Commission, Contempt of Court Consultation Paper No 209 (2012) at [3.28].

[6.150] 373

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is not regarded as a publication for the purposes of the law of contempt. 143 However, a statement made to a member of the media does not fall into this category, as it is made to someone who is likely in the ordinary course to broadcast or publish it. 144 Thus remarks made by the former Premier of New South Wales Mr Wran in an interview with radio reporters constituted a contempt at the time they were uttered, even before the interview went to air. 145 Mr Wran was unable to escape liability by asserting that the broadcaster had an independent responsibility for what it broadcast. Publication is also an issue in relation to the on-supply of information by one media organisation to another media organisation. In Attorney-General (NSW) v TCN Channel Nine Pty Ltd, 146 a television station supplied contemptuous material to the licensee and operator of another television station under a standing commercial arrangement. The court held that the station supplying the information was liable for contempt in these circumstances, as the material was supplied with the knowledge that it was likely to the point of near certainty that it would be broadcast to the public in the form in which it was supplied. The court held that the offence was complete when the material was on-supplied. It was no answer to the charge that the licensee to whom the material was supplied had an independent responsibility for what it broadcast and was under no obligation to broadcast the matter. For its part, the media organisation to which the material is supplied is also under a duty to uphold the integrity of the justice system by avoiding contempt, and cannot complain that it was a mere conduit in the transmission of the program. 147 It remains to be seen how courts will respond where material that is initially posted on a social media site to a select few is re-tweeted or shared by others to an audience that is large enough to constitute publication to a section of the public. It is suggested that the initial poster would not be guilty of contempt because the likelihood that the material would be shared to a wider audience is not as great as in the interview scenario discussed in the Wran case or where one media organisation on-supplies material to another.

Publication and the internet [6.160] The issues of publication and liability become very complex in respect of prejudicial material which is placed on the internet and the law of contempt is still in the process of addressing them. Aside from the issue of “what is publication”’, discussed in [6.150], four main issues arise: who should be regarded as having “published” contemptuous information on the

143 144 145

Australian Law Reform Commission, Contempt, Report 35 (1987) at [249]. Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368 at 378-379. It is irrelevant whether the media organisation to whom the information is given in fact publishes it to a wider audience. Director of Public Prosecutions v Wran (1987) 86 FLR 92. See also Attorney-General (NSW) v Dean (1990) 20 NSWLR 650, where a policeman was found guilty of contempt for statements made to the media in a press conference, and R v Lovitt [2003] QSC 279 where a barrister was found guilty of contempt for statements made in the hearing of reporters on the basis that he knew that publication of his statements in the media was a distinct possibility but was indifferent to that occurrence.

146 147

Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368. Attorney-General (Qld) v WIN Television Qld Pty Ltd [2003] QSC 157 at [41].

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internet, the place of publication, enforcement, and the time of publication. 148 These questions have been considered by courts predominantly in the context of defamation actions. Although similar conclusions may be reached in relation to prosecutions for contempt, comparisons should be made with caution since, as the United Kingdom Law Commission has rightly pointed out, defamation and contempt are two separate causes of action, the former civil, the latter criminal. 149 Regarding liability, it is clear that persons who upload contemptuous information to the internet can be held responsible provided they can be traced. 150 The circumstances in which liability can be imposed on internet service providers (ISPs) and internet content hosts (ICHs) for contemptuous material that is published on an internet site are yet to be precisely defined. 151 Due to the paucity of contempt cases dealing with intermediary liability, it is necessary to draw on cases that have dealt with this issue in other contexts, most notably defamation. Defamation cases countenance two forms of publication. The first is positive publication, which encompasses anyone who has been actively involved in the dissemination of the defamatory information, including booksellers, libraries and newsagents. Because this concept is capable of catching persons who have exercised little or no control over the defamatory content, defamation law accords to such publishers a defence of innocent dissemination, both at common law and under the uniform defamation legislation. 152 The other form of publication is more passive and is often referred to as publication by acquiescence. In this case, the person is not regarded as a publisher unless and until the person has been informed that defamatory material has appeared on a medium or property over which they have control, such as a bus shelter or a notice board, and has failed to remove it within a reasonable time. 153 The potential for this concept to apply to internet intermediaries is self-evident. For example, in Godfrey v Demon Internet Service 154 an ISP was held liable for defamation for failing to remove defamatory postings from its servers after the defamed person had requested it to do so. The essence of the “publication” from the company’s point of view was that it had become aware of the postings but had failed to remove them. By contrast, in Bunt v Tilley 155 it was held that an ISP which merely provided internet access as a passive medium of communication was not a publisher for the purposes of defamation. 148 149 150 151

These issues are also discussed in Justice V Bell, “How to Preserve the Integrity of Jury Trials in a Mass Media Age” (2005) 7(3) The Judicial Review 311. United Kingdom Law Commission, Contempt of Court A Consultation Paper (2012) at [3.61]. Of course such persons will be held to have published only if the comments are accessible by the public or a general section of the public likely to comprise those having a connection with the case. It should be noted that if knowledge of the actual content of the published material and/or of the existence of a pending proceeding is necessary, then ISPs and ICHs may be able to escape liability on the basis that they lack the requisite mens rea. However, it is likely that this is not the case.

152 153

See [3.1250]–[3.1270]. Byrne v Deane [1937] 1 KB 818; Urbanchich v Drummoyne Municipal Council [1991] Aust Torts Reports 81-127. See [3.560].

154 155

Godfrey v Demon Internet Service [2001] QB 201. Bunt v Tilley [2006] EWHC 407 (QB); [2007] 1 WLR 1243.

[6.160] 375

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In the contempt context, it has already been explained that “publication” appears to encompass what has been described as “positive publication”, but without the provision of a defence of innocent dissemination. However, it would seem that a substantial degree of protection is conferred on ISPs and ICHs by cl 91 of Sch 5 of the Broadcasting Services Act 1992 (Cth). That clause provides that a law of a State or Territory or a rule of common law or equity has no effect to the extent to which it would subject an ISP or ICH to civil or criminal liability for hosting or carrying content where it was not aware of its nature, or require an ISP or ICH to monitor, inquire about or keep records of content which it hosts or carries. Although this provision appears in a Schedule dealing with offensive online content, 156 there is a wide consensus that it should not be confined to this context, but should be interpreted broadly to apply to a range of State-based content laws, including defamation and sub judice contempt. 157 The concept of “passive publication” has been applied in the contempt context. In Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd (No 2) 158 a company was held to have become the publisher of misleading and deceptive material that was posted on its Facebook wall and Twitter page by third parties after it became aware of the posts and failed to remove them. Since the publication of this material amounted to a breach of undertakings previously given by the company to the court, the company was held liable for a civil contempt. The liability of search engines is in a state of flux. In Metropolitan International Schools Ltd v Designtechnica Corporation, the England and Wales High Court held that a search engine such as Google is not a publisher of material that appears on websites displayed in its search results nor of the content of the snippets that appear with the search result. 159 Rather, it is a mere facilitator. The basis for the decision was that the search results are generated by an automated search engine system without any direct human input. A different view was taken in Trkulja v Google Inc LLC (No 5), 160 where Beach J in the Victorian Supreme Court held that the jury were entitled to find that Google is a publisher of its search results, both before and after it receives notice that they contain defamatory material. As regards the position before notification, Beach J held that the jury were entitled to take the view that Google intends to publish anything that its automated system produces because that is what it is designed to do when a search request is typed into its system. However, in the defamation context, prior to being notified, Google may be entitled to a defence of innocent dissemination. Given that this defence is not known to contempt law, search engines accused of publishing contemptuous material would need to rely on cl 91 to escape liability. In order to amount to a sub judice contempt, the prejudicial material must be published in the jurisdiction in which the proceeding is pending. Ascertaining the place of publication is 156 157

158 159 160

The responsibility of ISPs and ICHs in relation to offensive online content is discussed in [9.710]–[9.770]. See, for example, J Eisenberg, “Safely Out of Sight: The Impact of the New Online Content Legislation on Defamation Law” (2000) 23 University of New South Wales Law Journal 232; Fairfax Digital Australia and New Zealand Ltd v Ibrahim (2012) 83 NSWLR 52. Competition and Consumer Commission v Allergy Pathway Pty Ltd (No 2) (2011) 192 FCR 34; [2011] FCA 74. Metropolitan International Schools Ltd v Designtechnica Corporation [2009] EWHC 1765. Trkulja v Google Inc LLC (No 5) [2012] VSC 533. But see also Rana v Google Australia Pty Ltd [2013] FCA 60; Bleyer v Google Inc LLC (2014) 311 ALR 529.

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important where material is placed on an interstate or overseas website, but is accessible by persons in the jurisdiction where the pending proceeding is being tried. 161 In Dow Jones & Co Inc v Gutnick 162 the High Court held that publication is taken to occur where the defamatory matter is downloaded (that is, where it is accessed), not where it is uploaded. 163 The idea that material is published each and every time it is downloaded is known as the “multiple publication rule”. 164 However, the Gutnick case was concerned with the tort of defamation, whereas contempt is a crime. In order to determine whether a court’s criminal jurisdiction is attracted, it is necessary to apply the jurisdictional rules that determine where a crime is taken to have been committed. 165 Even if prejudicial material is regarded as published in the jurisdiction in which the proceeding is pending, thus attracting the jurisdiction of the court, bringing to trial a person who is responsible for the publication is problematic if he or she does not reside or have a place of business in that jurisdiction, as is enforcing any judgment obtained against that person. In defamation law, the multiple publication rule has the potential to expose a publisher to “ongoing liability … in relation to material that is accessed repeatedly over a long period of time”. 166 In the context of sub judice contempt, ascertaining the time of publication is also critical, as material that is published before a proceeding becomes sub judice, or after it ceases to be sub judice, cannot be held to be contemptuous. The timing issue becomes problematic in respect of material which is put on a website prior to proceedings becoming sub judice, but which remains on the site after proceedings have begun. Is publication to be regarded as a single act which occurred only when the material was initially placed on the website and made available to the public or a section of the public? If so, the moment of publication has passed and material that continues to be accessible on a site must be regarded as part of the contents of an archive of material that was previously published. Alternatively, should the material be regarded as being in a continual state of being published from day to day while it remains on the site, irrespective of whether anyone visited the site? In 161

A similar situation can arise with television programs. For a discussion of some of the issues see: C Walker, “Fundamental Rights, Fair Trials and the New Audio Visual Sector” (1996) 59 Modern Law Review 517.

162 163

Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575. This can create problems if publication of the material does not infringe the law of the jurisdiction in which it was uploaded, since it dramatically increases the scope for conflict between national systems: R Garnett, “Regulating Foreign-based Internet Content: A Jurisdictional Perspective” (2000) 23 University of New South Wales Law Journal 227. The multiple publication rule is discussed in [3.480]. It has been replaced in the United Kingdom with a single publication rule: Defamation Act 2013 (UK), s 8. For the background to this change see: Ministry of Justice, Defamation and the Internet: the Multiple Publication Rule Consultation Paper (2009); House of Commons Culture Media and Sport Select Committee, Press Standards, Privacy and Libel (2009-10); Ministry of Justice, Libel Working Group Report (2010). It is not being suggested that the rules pertaining to a court’s criminal jurisdiction would necessarily produce a different result than that reached in the Gutnick case. However, it is interesting that these rules are not referred to by the Law Reform Commission of New South Wales when discussing the place of publication in the context of internet publications. Compare United Kingdom Law Commission, Contempt of Court Consultation Paper No 209 (2012) at [3.87]-[3.95]. V Scott and GJ Cooper, “Liability for Internet Archives: the Risks” (2010) 13 Internet Law Bulletin 197 at 197.

164

165

166

[6.160] 377

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Her Majesty’s Advocate v William Beggs Opinion No 2 of Lord Osborne the latter view was adopted, meaning that as long as the material is accessible to the public it should be regarded as published throughout the period of its accessibility. 167 Adopting the latter approach to publication recognises that criminal behaviour can consist of a failure to take action. 168 It effectively obliges the publisher to make continual checks on the status of a potential legal proceeding, and to remove any offending material once proceedings become sub judice. This places an extremely onerous burden on newspapers who maintain online archives. 169 It also prevents members of the public who are not jurors from accessing removed material which may have social, historic or research value. 170 In News Digital Media Pty Ltd v Mokbel 171 the Victorian Court of Appeal questioned whether Lord Osborne’s view was consistent with the multiple publication rule, which focuses on whether material is actually accessed, not on whether it is simply available on the internet to be accessed. However, the Court of Appeal ultimately agreed with the view of Lord Osborne, and in so doing drew a distinction between defamation and contempt regarding the moment of publication: In the case where the claim is for damages for defamation, the publication occurs when the material comes to the attention of the visitor to the site in whose eyes the plaintiff’s reputation suffers damage. In the case of contempt, where the concern is the risk to the legal process, this occurs when the material is made available to the juror or potential juror. Accordingly, we would accept the analysis of Lord Osborne that the contempt occurs when and where the material is available to such a person, whether it be shown that the person accessed it or not. Contempt occurs when the court process is exposed to risk, irrespective of whether the risk becomes actuality. This is consistent with the approach of the Court to allegations of contempt by publication of prejudicial material in the print or radio media. 172

The issue was subsequently considered by the New South Wales Court of Appeal in Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim. 173 The Court affirmed that publication on the internet is a continuing phenomenon, but may have diverged from the view taken in News

167

168 169

170 171 172

173

Her Majesty’s Advocate v William Beggs Opinion No 2 of Lord Osborne [2002] SLT 139 at [22]. The court did not find the material in question to be contemptuous, but this was because the court found it unlikely that the material would come to the attention of a juror, having regard to the manner in which it was made available. Her Majesty’s Advocate v William Beggs Opinion No 2 of Lord Osborne [2002] SLT 139 at [6]. The opinion is criticised in J Elder, “Pre-trial Publicity Outrage” (2002) 15 ELaw 37. See also United Kingdom Law Commission, Defamation and the Internet: A Preliminary Investigation (December 2002), [5.1][5.29]. However, the opinion was recently applied by Fulford J regarding two online articles on the Mail Online archive: R v Harwood [2012] EW Misc 27 (CC). United Kingdom Law Commission, Contempt of Court (1): Juror Misconduct and Internet Publications, Law Com No 340 (2013) at [2.107]. News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248. News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248 at 265. See also The Queen v Hinch [2013] VSC 520 at [53]-[54]; Tate v Duncan-Strelec [2014] NSWSC 1125 at [145]. Although information is regarded as published as long as it remains accessible, it does not automatically follow that it has the requisite tendency to prejudice and is therefore contemptuous. One important consideration in this respect is the ease with which jurors can locate the information. Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52.

378 [6.160]

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Digital Media Pty Ltd v Mokbel in so far as it appeared to approve the definition of publication adopted by the High Court in the Gutnick case, which requires the information to be actually accessed, not merely available for access.

When are proceedings sub judice? [6.170] In order for the law of sub judice contempt to be activated, proceedings must be sub judice. In Australia, proceedings are “sub judice” or “pending” if curial procedures have been commenced and are not completed. 174 Once proceedings are no longer pending, no comment made about the case can amount to a sub judice contempt.

Criminal proceedings [6.180] Criminal proceedings have commenced if a person has been arrested upon warrant, 175 arrested and charged, 176 or arrested with a view to being charged. 177 The significance of an arrest is that it marks the time at which a court becomes seized of the case, because the arrested person must be taken before a court as soon as practicable so that he or she can be dealt with according to law. 178 It has been suggested that the issue of a summons to appear triggers the sub judice period, since, like an arrest, it initiates the criminal process against a person. 179 Possibly, proceedings are also pending if a warrant has been issued for an arrest, or if an information or complaint has been laid, or notice has been given of an intention to prefer a presentment, 180 or extradition proceedings have been commenced in respect of a wanted person who is not in the jurisdiction. 181 Criminal proceedings remain on foot until the charges have been dropped, the accused has been acquitted, the time for lodging an appeal has elapsed, or all possible appeals have been heard. This means that a proceeding remains sub judice after a hung jury, 182 between the verdict and the sentence, after the sentence has been passed and before any notice of appeal must be lodged, 183 during the conduct of any appellate proceedings, and before or during any retrial which is ordered on appeal. 184 However, except where a re-trial has been ordered, the impact of sub judice contempt on these proceedings is slight. Where an appellate 174 175 176 177 178 179 180 181 182 183

184

James v Robinson (1963) 109 CLR 593 at 615. Stirling v Associated Newspapers Ltd [1960] Sc LT 5; R v Clarke; Ex parte Crippen (1910) 103 LT 636. Packer v Peacock (1912) 13 CLR 577 at 586; James v Robinson (1963) 109 CLR 593 at 606; Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368 at 374-375. James v Robinson (1963) 109 CLR 593 at 615. R v Zorad (1990) 19 NSWLR 91 at 98. New South Wales Law Reform Commission (2000), [7.9]. S Walker, The Law of Journalism in Australia (1989), p 41 and the cases referred to therein. New South Wales Law Reform Commission (2000), [7.10]-[7.22] and the cases referred to therein. See also: R Duncan, “Time and Prejudice” (1997) 16(4) Communications Law Bulletin 4. Attorney-General (Qld) v WIN Television Qld Pty Ltd [2003] QSC 157. Delbert-Evans v Davies (1945) 2 All ER 167; Ex parte Attorney-General; Re Truth & Sportsman Ltd [1961] SR (NSW) 484 (newspaper articles commenting on the leniency of two sentences held to be a contempt of court because the time for lodging an appeal had not expired). See New South Wales Law Reform Commission (2003), [7.46]-[7.71].

[6.180] 379

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court has ordered a new trial, the stricter restraints applicable to jury trials will apply again. In this case, a contempt may be committed even though there has not yet been a new indictment and the new trial has not commenced. 185 In R v Herald and Weekly Times Ltd 186 an allegedly contemptuous article was published the day after a Magistrate ruled that there was insufficient evidence to commit Bandali Debs for trial for the murder of Kristy Harty. Ordinarily, this ruling would mean that the proceedings against Debs had been completed. However, two hours after the Magistrate made this ruling, the DPP announced that he would use his power to directly present the accused for trial in the Supreme Court and issued a press release to that effect. The Herald and Weekly Times argued that when the article was published the next day, no curial proceedings were pending as no formal steps had been taken to re-set the proceeding in motion. The Court disagreed, holding that in a real sense the criminal law had been set in motion. First, although the accused was not arrested after the DPP’s announcement, he would have been arrested had he not already been in custody serving a prison sentence for two other murders. Moreover, the fact that the DPP had plainly decided and publicly stated that he intended to serve a presentment on Debs is actually a clearer situation than an arrest, because an arrest does not render it inevitable that the accused will be presented for trial.

Civil proceedings [6.190] Civil proceedings commence when a writ, statement of claim or other initiating process has been issued, and remain pending at least until the case has been decided. Whether the proceedings remain pending until the time for lodging an appeal has expired or until all appeals have been completed is unclear. In Ex parte Dawson: Re Australian Consolidated Press Ltd, 187 a decision of the Full Court of the Supreme Court of New South Wales, Street CJ held that, in contradistinction to criminal proceedings, civil proceedings end after judgment has been delivered, even if the time for lodging an appeal has not yet elapsed. In that case, an appeal had not been instituted at the time the allegedly contemptuous article was published. Whether Street CJ would have reached the same decision had an appeal in fact been lodged is unclear. If so, his judgment is authority for the proposition that civil proceedings cease to be pending after judgment at first instance has been delivered, regardless of what transpires in relation to appeals. If not, the judgment temporarily suspends the sub judice period between the judgment and the lodging of an appeal. The majority view is difficult to decipher, as Owen J did not consider the point and Herron J expressed agreement with both Street and Owen JJ. Some have argued that there is no compelling reason for applying different rules to civil proceedings than those which apply to criminal proceedings, as courts hearing appeals from civil trials usually have power to draw inferences of fact, grant a new trial and receive further 185

Director of Public Prosecutions v Wran (1987) 86 FLR 92 at 101.

186 187

R v Herald and Weekly Times Ltd (2007) 19 VR 248; [2007] VSC 482. Ex parte Dawson: Re Australian Consolidated Press Ltd [1961] SR (NSW) 573.

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evidence on the hearing of an appeal in certain cases. 188 Others maintain that the sub judice rule should cease to apply once a hearing at first instance has concluded, and should revive only if a retrial is ordered. 189

Imminent proceedings [6.200] In James v Robinson, 190 the High Court was required to consider whether it is sufficient for the purposes of sub judice contempt that proceedings are “imminent”. 191 The case concerned the publication of prejudicial matter in the Perth Sunday Times regarding a man being sought by the police in connection with two killings. At the time the material was published, the man was still at large and had neither been arrested or charged. The court held that a publication can amount to a sub judice contempt only if proceedings are pending at the time the offending material is published. Whilst not denying that it is possible to “poison the fountain of justice even before it begins to flow”, 192 the High Court held that the fact that proceedings are imminent is not sufficient to activate the law of contempt. The basis of the court’s decision lies in the fact that the essence of contempt consists of interference with the administration of justice by the courts. There can be no interference with a non-existent proceeding. The court also expressed concern that the concept of imminence fails to provide a precise and certain test for determining what is or is not a contempt of court. The effect of the decision is that the media are not constrained by the law of sub judice contempt during a siege or when a manhunt is in progress (unless, perhaps, a warrant has been issued for the wanted person’s arrest), or when a suspect who has not been arrested or charged is being questioned by the police. 193

Inactive proceedings [6.210] In Attorney-General v Times Newspapers Ltd 194 the House of Lords had to consider whether civil litigation had become dormant, and, if so, whether it was still capable of attracting the protection of the law of sub judice contempt. 195 The facts of the case are set out in [6.510]. For present purposes it will suffice to state that a number of actions had been commenced against a defendant. These actions had not been pursued in the courts for a 188 189 190 191 192 193

194 195

R Plehwe, “Contemptuous Comment After the Judgment: When is a Cause ’Dead and Ended’?” (1964) 2 University of Tasmania Law Review 71 at 73-74. New South Wales Law Reform Commission (2003), Recommendation 18. James v Robinson (1963) 109 CLR 593. The fact that proceedings are imminent is sufficient to activate the law of sub judice contempt under the English common law. This expression is taken from R v Parke [1903] 2 KB 432 at 438. Material published before the commencement of the sub judice period can nevertheless put at risk an individual’s right to a fair trial and can be taken into account by a court in deciding whether to order a stay of proceedings, discharge the jury, overturn a conviction etc. There is also the possibility that the material might become contemptuous if it is placed on the internet and remains there after the sub judice period has commenced: see [6.160]. Attorney-General v Times Newspapers Ltd [1974] AC 273. A finding that the proceedings had become dormant had been made by the Court of Appeal: Attorney-General v Times Newspapers Ltd [1973] QB 710.

[6.210] 381

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number of years, but active negotiations for a settlement had been going on during that time. The House of Lords unanimously held that because negotiations for a settlement were continuing, the proceedings could not be regarded as dormant. Lord Diplock stated that parties to litigation are entitled to the same freedom from interference in negotiating the settlement of a civil action as they are from interference in the trial of it, and that to suspend the rights of parties to a remedy for contempt so long as negotiations for a settlement are continuing would have the effect of discouraging settlements. 196 Notwithstanding their conclusion on the facts, the House of Lords seemed prepared to entertain the view that it is possible for civil litigation to become dormant to the point that it is no longer pending.

Tendency to interfere with the administration of justice The requisite strength of the tendency [6.220] The fact that proceedings are pending does not mean that the media are prohibited from publishing any information about them. It simply means that the media become subject to the constraints imposed by the law of contempt. The nature of those constraints will now be considered. Courts have repeatedly stated that in dealing with allegations of contempt, they will proceed with the restraint that is the hallmark of the criminal law and will refrain from an excessive application of the contempt power. 197 Aside from the fact that contempt is a criminal offence, this cautious approach can be attributed to the anomalous nature of the summary procedure and the fact that the punishments are at large. 198 Moreover, courts are conscious of the fact that each finding of contempt correspondingly restricts freedom of speech, and are loath to unduly repress discussion of matters of legitimate public interest and concern. For these reasons, a court will find a publication to be contemptuous only if it is satisfied beyond reasonable doubt that the publication has a tendency to interfere with the administration of justice. The burden of proof rests with the prosecution. The formulation of the requisite strength of the tendency to interfere varies between the cases. Some cases stress the need for the publication to be “likely” or “calculated” to interfere with the administration of justice. 199 More recent Australian cases speak of the need for the publication to have “a real or clear tendency, as a matter of practical reality, to interfere with the administration of justice” in a particular case. 200 The reference to “practical reality” means that the nature and circumstances of the publication are such that it could be plainly discerned that there is a real

196 197

Attorney-General v Times Newspapers Ltd [1974] AC 273 at 311. John Fairfax & Sons Ltd v McRae (1955) 93 CLR 351 at 370; Lewis v Judge Ogden (1984) 153 CLR 682 at 693.

198 199

Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362 at 367. Davis v Baillie [1946] VLR 486 at 492; R v Scott & Downland Publications Ltd [1972] VR 663 at 672; R v David Syme & Co Ltd [1982] VR 173 at 177; Johns v Australian Securities Commission (1992) 35 FCR 16 at 39. Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 697; Director of Public Prosecutions v Wran (1987) 86 FLR 92 at 101; Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990)

200

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or definite possibility that it may prejudice the administration of justice. 201 A remote or theoretical possibility of influence or a mere apprehension of injustice will not suffice. 202 Some judges have avoided using the concept of tendency, preferring a test based on “a real or substantial risk of prejudice or interference”. 203 Perhaps nothing turns on these differences in wording. 204 However, some regard a test based on “substantial risk” as imposing a higher threshold of liability, contending that it requires the risk of prejudice to be serious, considerable and real, whereas a test based on tendency requires only a real and definite possibility of prejudice. 205 If this is correct, a test based on substantial risk will allow more scope for freedom of expression than a test based on tendency.

Propositions about the operation of the tendency test [6.230] A number of propositions can be made concerning the operation of the test of liability. The first is that courts look at the inherent nature or tendency of a publication, not its effect in the specific circumstances. The nature of the publication must be such that prejudice might result; it need not have actually resulted. Accordingly, there is no inquiry into the actual or even probable force of the publication upon the proceedings or the participants. 206 Although not concerned with the actual effect of a publication, courts do accept that trials can be prejudiced by contemptuous publications. Accordingly, it is open to an accused to seek to have the jury discharged, or a conviction set aside, or a trial permanently stayed because of the impact of prejudicial publicity. 207 However, the fact that a judge has discharged a jury or stayed a trial due to such publicity does not necessarily mean that the publicity must have

20 NSWLR 368 at 379; Attorney-General (NSW) v Dean (1990) 20 NSWLR 650 at 657; R v Glennon (1992) 173 CLR 592 at 605; Attorney-General (NSW) v Time Inc Magazine Co Pty Ltd (unreported, NSW Court of Appeal, Gleeson CJ, Sheller and Cole JJA, 15 September 1994). 201 202

Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368 at 379. Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 at 56, 66.

203

Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 28 per Mason CJ. “Substantial risk” is the measure of liability adopted in the Contempt of Court Act 1981 (UK), s 2(2). See also: Nationwide News Pty Ltd v Farquharson (2010) 28 VR 473 at 474. Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 28 per Mason CJ; R v West Australian Newspaper Holdings Ltd; Ex parte Director of Public Prosecutions (WA) (1996) 16 WAR 518 at 533; Re Coroner’s Court of Western Australia; Ex parte Porteous (2002) 26 WAR 483; [2002] WASCA 144 at [64]; Melbourne University Student Union Inc (In Liq) v Ray [2006] VSC 205 at [14]. New South Wales Law Reform Commission (2003), [4.3]-[4.39]; Law Reform Commission of Western Australia, Report on Review of the Law of Contempt, Report 93 (2003), pp 28-29. Bell v Stewart (1920) 28 CLR 419 at 432; Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362 at 368; Director of Public Prosecutions v Wran (1987) 86 FLR 92 at 101; R v Pearce (1992) 7 WAR 395 at 420-421; Attorney-General (NSW) v Time Inc Magazine Co Pty Ltd (unreported, NSW Court of Appeal, Gleeson CJ, Sheller and Cole JJA, 15 September 1994). It has been suggested that a finding of contempt will be made if the prosecution can prove that the impugned conduct has actually interfered with the administration of justice in the case: Director of Public Prosecutions v Francis (2006) 95 SASR 302; [2006] SASC 211 at [56]. However, this would be very difficult to prove.

204

205 206

207

R v Dyson (1944) 29 Cr App R 104; R v McCann (1991) 92 Cr App R 239; R v McLachlan [2000] VSC 215; R v K (2003) 59 NSWLR 431; [2003] NSWCCA 406; R v Long (2003) 138 A Crim R 103; R v Tayyab Sheikh [2004] NSWCCA 38; R v Crowther-Wilkinson [2004] NSWCCA 249.

[6.230] 383

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been contemptuous. 208 Conversely, the fact that pre-trial publicity has been found to be contemptuous does not automatically mean that the accused did not receive a fair trial or that there was a miscarriage of justice. 209 Whether publicity before or during a trial amounts to a contempt and whether it renders a trial unfair are separate and independent issues. 210 In deciding whether to abort a trial, the judge is concerned with the actual effect of the publication on the jury, as well as with the cumulative effect of other factors which might arise after the publication. 211 It is a decision made with the benefit of hindsight. In reaching a decision, the judge’s attention is not confined to material published after the commencement of the sub judice period. 212 Moreover, the decision is made by the judge without hearing the publisher. By contrast, contempt proceedings are concerned only with the objective tendency of the material, considered predictively at the time of the publication. Furthermore, a contemptuous publication can be exonerated if it discusses a matter of public importance. Nonetheless, it has been suggested that, although not determinative, evidence as to the fate of the trial is at least relevant to determining the tendency of a publication for the purposes of contempt. 213 Secondly, the tendency of the material is assessed at the time it is published, not by reference to subsequent events. This explains why the media can be guilty of contempt for publishing a report which tends to prejudice jurors against an accused, notwithstanding that the accused ultimately pleads guilty, 214 or is tried and acquitted, 215 or commits suicide prior to trial. 216 208

209

210

211

212 213

Registrar of Court of Appeal v Willesee (1985) 3 NSWLR 650; Attorney-General v MGN Ltd [1997] 1 All ER 456; Western Australia v Armstrong [2007] WASCA 204. For example, a fair and accurate report of a judicial proceeding will not be contemptuous, but it may nevertheless result in a trial being aborted or a conviction overturned. The fact that a trial has been stayed or a jury discharged is relevant to the penalty if a contempt is made out: [6.960]. R v Glennon (1992) 173 CLR 592. The decision is criticised in A Ardill, “The Right to a Fair Trial: Prejudicial Media Publicity” (2000) 25(1) Alternative Law Journal 3. See also New Zealand Law Commission: Contempt in Modern New Zealand, Issues Paper 36 (2014) at [4.10]. For a discussion of this issue in the United Kingdom context see: Attorney-General (UK) v Guardian Newspapers Ltd [1999] EMLR 904, which was not followed in HM Attorney-General v MGN Ltd & News Group Newspapers Ltd [2011] EWHC 2074 (Admin) at [22]-[28]. See also Solicitor-General (NZ) v Fairfax New Zealand Ltd (HC Wellington CIV-2008-485-705, 10 October 2008 at [84]). New South Wales Law Reform Commission (2000), [4.92]-[4.104]. These factors might include the cost of aborting the trial and the strain of a new trial on the participants: R v Olden [2001] VSC 80 at [8]. It has been observed that judges place greater faith in the ability of jurors to ignore prejudicial publicity in the context of deciding stay applications than they do when determining whether a contempt has been committed: Law Reform Commission of Western Australia, Report on Review of the Law of Contempt, Report 93 (2003), p 26.

214

R v Long (2003) 138 A Crim R 103. New South Wales Law Reform Commission (2000), [4.104]; Director of Public Prosecutions (Cth) v Sexton (2008) 181 A Crim R 507; [2008] NSWSC 152 at [24]-[36]. But see, contra, Western Australia v Armstrong [2007] WASCA 204 at [20] per Martin CJ. For an argument that stopping the trial and fining the media for a contempt should generally either occur together or not at all see: M Chesterman, “Stop the Trial, Fine the Media or Why Not Both?” (1999) 1 UTS Law Review 71. R v Pacini [1956] VR 544.

215 216

R v Saxon, Hadfield and Western Mail Ltd [1984] WAR 283 at 291. Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368.

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Thirdly, the tendency of a publication is established objectively, by reference to the nature of the material published and to the circumstances and probabilities existing at the time of publication. 217 Courts consider the effect of the publication on an ordinary reasonable member of the community. 218 Establishing the tendency of material by reference to the circumstances of each case helps to ensure that the law of contempt does not encroach on freedom of speech without justification. The disadvantage of this approach is that it introduces a measure of uncertainty into the law which makes it difficult for the media to predict whether a particular publication is likely to be found to be contemptuous. Indeed it is impossible to delineate the boundaries of contempt with precision. 219 However, one boundary is clear. In Packer v Peacock, the High Court said that: In our opinion the public are entitled to entertain a legitimate curiosity as to such matters as the violent or sudden death or disappearance of a citizen, the breaking into a house, the theft of property, or any other crime, and it is, in our opinion, lawful for any person to publish information as to the bare facts relating to such a matter. By “bare facts” we mean (but not as an exclusive definition) extrinsic ascertained facts to which any eyewitness could bear testimony, such as the finding of a body and its condition, the place in which it is found, the persons by whom it was found, the arrest of a person accused, and so on. But as to alleged facts depending upon the testimony of some particular person which may or may not be true, and may or may not be admissible in a Court of Justice, other considerations arise. The lawfulness of the publication in such cases is conditional, and depends, for present purposes, upon whether the publication is likely to interfere with a fair trial of the charge against the accused person. 220

Similarly, it is permissible to publish extrinsically ascertained and undisputed facts about civil proceedings, including the names of parties and a description of the dispute. Finally, in News Digital Media Pty Ltd v Mokbel the Victorian Court of Appeal gave some guidance as to how it will assess the tendency of archived material on the internet. The Court was concerned with an appeal against an order directing News Digital Media Pty Ltd and Fairfax Digital Ltd to remove all existing articles about Mokbel from their websites and not to publish any articles containing references to him in the future until further order. The order was made four days before Mokbel’s trial for murder was due to begin. Warren CJ and Byrne J identified four characteristics of the internet which collectively set it apart from publications in print or on radio or television: 221 • like a print publication, but unlike broadcasts, publication on the internet is permanent;

217

218 219 220 221

Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 697; Director of Public Prosecutions v Wran (1987) 86 FLR 92 at 101; Harkianakis v Skalkos (1997) 42 NSWLR 22 at 64; Attorney-General (NSW) v Radio 2UE Sydney Pty Ltd (unreported, NSW Court of Appeal, Priestley, Meagher and Powell JJA, 16 October 1997). The mode of assessing the probabilities existing at the time of publication is discussed in [6.640]-[6.690]. Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 698, 702; Director of Public Prosecutions v Wran (1987) 86 FLR 92 at 101; R v Pearce (1992) 7 WAR 395 at 423. Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362 at 367. Packer v Peacock (1912) 13 CLR 577 at 588. See also Davis v Baillie [1946] VLR 486 at 494-495 where Fullagar J agreed but noted that the distinction between bare facts and alleged facts was not easy to draw. News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248 at 268-270.

[6.230] 385

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• unlike publications by print or broadcast, publications on the internet lack a specific location and can be accessed anywhere in the world. Indeed, it is no more difficult to access material posted interstate or overseas than material posted locally. 222 • for the most part, material on the internet is available to the public only by searching through a search engine. 223 The Court likened it to a person visiting a library, searching for a string of words in a fully indexed library catalogue and being able to inspect any article in the library containing those words. However, there are two important qualifications to the analogy: “very few collections of paper publications provide the searcher with the facility of locating a publication by searching a string of words contained in the publication” and paper collections are more difficult to access than material on the internet, which can be retrieved and downloaded instantaneously; 224 and • articles published on the internet can be copied and posted on other websites outside the jurisdiction. Thus, even if contemptuous material is removed from the site on which it was originally posted, a determined searcher may be able to access it from a cached website. Notwithstanding these features, Warren CJ and Byrne J (Buchanan JA dissenting) nevertheless concluded that the order to take down the existing articles should not have been made, as the articles did not have the requisite tendency to prejudice Mokbel’s trial. Their Honours proffered three main reasons as to why this was the case. First, persons called for jury service in Victoria do not learn until a very late stage that they have been selected to be members of a panel from which will be drawn a jury for the trial of an identified accused person. By that stage, these persons will have been informed that Victorian legislation prohibits them from conducting internet searches of the accused and been given firm warnings not to conduct them. 225 This dissipates the risk of prejudice considerably, given the court’s assumption that jurors will comply with their legal obligations and judicial directions. Secondly, it was assumed that since the articles were no longer current 226 they were not presented in such a way as to be forced upon a visitor to the site; thus a juror would not inadvertently come across the material. 227 Thirdly, their Honours were influenced by an argument based on utility, namely, that even if these two media companies removed the offending articles from their websites, they would remain accessible from cached websites via a Google search. Taken together, these factors led Warren CJ and Byrne AJA to conclude that the order to take the 222

As explained in [6.160] this makes it hard to catch a person who is responsible for a publication but who is outside the jurisdiction of the court.

223

The Court put to one side, news and other websites that volunteer current news stories to site visitors, as these are usually of very short currency.

224

In Her Majesty’s Advocate v William Beggs Opinion No 2 of Lord Osborne [2002] SLT 139, Lord Osborne was attracted to the idea that material archived on a website is less accessible than other material on the site, but Warren CJ and Byrne J “very much doubted” that this was the case in the modern internet environment. News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248 at 269. It has been suggested that media organisations should avoid linking current articles to historical material where the subject matter of the article concerns a pending judicial proceeding: Scott and Cooper (2010) 13 Internet Law Bulletin 197 at 199. News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248 at 272. Jurors would find the articles if they searched for them, but given the judicial assumption that such searches will not be conducted, the risk is not substantial.

225 226

227

386 [6.230]

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articles down was simply not necessary for the protection of the court’s processes. The order prohibiting the uploading of future articles was likewise not necessary, as there was no evidence which entitled the trial judge to find that these media organisations were intending to post further material about Mokbel, or as to its content. 228 The outcome of the case suggests that although material in internet archives constitutes a “publication”, it may not present a great problem for media organisations in terms of its tendency. However, the dissent of Buchanan JA suggests that this is an area on which judges might reasonably disagree. This became apparent in February 2011, when Price J in the Supreme Court of New South Wales ordered two newspapers to remove a number of archived articles from their websites a few days before the trial of three men accused of murder, notwithstanding that a Google search would yield thousands of references to the men. The judge was not attracted by the futility argument, holding that the court had an obligation to do whatever it could to protect the integrity of its processes. 229

Proving tendency [6.240] Judges hearing contempt cases generally rely on their own impressions and draw on their own experience as counsel and judge when deciding whether a publication has the requisite tendency to prejudice. 230 However, in Attorney-General (NSW) v John Fairfax Publications Pty Ltd 231 the defendant newspaper called two expert witnesses to give evidence about the ability of jurors to remember what they read in newspapers. Both witnesses testified that it was statistically unlikely that the newspaper article in question could have influenced jurors five months after its publication, which was when the accused’s trial was due to begin. The expert witnesses had qualifications in psychology, and one witness’ evidence was based largely on the results of a survey he had conducted regarding the effect of the particular publication on a select group of readers. The evidence was held to be admissible, but Barr J ultimately found it to be of limited value in assessing the tendency of the publication because of the difference between the conditions under which the survey was conducted and the conditions that would prevail at the trial. These differences were so significant that the judge felt unable to accept the survey results as a reliable indicator of what might happen at the trial. However, the case leaves open the possibility that, if trial conditions can be convincingly replicated, a judge might rely on empirical and sociological evidence to assess the tendency of a publication. 232

228 229

News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248 at 272-3. R v Perish [2011] NSWSC 1102.

230

Solicitor-General v Broadcasting Corporation of New Zealand [1987] 2 NZLR 100 at 108; R v Sun Newspapers Pty Ltd (1992) 58 A Crim R 281 at 285-286. Attorney-General (NSW) v John Fairfax Publications Pty Ltd [1999] NSWSC 318. This issue is discussed in I Freckelton and M McMahon, “Social Science Research and Experimentation in Australian Criminal Proceedings: Prejudicial Pre-trial Publicity and Psychological Research” (2009) 9 Journal of Law and Medicine 347.

231 232

[6.240] 387

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Contemptuous publications: specific examples [6.250] In order to develop an understanding of when publications will be held to have a tendency to interfere with the administration of justice, it is necessary to ascertain what the proper administration of justice demands. The proper administration of justice requires that all citizens should have unhindered access to the courts for the determination of disputes regarding their legal rights and liabilities. 233 Having secured this access, the parties to litigation, civil or criminal, should be free to present their arguments to the court in the way they see fit, and to place all relevant, available evidence before the court, apart from the legally recognised exceptions which form the body of the law of evidence. Having presented their arguments and evidence, the parties should be able to rely upon obtaining the arbitrament of a court which is free from bias and whose decision is based only upon the arguments and admissible evidence that have been presented to it. 234 It is generally accepted that if these demands are met, the truth is most likely to be elicited and a correct decision reached. The law of sub judice contempt attempts to facilitate this outcome while at the same time preserving, as far as possible, the right to freedom of speech. To secure the effective administration of justice, it follows that the law of sub judice contempt must protect from interference, the three main participants in pending proceedings: the trier of fact (or, if a verdict has been reached, the sentencing authority), the parties and the witnesses. It follows that a publication can constitute a contempt on the ground that it has a tendency to prejudice, bias or impair the impartiality of the court or improperly influence the parties or actual or potential witnesses in pending proceedings.

Trier of fact: judges and magistrates Influence [6.260] Litigants have a right to expect that the judgment of the arbiter in their case will be unswayed by media reports and comments. 235 The extent to which judges are susceptible to what they see and read in the media is an issue over which judges themselves have been divided in opinion. For example, Lord Salmon vigorously declared that no professionally trained judge would be influenced in his judgment by anything he read in the newspapers or saw on the television, 236 while Lord Reid asserted that it is scarcely possible to imagine a case where comment could influence judges in the Court of Appeal or House of Lords. 237 In similar vein, in R v Duffy; Ex parte Nash Lord Parker declared that it was inconceivable that a judge would be affected by media publicity. 238 Other judges have found the claim to judicial 233 234 235 236

Attorney-General v Times Newspapers Ltd [1974] AC 273 at 309. Attorney-General v Times Newspapers Ltd [1974] AC 273 at 309. Bell v Stewart (1920) 28 CLR 419 at 433. Attorney-General v British Broadcasting Corporation [1981] AC 303 at 342-343. This statement was referred to with approval by Gibbs CJ and Mason J in Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 at 58, 102.

237 238

Attorney-General v Times Newspapers Ltd [1974] AC 273 at 301. R v Duffy; Ex parte Nash [1960] 2 QB 188 at 198. See also Bell v Stewart (1920) 28 CLR 419 at 425-426.

388 [6.250]

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superiority over human frailty difficult to accept, and have conceded that it is possible that judges can be at least subconsciously affected by what they see and hear outside the courtroom. 239 Leaving aside the issue of whether adverse or biased pre-trial publicity may bring subconscious pressure to bear on judges, it is generally agreed that judges will not knowingly allow themselves to be influenced by media publicity and that their legal training and experience enables them to put out of their minds matters which might be found to have a tendency to impair the impartiality of a jury. Indeed as Gibbs CJ observed, it is the everyday task of judges to put out of their minds evidence of the most prejudicial kind that the judge has heard and rejected as inadmissible. 240 Because judges are assumed to be able to recognise and resist the influence of pre-trial publicity, courts adopt the view that this type of pressure falls short of creating a substantial risk of interference with the administration of justice and consequently fails to satisfy the test of contempt. 241 The fact that the publication might have had an effect on the public is not a material consideration. 242 Opinions once differed as to whether the same degree of imperviousness to prejudicial publicity should be attributed to magistrates. At a time when magistrates were not required to be legally qualified, there may have been some justification for treating them as being more vulnerable to media influence than judges. 243 However, today, magistrates must be legally qualified and are regarded as having the same ability as judges to disregard matters that are inadmissible at a trial or in committal proceedings. 244 Coroners are expected to fulfil their tasks with the same professional judicial attitude as judges and magistrates. 245

239

240 241

242 243 244

245

Attorney-General v British Broadcasting Corporation [1981] AC 303 at 335 per Viscount Dilhorne. See also R v McInroy (1915) 26 DLR 615; Bell v Stewart (1920) 28 CLR 419 at 433 per Isaacs and Rich JJ; Pennekamp v Florida 328 US 331 at 358 (1946); Kerr v O’Sullivan [1955] SASR 204 at 209-210; Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540 at 550; Solicitor-General v Smith [2004] 2 NZLR 540 at 557. Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 at 58. Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 at 102 per Mason J. See also: R v Herald & Weekly Times Pty Ltd [2006] VSC 94 at [19], [31]-[32]. Some judges have left open the possibility that in extreme cases a finding of contempt could be made on the ground that there is a real risk that a judge might be improperly affected in his or her findings. A sustained media campaign conducted over a long period in an apparent attempt to influence judges may be a case in point: Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540 at 564 per Handley JA. Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 at 57-58. Justices of the peace also tried cases in the Magistrates’ Court: R v Regal Press Pty Ltd [1972] VR 67. Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 709; Waterhouse v Australian Broadcasting Corporation (1986) 6 NSWLR 733 at 734; X v Amalgamated Television Services Pty Ltd (No 2) (1987) 9 NSWLR 575 at 591; Director of Public Prosecutions v Francis (2006) 95 SASR 302; [2006] SASC 211 at [55], [61]. R v Regal Press Pty Ltd [1972] VR 67 at 79; Attorney-General (NSW) v Mirror Newspapers Ltd [1980] 1 NSWLR 374 at 387; Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540 at 550, 563-564.

[6.260] 389

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The practical effect of this position is that the media enjoy a great deal more freedom to publish information about proceedings which are heard by judge alone or by a magistrate. 246 These include most civil actions, coronial inquests, 247 less serious criminal cases and appeals. In circumstances where an accused person can elect to have an indictable offence tried summarily or by jury, the media should assume, before the election is made, that there are potential jurors whose minds are capable of being affected by what is published. 248 Moreover, it must be emphasised that publications can be contemptuous for reasons other than their potential effect on a judge or magistrate. Accordingly, the fact that a case is not being tried by jury does not mean that the media enjoy complete freedom in relation to what they publish.

Embarrassment [6.270] Although prejudicial material is not regarded as capable of having the requisite tendency to prejudice a judge, it is undeniable that a judge might be put to the task of having to dismiss prejudicial material from his or her mind. 249 Judges who are placed in this position are frequently described as “embarrassed” by the material, since the mere fact that such material has been published is apt to create in the minds of the public a perception that the judge was not free from outside influence. 250 A prime example is a media campaign against the leniency of a sentence. 251 If the prosecution successfully appeals against the leniency of the sentence, the public might assume that the appellate judge succumbed to the entreaties of the media. By contrast, if the judge confirms the sentence he or she may be perceived as having felt compelled to demonstrate that he or she had not been influenced by the media campaign. 252 The same observations apply to a media campaign in favour of a heavy sentence where a sentence is yet to be imposed. There is disagreement in the case law as to whether the law of sub judice contempt can be employed to protect against the appearance of decisions having been influenced by prejudicial material. 253 Some cases have ruled it out as a legitimate application of sub judice contempt, maintaining that liability should be reserved for publications which actually create a risk of 246

Even direct assertions of guilt may be permissible, although such assertions may be contemptuous for reasons other than their effect on the trier of fact: Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540.

247

249

In some jurisdictions it is possible to request that an inquest be held with a jury. Although a rare occurrence, it has been suggested that the possibility should not be ignored when considering the application of contempt law: Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540 at 568. Director of Public Prosecutions v Francis (2006) 95 SASR 302; [2006] SASC 211 at [61], [63]. The fact that the accused ultimately chooses not to have the case tried by jury does not prevent the publication from being contemptuous. R v Duffy; Ex parte Nash [1960] 2 QB 188 at 200.

250 251

See, for example, Ex parte Truth and Sportsman Ltd [1961] SR (NSW) 484 at 495. New South Wales Law Reform Commission (2000), [7.75].

252 253

United Kingdom Committee on Contempt of Court, Report on Contempt of Court (1974), Cmnd 5794, [49]. It has been noted that such cases are “in the borderland territory between scandalising contempt and … sub judice contempt”: Gould (2010) 15 Media and Arts Law Review 23 at 25.

248

390 [6.270]

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prejudice. 254 Others have not. 255 To apply the law of sub judice contempt in this context is arguably to move it away from its orthodox role, which is to prohibit the publication of material that has a real and definite tendency to prejudice the judgment of (inter alia) the trier of fact or the sentencer. Any liability in contempt would be imposed out of a concern to protect the integrity of the justice system against the appearance of improper pressure which may generate a public perception of judicial partiality. In short, it would shift attention away from the potential effect of the published material on the judge, and focus it on the effect of the material on community perceptions. Judges who accept that publications of this nature are capable of being contemptuous do so in the belief that the law of contempt can be justifiably employed to protect judges from unfair pressure and to preserve public confidence in the administration of justice. It has been suggested that these types of publications are more appropriately captured by scandalising contempt, as their focus is really on whether public confidence in the courts has been undermined. 256 Cases that recognise the existence of this form of contempt have been reluctant to accept that public confidence in the administration of justice must necessarily be shaken in circumstances where a media organisation has made an indirect bid to influence a court, for the reason that the public know that the courts are not, and must not be, influenced by extraneous matter. In R v Herald & Weekly Times Pty Ltd, it was held that each case must be judged on its particular circumstances. 257 That case concerned an editorial published after an accused pleaded guilty to murder charges but before his sentence. It contained a clear indication that the judge should sentence the accused to life imprisonment without the possibility of parole and that Victorians would “look with special interest” at the jail term imposed. Contempt charges were laid. Harper J held that because the recitation of the facts was measured and accurate, and since a period of long incarceration was inevitable given the nature of the crime, the editorial did not have a tendency to undermine public confidence in the administration of justice by giving rise to a serious risk that the court would appear not to be free of any extraneous influence. 258 The decision might have been otherwise had the publication been “so strident that, if its message was ignored by the judge when sentencing the accused, there would arise a real possibility of uninformed public clamour of the kind which would bring the courts, and therefore the administration of justice, into disrepute”. 259 254 255

256 257 258 259

Attorney-General (NSW) v Mundey [1972] 2 NSWLR 887; Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25. Attorney-General (NZ) v Tonks [1939] NZLR 533 at 537-538; Re South Australian Telecasters Ltd (1998) 23 Fam LR 692 at 701; R v The Herald & Weekly Times Ltd [1999] VSC 432 (on appeal, the Court of Appeal did not find it necessary to determine whether this ground of liability exists, because it found that the newspaper articles in question did not create a real risk that the judge would appear to the public not to have been free from outside influence: Herald & Weekly Times Ltd v Attorney-General (Vic) [2001] VSCA 152); Solicitor-General v Smith [2004] 2 NZLR 540 at 558, 560. See also the comments made in R v Hanson; R v Ettridge [2003] QCA 488 at [51]-[59]. Gould (2010) 15 Media and Arts Law Review 23 at 52-54. R v Herald & Weekly Times Pty Ltd [2006] VSC 94 at [28]. R v Herald & Weekly Times Pty Ltd [2006] VSC 94 at [19], [21]. In so deciding, Harper J gave due weight to the fact that the public know that judges must not be influenced by extraneous matter: at [28]. R v Herald & Weekly Times Pty Ltd [2006] VSC 94 at [20].

[6.270] 391

Australian Media Law

Trier of fact: jury [6.280] Although it is accepted that judges are not influenced by factors extraneous to the trial, it has traditionally been presumed that jurors, who are not legally trained, can be improperly influenced by publications about litigation or litigants. Indeed, findings of contempt are most commonly made on the basis that the published material has a tendency to improperly influence or bias the minds of actual or potential jurors in a particular case. A number of assumptions underlie this presumption, namely: that jurors will come into contact with media publicity surrounding a case; that jurors will retain the information they see, hear or read in the media; that the effect of prejudicial media reports might not be negated by judicial directions to the jury to ignore such reports; and that ultimately, the jury may not reach an impartial verdict based solely on the evidence and arguments presented in court. The upshot of these assumptions is that the law of sub judice contempt is regarded as necessary in order to protect juries – and ultimately the administration of justice – from the effects of prejudicial media reporting. Empirical testing of these long standing assumptions about the effect of media publicity on juries in actual criminal trials has been undertaken in several countries, including Australia, New Zealand and the United Kingdom. 260 A clear pattern has not emerged from the research. Studies conducted before the internet became ubiquitous suggest that jurors’ awareness of, retention of, and faith in the accuracy of, news stories may have been overestimated. 261 By contrast, a more recent investigation found that a significant proportion of jurors in high profile cases did access and recall pre-trial media coverage. 262 Judges frequently express their confidence that jurors are capable of distinguishing between media opinions and journalists’ angles on the one hand, and the evidence and arguments presented in court on the other, and will abide by a judge’s directions to ignore the former. 263 Moreover, some judges have observed that the nature of the trial itself is such that it causes all concerned to become progressively more inward looking, studying the evidence given and the submissions made to 260

261 262 263

W Young, N Cameron and Y Tinsley, Juries in Criminal Trials (Law Commission of New Zealand, 1999); M Chesterman, J Chan and S Hampton, Managing Prejudicial Publicity: An Empirical Study of Criminal Jury Trials in New South Wales (Law and Justice Foundation of New South Wales, 2001); C Thomas, Are Juries Fair? (Ministry of Justice Research Series 1/10, February 2010); C Thomas, “Avoiding the Perfect Storm of Juror Contempt” [2013] Criminal Law Review 483. New South Wales Law Reform Commission (2000), [2.30]. C Thomas, Are Juries Fair? (Ministry of Justice Research Series 1/10, February 2010). Duff v The Queen (1979) 39 FLR 315 at 333; Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 711-712; National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd [1989] VR 747 at 762; Johns v Australian Securities Commission (1992) 35 FCR 16 at 40; Ex parte Telegraph plc [1993] 2 All ER 971 at 978; Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540 at 560; R v Olden [2001] VSC 80 at [7]; R v Haydon (No 1) [2004] SASC 437 (in this case, Sulan J refused to direct the Registrar to issue a summons alleging contempt because he took the view that since the jurors had been directed to rely only on the evidence adduced at trial and had been warned that newspaper reports are not always complete or accurate, a newspaper report containing inaccurate information which might otherwise have been prejudicial to the accused did not have the requisite tendency to interfere with the due process of justice). See also United Kingdom Law Commission, Contempt of Court Consultation Paper No 209 (2012) at [2.26].

392 [6.280]

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the exclusion of other sources of enlightenment. 264 However, this confidence is more likely to be expressed by judges who are being asked to quash a conviction, discharge a jury or stay a trial as a result of prejudicial publicity. When deciding contempt cases, judges seem less optimistic about jurors’ capacity to ignore prejudicial publicity. Since each case of alleged contempt is judged on its merits, it is not possible to formulate the precise limits within which a publication will be lawful or to exhaustively list the information that can and cannot be published. However, it is possible to loosely categorise the publications that have been found to be contemptuous because of their potential to influence juries. These categories are drawn from the abundant decisions on particular instances of conduct which have been held to constitute contempt. Most relate to criminal cases, not only because jury trials are more common, but because criminal cases attract more media publicity than civil cases, and the dangers of disseminating prejudicial material are generally greater for the accused than for a litigant in a civil action. For every publication that has been cited for contempt, there are usually instances of similar types of publications that have not been prosecuted. This may be due to the fact that the circumstances of the publication are relevant, not just the actual content, but it may also be the product of erratic prosecutorial discretion. The lack of consistency in the way in which the law of contempt is invoked creates uncertainty for the media.

Publication of statements as to guilt [6.290] One of the most blatant forms of contempt is to publish material that asserts, suggests or creates the impression that an accused person committed the crime with which he or she has been charged. Example

Attorney-General (NSW) v Radio 2UE Sydney Pty Ltd [6.300] Attorney-General (NSW) v Radio 2UE Sydney Pty Ltd [1997] NSWSC 487; [1998] NSWSC 28 265 Connolly was charged with the murder of an 18 month old child. He pleaded not guilty to murder but guilty of manslaughter. The prosecution refused to accept the plea and Connolly was tried for murder by a Sydney jury. On the third day of the trial John Laws broadcast a segment concerning the case on his talkback radio program on Sydney radio station 2UE. During that segment he referred to Connolly as “absolute scum” and as “the itinerant strayer of the mother of the dead child”. Laws expressed outrage at the practice of plea bargaining and, after describing the injuries inflicted on the child, asked “Could somebody tell me how that is not murder?” At the time of the broadcast Laws was acting under a mistaken belief that the plea of manslaughter had been accepted and that all that remained was for Connolly to be sentenced by a judge. Despite the mistaken

264 265

R v Kray (1969) 53 Cr App R 412 at 415; Attorney-General v News Group Newspapers Ltd [1987] QB 1 at 16; Ex parte Telegraph Plc [1993] 2 All ER 971 at 978; Attorney-General v MGN Ltd [1997] 1 All ER 456 at 461. See also Attorney-General (Qld) v WIN Television Qld Pty Ltd [2003] QSC 157.

[6.300] 393

Australian Media Law Attorney-General (NSW) v Radio 2UE Sydney Pty Ltd cont. belief, the New South Wales Court of Appeal had no hesitation in finding Laws and the station guilty of contempt.

[6.310] The assertion of guilt need not specifically refer to the charges in the pending trial. It may be enough that the assertion is to the effect that the accused is guilty of those charges. 266 By contrast, where it is asserted that an accused is guilty of committing crimes other than the crime with which he or she is charged, the pending proceedings against the accused cannot be said to be directly prejudiced by media discussion or assertion of guilt of those crimes. 267 However, such discussion may be contemptuous on the basis that it creates a feeling of odium and scorn towards the accused, particularly if the other crimes the accused is said to have committed are more sinister than the crime with which the accused stands charged. 268 A publication can also be contemptuous on the basis that it impugns an accused person’s defences, such as self-defence and provocation in a murder trial. 269 It is becoming common for members of the public to post assertions of guilt about notorious accused persons on Facebook pages that are dedicated to the victims. 270

Publication of statements as to innocence [6.320] Most charges of sub judice contempt concern publications which are prejudicial to the accused in that they assert or imply that the accused is guilty. However, statements asserting an accused’s innocence can also constitute contempt, as the law of contempt is as much concerned with the risk of acquittal of the guilty as it is with the conviction of the innocent. 271 Example

Director of Public Prosecutions v Wran [6.330] Director of Public Prosecutions v Wran (1987) 86 FLR 92 Mr Wran, then Premier of New South Wales, was a close friend of Mr Justice Murphy. Justice Murphy had been charged on two counts of attempting to pervert the course of justice. He was acquitted of one of the charges and convicted on the other. He appealed against the conviction and the Court of Appeal ordered a retrial. On the day the retrial was ordered, Mr Wran gave an impromptu interview to the media. When asked to comment on the retrial, he said: 266 267 268 269 270 271

Director of Public Prosecutions v Australian Broadcasting Corporation (1986) 86 FLR 153. Director of Public Prosecutions v Francis (2006) 95 SASR 302; [2006] SASC 211 at [49]. Director of Public Prosecutions v Francis (2006) 95 SASR 302; [2006] SASC 211 [34]-[36]. R v The Herald and Weekly Times Pty Ltd [2008] VSC 251 at [15]; R v The Age Company Ltd [2008] VSC 305 at [21]. A prime example is the assertions of guilt about Adrian Ernest Bailey, who was accused of the murder of Jill Meagher. R v Castro, Onslow & Whalley’s Case (1873) LR 9 QB 219; R v Pearce (1992) 7 WAR 395.

394 [6.310]

Chapter 6 – Contempt of Court Director of Public Prosecutions v Wran cont. I was very satisfied with the Court of Appeal decision. I agree that there was a clear miscarriage of justice and I think the sooner the final step in what’s been a very very prolonged and sad affair is taken the better. Asked whether he was convinced that Justice Murphy would be found innocent at the retrial, Mr Wran replied “I have a very deep conviction that Mr Justice Murphy is innocent of any wrongdoing.” He said he based this conviction on his knowledge of Justice Murphy and the facts as they emerged in the case. Later in the interview he said he would expect a different verdict from the new trial. These comments were published in the Daily Telegraph and both Mr Wran and the publisher, Nationwide News Pty Ltd, were charged with contempt. The New South Wales Court of Appeal held that the statements were likely or calculated or had a tendency to interfere with the due course of justice in the new trial because of their tendency to influence potential jurors in the new trial to acquit Justice Murphy. Mr Wran sought to draw a distinction between saying point blank that a person is innocent and saying that you held a belief that a person is innocent. The court rejected the distinction and found Mr Wran and Nationwide News guilty of contempt. 272

[6.340] The Court of Appeal indicated that in some circumstances, statements as to innocence are permissible, citing as an example, a public claim of innocence by a person in respect of whom a new trial has been ordered. The same would presumably apply to statements made by members of an accused’s family. However, the court stressed that there are limits as to how far an accused can press his or her innocence publicly. 273

Criticising or disparaging the accused [6.350] It is possible to commit a contempt of court by publishing adverse comments about a litigant in pending proceedings or by otherwise creating an adverse impression of a litigant, as publications which denigrate or excite feelings of hostility or antipathy against an accused may have a tendency to impair the impartiality of the jury or affect the evidence of witnesses. 274 Example

R v Saxon, Hadfield and Western Mail Ltd [6.360] R v Saxon, Hadfield and Western Mail Ltd [1984] WAR 283 The accused had been committed to face trial on a charge of perjury. At the trial, her honesty and credibility would be in issue. The publication of an article shortly before the trial which attacked the accused’s business methods and her inability to repay her debts

272

The same distinction was also rejected in R v Pearce (1992) 7 WAR 395 at 423.

273 274

Director of Public Prosecutions v Wran (1987) 86 FLR 92 at 101-102. Director of Public Prosecutions v Francis (2006) 95 SASR 302; [2006] SASC 211.

[6.360] 395

Australian Media Law R v Saxon, Hadfield and Western Mail Ltd cont. suggested bad character and was damaging to her credit. The article was held to be a contempt.

[6.370] While the publication need not deal with the subject matter of the litigation itself, 275 the further removed the criticism is from the subject matter of a proceeding, the less likely it is that the publication will be held to create a real risk of interference with the administration of justice in that proceeding. [6.380] A photograph or film footage can also be contemptuous on the ground that it creates an impression adverse to the accused. Example

R v Australian Broadcasting Corporation [6.390] R v Australian Broadcasting Corporation [1983] Tas R 161 Film footage of a man arrested for murder was held to have the requisite tendency to influence the minds of potential jurors on the ground that it created an adverse impression of the accused. The footage showed the accused in handcuffs and apparently guarded and in custody and behind a wire mesh fence. The commentary accompanying the film sequence tended to aggravate the adverse impression.

Example

Attorney-General v Associated Newspapers Ltd & News Group Newspapers Ltd [6.395] Attorney-General v Associated Newspapers Ltd & News Group Newspapers Ltd [2011] EWHC 418 (Admin) The accused was being tried for murder and intended to plead self-defence. Shortly after a jury was empaneled and sworn in, two major newspapers published online an image of the accused brandishing a pistol in a brazen manner. The Court held that both papers had committed a contempt because the image “could not have failed to create

275

Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242 at 248; R v Thomson Newspapers Ltd; Ex parte Attorney-General [1968] 1 All ER 268; Johns v Australian Securities Commission (1992) 35 FCR 16 at 39; Director of Public Prosecutions v Francis (2006) 95 SASR 302; [2006] SASC 211.

396 [6.370]

Chapter 6 – Contempt of Court Attorney-General v Associated Newspapers Ltd & News Group Newspapers Ltd cont. an adverse impression of a young man who enjoyed demonstrating a propensity for violence. It was prejudicial in a manner directly relevant to the issues in the case”. 276

Creating sympathy for the victim of a crime [6.400] A publication that creates sympathy for the victim of a crime is capable of being regarded as contemptuous on the basis that it engenders feelings of hostility against an accused. The issue was pressed in the following case, but ultimately did not result in a finding of contempt. Example

Western Australia v Armstrong [6.410] Western Australia v Armstrong [2007] WASCA 204 In the final stages of the trial of an accused person for unlawful killing, a letter to the editor from the co-convenor of the Homicide Victims Support Group was published in The West Australian newspaper which lamented the fact that the victim had been referred to in court as “the body”. The letter stated that until his death, the dead youth was a living, breathing teenager, a son, and possibly a brother, grandson, nephew, cousin and friend. It called upon the judicial system to wake up to the fact that victims are, or were, real people and stated that until the system stops being weighted in favour of the offender there will be no justice. The letter did not name the accused but the detail made it clear that the references were to his trial. The trial judge discharged the jury as a result of the letter and the editor and publisher of the newspaper were prosecuted for contempt. One ground of the alleged contempt was that the letter had a tendency to influence the jury to be sympathetic to the victim and hostile to the accused. All three judges agreed that there was no contempt, but they differed somewhat in their reasons. One problem with the prosecution case was that there was no evidence before the court hearing the contempt charge that there had been any references to “the body” at the accused’s trial. This was held to deprive the letter of some of its meaning. Martin CJ was the most dismissive of the charge. He regarded the letter as containing generic observations about the justice system and stated that debate conducted at such a great level of generality could never be contemptuous. Miller JA was more sympathetic to the claim that the letter might have engendered sympathy towards the victim but held that jurors were capable of distinguishing between fact and opinion and, in any event, any

276

Attorney-General v Associated Newspapers Ltd & News Group Newspapers Ltd [2011] EWHC 418 (Admin) at [41].

[6.410] 397

Australian Media Law Western Australia v Armstrong cont. sympathy for the victim that jurors might harbour could be effectively countered by judicial directions.

[6.420] Publishing graphic photographs of a victim’s injuries in the media before or during a trial might constitute a sub judice contempt on the basis that it arouses sympathy for the victim. 277

Creating sympathy for the accused [6.430] A contempt of court can be committed by the publication of emotive statements which are calculated to engender sympathy for the accused. 278 The statements need not be directed at the issues to be decided by the jury. Example

R v Truth Newspaper [6.440] R v Truth Newspaper (unreported, Vic Supreme Court, Phillips J, 16 December 1993) Victorian policeman Paul Higgins was being tried in the Supreme Court of Victoria on charges of corruption. During the concluding stages of the trial, which had been proceeding for 15 months, the Truth published a story about the trial. The nub of the story was that the trial was one of the most expensive legal cases in Australian history, and that it had cost an estimated $33 million, mostly in taxpayers’ money. Details of Higgins’ marriage breakdown and ill health were included in the article, the implication being that Higgins’ considerable personal suffering was attributable to the strain of the trial. Phillips J of the Supreme Court of Victoria held that in portraying Higgins as a victim of the prosecuting system, if not of the prosecuting agency itself, the articles had a real tendency to engender sympathy for Higgins and to denigrate the Crown. Being published at a critical time in the trial, shortly before the jurors retired to consider their verdict, the articles were prone to distract the jurors from their task of considering

277

Western Australia v BLM (2009) 40 WAR 414; [2009] WASCA 88. This was not a case in which the media had been cited for contempt for publishing graphic photographs of a victim’s injuries. Rather, it was an appeal against a conviction, one ground of appeal being that the publication of the photographs was highly prejudicial to the accused. The appeal did not succeed on this ground, as any prejudice was held to have been mitigated by the trial judge’s directions to the jury. However, it remains possible that the publication of such photographs might, in an appropriate case, constitute a contempt. See also Solicitor-General (NZ) v TV3 Network Services & Television NZ Ltd (High Court, Christchurch M520/96, 8 April 1997) (media coverage created sympathy for victims but no finding of contempt was made because the court was not satisfied that the coverage had created a real risk of interference with the administration of justice).

278

Davis v Baillie [1946] VLR 486 at 498.

398 [6.420]

Chapter 6 – Contempt of Court R v Truth Newspaper cont. Higgins’ guilt or innocence according to the evidence, and were therefore calculated to interfere with the fair trial of Higgins.

Publishing confessions [6.450] As explained in [6.250], the proper administration of justice demands that the courts, not the media, should determine what evidence will be admitted at a trial and that, in reaching a decision, the jury should take into account only the admissible evidence and arguments that have been presented in court. The law of sub judice contempt gives effect to these principles by ensuring that actual and potential jurors are not put in possession of material that is either clearly or potentially inadmissible under the rules of evidence. It is no answer to a charge of contempt that the material in question is subsequently admitted into evidence, as the tendency of the material is judged at the time it is published. The media must also exercise care when reporting that evidence has been held to be inadmissible, even if the nature of the evidence is not identified. A report of this nature will be contemptuous if it suggests to the jury that evidence adverse to one of the parties has been withheld from them and there is a real risk that the jury would act on this belief. 279 It has long been recognised that the media should not publish a statement which suggests that the accused has confessed to a crime until the confession has been admitted into evidence. 280 Experience shows that when an accused is brought to trial there are often disputes as to the admissibility of any confessional statements. The accused might repudiate the confession or challenge the circumstances in which it was made. Such disputes are normally resolved in the absence of the jury because of the irreparable prejudicial effect that knowledge of an alleged confession, which ultimately turns out to be inadmissible, might have. This procedural safeguard which the law extends to accused persons would be seriously undermined if the fact of an alleged confession is made known to actual or potential jurors by the media. 281 Example

Attorney-General (NSW) v TCN Channel Nine Pty Ltd [6.460] Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368 On the evening of Saturday 29 July 1989 Mason surrendered to police and confessed to the brutal murders of three people and an attempted murder of a fourth person. The crimes occurred at Geary’s Gap and Pambula. Mason was subsequently arrested and interviewed at the Queanbeyan police station. In the early hours of Sunday 30 July he 279 280 281

R v Day & Thomson [1985] VR 261 at 264-265. Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362; Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368 at 380. Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368 at 380.

[6.460] 399

Australian Media Law Attorney-General (NSW) v TCN Channel Nine Pty Ltd cont. was charged with the murders and signed records of interview confessing his guilt. Later that morning Mason took police to the scenes of the crimes where he made further confessional statements. Representatives of the media accompanied police and filmed Mason as he spoke with them. That evening, Channel Nine’s news broadcast contained an account of the surrender, the “alleged” confessions, and the return to the scenes of the crimes. The pictures accompanying the spoken words showed Mason handcuffed to police, taking police officers around the scenes of the crimes and pointing out matters to them. The pictures created the clear and accurate impression that Mason led police to where the murder weapon was concealed (Geary’s Gap) and that he took them around the house and showed them how he had killed two of the victims and disposed of their bodies (Pambula). Channel Nine also broadcast a statement made by a police officer at a media conference that they were pleased at the fact that Mason had not committed “any further crimes”. Channel Nine was charged with contempt. The New South Wales Court of Appeal held that the published material clearly conveyed the information that Mason had confessed to the crimes with which he had been charged and that there was no doubt about his guilt. The pictures of Mason at the scene of the crime conveyed a powerful impression of guilt. The prejudicial effect of the words and footage was not overcome by the use of the words “allegedly admitted” or “allegedly confessed”, as the word “allegedly” did not materially alter the substance of the matter published or reduce the sting of what was reported. The court rejected an argument that the prejudice to the administration of justice should be disregarded because of the overwhelming case against Mason and the fact that he had, in truth, confessed. The court noted that the admissibility of the confession was not beyond question. It was at least possible that Mason’s psychiatric condition could have been relevant to the admissibility of his confession, as was the failure of the police to take him before a Magistrate until the morning of 31 July. Channel Nine was found guilty of contempt. 282

Publishing prior convictions [6.470] It is one of the most deeply rooted and jealously guarded principles of the criminal law that, except in a limited range of situations, evidence of the prior convictions of an accused person are not admissible in the trial of that person’s guilt or innocence of a criminal charge. 283 The objection to the admissibility of prior convictions is not based on relevance, but on the serious and insuperable prejudice which arises from their admission. The danger is that a jury in possession of this knowledge may be induced to conclude that the accused person had a propensity to commit the offence charged, and will therefore be predisposed to convict the accused. It follows that to disclose the fact that the accused has a criminal record or to 282

283

In a separate case, the police officer who conducted the media conference was also found guilty of contempt. The court held that the statements made in the conference clearly suggested that Mason had confessed to the charges and was guilty. That the statements were made honestly in answer to a journalist’s question and in ignorance of the law of contempt was relevant to penalty, but not to the issue of whether a contempt had occurred: Attorney-General (NSW) v Dean (1990) 20 NSWLR 650. Maxwell v Director of Public Prosecutions [1935] AC 309 at 317.

400 [6.470]

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publish details of the prior convictions or custodial history of an accused to a group of persons who may reasonably include jurors is calculated to cause prejudice to his or her fair trial. 284 It may not matter that the prior convictions are of a different nature to the pending charges against the accused. Example

Attorney-General (NSW) v Willesee [6.480] Attorney-General (NSW) v Willesee [1980] 2 NSWLR 143 Schneidas, a prisoner serving a sentence, was charged with the murder of Mewburn, a prison warder. Mewburn’s death triggered a strike of the prison warders and, as a consequence, the prisoners were confined to their cells. On 20 August 1979, the current affairs program Willesee at Seven televised a segment which dealt with the consequences of the prisoners being locked in their cells. It discussed the concern of residents who lived near the prison at the obscene language of the prisoners which could be heard outside the jail. It also revealed the prisoners’ attitude to their confinement by televising a statement by a prisoner which was recorded by means of sensitive long range equipment. The television picture showed the prisoner, whose identity was not discernible, behind the bars of a prison window. The unidentified prisoner indicated that the prisoners blamed improper administration of the jail for the death of the warder. He continued: The inmate who allegedly killed Mewburn had previously assaulted two other officers with weapons. Accordingly, he was placed in the Observation Unit of the Central Industrial Prison and, as that name implies, it is supposed to be a super-tight maximum security part of the gaol. How was any inmate in that section able to lay his hands on a hammer? The Attorney-General commenced contempt proceedings against Willesee, his production company and the television licensee which broadcast the material. The Attorney-General alleged that the statement that Schneidas had previously assaulted two other officers with weapons had a tendency to prejudice his fair trial. The New South Wales Court of Appeal acknowledged that it would have been impossible to describe the general circumstances of Mewburn’s murder without saying that it was allegedly committed by a prisoner at the jail, and difficult to discuss the warders’ strike without stating that it was prompted by the killing of Mewburn by one of the prisoners. Accordingly, the publication of these statements did not constitute a contempt. However, the allegation that the accused had previously attacked officers with weapons and the relevance of that allegation to the issues to be decided in the trial of the accused rendered the broadcast contemptuous. The alleged contemnors argued that the prior convictions of Schneidas had already been placed in the public domain through the publication of reports in 1978 of the proceedings in court of an earlier prosecution against Schneidas. The court held that this was an unavoidable consequence of the right

284

Davis v Baillie [1946] VLR 486; R v The Age Company Ltd [2006] VSC 479. See also Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563.

[6.480] 401

Australian Media Law Attorney-General (NSW) v Willesee cont. to publish fair and accurate reports of proceedings in court, and had no bearing upon the prejudice occasioned by the Willesee broadcast.

[6.490] It has been suggested that this category of contempt encompasses not only the publication of prior convictions, but publications which reveal that the accused has been previously charged for committing an offence, has been acquitted of an offence or is facing concurrent charges, or which discusses an accused’s bail history. 285

Prejudging issues awaiting judgment [6.500] It has already been explained that publishing material which prejudges the guilt or innocence of an accused person in a criminal proceeding will generally be held to amount to a sub judice contempt. What falls to be considered under this category of contempt is the prejudgment of issues of fact or law which must be decided by a court in a civil proceeding. The position in the United Kingdom [6.510] In Attorney-General v Times Newspapers Ltd 286 the House of Lords imposed a blanket prohibition on the publication of anything in the nature of a prejudgment of issues pending before a court, irrespective of whether the publication has a tendency to prejudice the administration of justice in the case at hand. The case concerned a drug containing thalidomide which was made and marketed by Distillers Co (Biochemicals) Ltd between 1959 and 1961. Several hundred children were born with gross deformities to mothers who had taken the drug during pregnancy. As soon as this was realised, the product was withdrawn from the market. In 1968, 65 actions against Distillers were settled by lump sum payments. Thereafter, leave was given in 261 cases to issue writs out of time but apart from one statement of claim and a defence, no further steps had been taken in those actions. Further claims had been advised. In 1971, negotiations began concerning a proposal by Distillers to set up a charitable trust fund in excess of three million pounds for children not covered by the 1968 settlement. Negotiations were still proceeding when, in September 1972, The Sunday Times published the first of a series of articles concerning the thalidomide children. The main thrust of the article was that Distillers should refuse to rely on its rights under the letter of the law and should offer much more to the children. Distillers complained to the Attorney-General that the publication of the article amounted to a contempt because litigation against them was still pending. The Attorney-General decided to take no action in relation to the published article. 287 The issue of prejudgment arose when the editor of The Sunday Times informed the Attorney-General that he intended to publish a further article. In addition to presenting information which strengthened the moral argument for a fairer settlement, the article included a detailed examination of the evidence relating to Distiller’s liability in negligence, one of the 285

Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563. See also New South Wales Law Reform Commission (2000), [2.45].

286 287

Attorney-General v Times Newspapers Ltd [1974] AC 273. This aspect of the case is discussed in [6.540].

402 [6.490]

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central issues to be decided in the pending litigation. In particular, the projected article canvassed the issue of whether Distillers had exercised due care to see that thalidomide was safe before putting it on the market. The article was intended to bring pressure to bear on Distillers to compromise claims brought against it. The Attorney-General issued proceedings for an injunction to restrain the publication of the projected article. The injunction was granted by the Divisional Court, discharged by the Court of Appeal on the basis that the proceedings were dormant and reinstated by the House of Lords. The House of Lords restrained the publication of the projected article on the ground that any prejudgment of issues in pending cases is contemptuous, irrespective of whether it creates a real risk of prejudice in the case. The justification advanced in support of this absolute prohibition was that it was necessary to arrest a gradual slide towards trial by media. Thus the court was motivated by a desire to protect the administration of justice as a continuing process and to ensure that the media does not usurp the role of the court. According to Lord Reid: Anything in the nature of prejudgment of a case or of specific issues in it is objectionable, not only because of its possible effect on that particular case but also because of its side effects which may be far reaching. Responsible “mass media” will do their best to be fair, but there will also be ill-informed, slapdash or prejudiced attempts to influence the public. If people are led to think that it is easy to find the truth, disrespect for the processes of the law could follow, and, if mass media are allowed to judge, unpopular people and unpopular causes will fare very badly. 288

Lord Reid proceeded to express concern that, if countenanced, trial by media would have a long term effect on the administration of justice by deterring “unpopular litigants” from having their cases heard by the courts. Lord Cross was perturbed by the prospect that, if public prejudgment were permitted, the public would become accustomed to expect it, and would resent the absence of preliminary discussions in the media of any case arousing widespread interest. This absolute rule appears to have been implicitly endorsed by the other members of the House of Lords. 289 In 1979, the European Court of Human Rights held that a general prohibition on media prejudgment was an unwarranted restriction on freedom of expression which breached the United Kingdom’s obligations under the European Convention on Human Rights. 290 The Contempt of Court Act 1981 (UK) was enacted, in part, to remedy the defect identified by the European court. It is now doubtful that the prejudgment principle is an accurate expression of the law in the United Kingdom. 291 The position in Australia [6.520] The status of the prejudgment principle in Australia was discussed but not resolved by the High Court in Victoria v Australian Building Construction Employees’ and Builders 288 289

Attorney-General v Times Newspapers Ltd [1974] AC 273 at 300. Attorney-General v Times Newspapers Ltd [1974] AC 273 at 303 (per Lord Morris), 309 (per Lord Diplock), 320-321 (per Lord Simon).

290 291

The Sunday Times v United Kingdom [1979] 2 EHRR 245 (ECHR). In re Lonrho [1990] 2 AC 154 at 208. For an argument that the principle has not been completely expunged see Miller (3rd ed, 2000), [8.16].

[6.520] 403

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Labourers’ Federation. 292 More recent cases have denied that it is necessarily a contempt to publish material that invites public prejudgment of an issue before the courts or that engages in public discussion of the merits of a pending case. For example, in Civil Aviation Authority v Australian Broadcasting Corporation, 293 Kirby P expressed concern that the court’s attention would be deflected away from the traditional concern of the law of sub judice contempt – to prevent mischief in a particular case – and refocussed on the elimination of poor or offensive journalism. Kirby P did not believe that the law of contempt should be used as a means of imposing quality controls on the media or as a form of media censorship. 294 In similar vein, in Re Coroner’s Court of Western Australia; Ex parte Porteous, Wheeler J explained that the two competing public policy considerations in contempt - protecting the due administration of justice and ensuring that freedom of speech is not unduly restricted – are balanced in the “real and definite tendency” formulation, and that a blanket prohibition on material which may not have this tendency would have a deleterious impact on freedom of speech and constitute an unacceptable alteration of the test for sub judice contempt. 295 Doubt has also been cast on the validity of some of the premises underlying the Sunday Times decision. For example, Kirby P stated that there were no proven grounds to support Lord Reid’s claim that potential litigants might refrain from bringing actions for fear of press prejudgment. On the contrary, Kirby P thought that the possibility of prejudgment would rarely have the slightest bearing on a person’s decision to litigate. Kirby P also observed that, if the House of Lords’ assessment of the effect of media prejudgment on litigants was accurate, then the prohibition should extend to post trial judgment, which would be equally capable of deterring future litigants from pursuing their rights in a court of law. Moreover, a blanket prohibition on prejudgment which purports to restrict discussion irrespective of whether it has the potential to cause actual prejudice to a particular case might infringe Art 19 of the International Covenant on Civil and Political Rights (to which Australia is a party) and the implied freedom of political communication. 296 No Australian decision has ever imposed liability for contempt on the basis of the prejudgment principle. Accordingly, it seems that the only clear circumstance in which prejudgment by the media will amount to a contempt is where it has a tendency, as a matter of practical reality, to interfere with the due administration of justice in the particular case. This will be so if there is a real risk that actual or potential jurors or witnesses may be biased or improperly influenced by the prejudgment (since jury trials in civil cases are infrequent, this would not arise very often) or if improper pressure is brought to bear on the parties. However, 292

Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25. Mason J doubted the applicability of the rule (at 96), whereas Brennan J appeared to accept it (at 167).

293

Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540.

294

295

Sheller JA denied the existence of a rule of law that all cases of media prejudgment amount to contempt, but did not deal with Attorney-General v Times Newspapers Ltd [1974] AC 273 in any detail. Handley JA expressed no opinion on the matter. Re Coroner’s Court of Western Australia; Ex parte Porteous (2002) 26 WAR 483; [2002] WASCA 144 at [77]. It was held that the earlier case of Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316, which cited Attorney-General v Times Newspapers Ltd [1974] AC 273 with approval, should not be taken to have endorsed the public prejudgment approach or applied it as the law in Western Australia.

296

The effect of the implied freedom of political communication on sub judice contempt is discussed in [6.780].

404 [6.520]

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it has been contended that protecting the administration of justice in each individual case may not always be sufficient, and that, whilst there should be no blanket prohibition on prejudgment of issues in a pending proceeding, in extreme cases, prejudgment should be capable of being punished as a contempt on the wider basis that it undermines public confidence in the integrity of the judicial system. 297

Parties The principle [6.530] The effective administration of justice demands that parties should have unimpeded access to the courts for the determination of disputes as to their legal rights and liabilities, and be free to present their evidence and arguments in the way they see fit and rely on any defences available under the law. Publications can amount to a sub judice contempt because of their effect on litigants. This form of contempt has primary relevance to civil proceedings. Before discussing this form of sub judice contempt it is important to point out that parties can be subjected to unjustified pressure by private individuals through means such as bribes, threats, blackmail, harassment, intimidation, ridicule or reprisals. 298 However, this section is concerned with pressure that is brought to bear on a party through the public dissemination of material in the media. In the pre-internet era, this could only be done on a large scale by media organisations. Today, private individuals have the same capability. 299 Although the boundaries of this form of contempt are still quite undefined, there are a number of comments that can be made about it. 300 First, while the law of contempt can be employed to ensure that litigants are not discouraged from seeking access to the courts for vindication of their legal rights or from defending an action brought against them, it is equally clear that courts will not use the law of contempt to ensure that litigants are completely free of pressure from the media. This is because a litigant’s freedom to conduct litigation as he or she chooses is not an absolute one; it must be balanced against freedom of speech. Secondly, a publication will constitute this form of contempt only where the material has a tendency, as a matter of practical reality, to influence a litigant in the conduct of an action, and the pressure is improper. Whether an intention to influence a litigant will suffice, without an accompanying tendency, is unclear. 301 Thirdly, courts dealing with this form of contempt are concerned both with the effect of improper pressure on the litigant in the pending proceeding, and with whether the improper pressure has a tendency to inhibit litigants who are similarly placed from seeking access to the courts. Fourthly, in Harkianakis v Skalkos Mason P suggested that the 297 298 299 300

301

Miller (3rd ed, 2000), [8.20]. See also Law Reform Commission of Western Australia, Contempt by Publication (2002), pp 62-63. See, for example, Timania Pty Ltd v Inghams Enterprises Pty Ltd [2004] FCA 732. See, for example, Tate v Duncan-Strelec [2014] NSWSC 1125. The comments in this paragraph are drawn from the summary of the principles contained in the judgment of Mason P in Harkianakis v Skalkos (1997) 42 NSWLR 22 at 27-30. These principles have been affirmed in subsequent cases including Vajda v Nine Network Australia Ltd [2001] NSWSC 840; North Australian Aboriginal Legal Aid Service Inc v Bradley (2001) 188 ALR 312 and Melbourne University Students Union Inc (In Liq) v Ray [2006] VSC 205. Some cases suggest that it will suffice: see [6.140].

[6.530] 405

Australian Media Law

tendency of the material should be measured against the capacity to withstand pressure of some hypothetical litigant of ordinary fortitude, rather than the particular litigant in question. 302 The weight of authority favours this objective approach, at least where the contempt consists of a publication to a broad audience, on the basis that “the element of interference with the administration of justice is mediated by the response of the community, broader than the parties, to whom the publication is sent”. 303 An objective test must, of necessity, be employed where the court is considering whether the publication has a tendency to influence litigants generally. Fifthly, the publication need not have successfully interfered with the party’s conduct of proceedings. 304 Finally, the New South Wales Supreme Court has recently held that improper pressure can amount to contempt even if it is exerted after the proceedings have concluded. 305 This may occur where an unsuccessful litigant launches a personal attack on a successful litigant by way of victimisation or reprisal because of their success. 306

The test [6.540] English, New Zealand and Australian courts have expressed divergent views as to the circumstances in which this form of contempt is made out. In Attorney-General v Times Newspapers Ltd, 307 the majority of the House of Lords – Lords Reid, Cross and Morris – held that it is a contempt to make a public statement which is calculated (in the sense of having a tendency) to influence a party to pending proceedings in the conduct of those proceedings, if the public statement misrepresents the facts or consists of intemperate discussion or opinion. 308 In that case, the Attorney-General decided not to institute proceedings in respect of an article published in the Sunday Times which urged Distillers to offer much more by way of settlement to the thalidomide victims without surrendering on negligence. The article was 302 303

304

305 306 307 308

Harkianakis v Skalkos (1997) 42 NSWLR 22 at 29-30. Bhagat v Global Custodians Ltd [2002] NSWCA 160 at [49]. See also Fry v Bray [1959] 1 FLR 366 at 376; Willshire-Smith v Votino Bros Pty Ltd (1993) 41 FCR 496 at 505; Resolute Ltd v Warnes [2000] WASCA 359 at [19] (the question was regarded as open but an objective test was applied); Vadja v Nine Network Australia Ltd [2000] NSWSC 873 at [12]-[15]; Melbourne University Students Union Inc (In Liq) v Ray [2006] VSC 205 at [14] (the issue was described as unresolved). The issue is discussed in R Baker, “Determining Contempts by Improper Pressure on a Litigant: An Objective or Subjective Test?” (2003) 8(1) Media and Arts Law Review 19. It seems that different considerations arise when pressure is being exerted in a private communication between the parties. In that case, subjective considerations such as the particular vulnerability of the litigant in question are also material when determining whether the pressure is improper, including the particular litigant’s age and means: Bhagat v Global Custodians Ltd [2002] NSWCA 160 at [45]-[49], [54], [56]; Industrial Registrar of New South Wales v The Uniting Church in Australia Property Trust (NSW) [2003] NSWIRComm 387 at [36]; Novotny v Cropley [2005] NSWCA 26 at [9]; Y & Z v W (2007) 70 NSWLR 377 at 387. Smith v Lakeman (1856) 26 LJ Ch 305 at 306; Willshire-Smith v Votino Bros Pty Ltd (1993) 41 FCR 496 at 505; Resolute Ltd v Warnes [2000] WASCA 359 at [13]; Industrial Registrar of New South Wales v The Uniting Church in Australia Property Trust (NSW) [2003] NSWIRComm 387 at [36]; Timania Pty Ltd v Inghams Enterprises Pty Ltd [2004] FCA 732 at [26]; Y & Z v W (2007) 70 NSWLR 377 at 384. Tate v Duncan-Strelec [2014] NSWSC 1125. Tate v Duncan-Strelec [2014] NSWSC 1125. This has implications for the requirement that proceedings be sub judice. Attorney-General v Times Newspapers Ltd [1974] AC 273. The facts of the case are outlined in [6.510]. These statements were made in circumstances where the only matter to be considered was whether the publication put improper pressure on litigants. In cases where potential or actual witnesses or jurors are involved, even fair and temperate criticism might constitute contempt.

406 [6.540]

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published with the clear intention of exerting pressure on Distillers to increase its settlement offer and not to proceed with its defence. The majority held that the Attorney-General was correct in refusing to take legal action against the Times Newspapers Ltd, despite the intention with which the article was published, because the facts were fairly and accurately stated and the views expressed in the article were couched in fair and temperate language. 309 In a subsequent Australian case, Hunt J held that where there is an intention to influence a party to pending proceedings in the conduct of those proceedings, contempt lies irrespective of whether the published comments are fair or temperate. 310 In New Zealand, courts adopt a twofold approach when dealing with contempts involving improper pressure on a litigant. First, the court focuses on the litigant in the particular case. It considers both the private and public pressure that has been exerted on that litigant. Pressure that is applied privately to a litigant will be treated as contemptuous if it is unfair or intemperate, even if it was exerted in good faith. 311 Public statements about the pending litigation, such as statements disseminated through the media, will be contemptuous if they go beyond fair and temperate comment, 312 and either, when viewed objectively, they have a real likelihood of inhibiting a litigant of average robustness of availing himself or herself of his or her constitutional right to have the case determined by the court, or it is actually intended by the maker of the statement to have that inhibiting effect on a litigant. 313 The second aspect of contempt by improper pressure is the impact of the alleged contempt on the public as potential litigants. Courts consider whether the pressure would inhibit potential litigants from availing themselves of courts of law to resolve a similar dispute. The modern Australian position was expounded by the New South Wales Court of Appeal in Harkianakis v Skalkos. 314 In that case, a defamation action was instituted by the Archbishop of the Greek Orthodox church in respect of a number of articles published in two newspapers which alleged serious dereliction of the Archbishop’s ecclesiastical duties and questioned his fitness for office. After defamation proceedings were commenced, two further articles were published which, in essence, accused the Archbishop of misusing trust moneys and of resentment against those who were willing to stand up to him and call him to account. The article expressed in confident terms that the Archbishop’s opponents would be vindicated in the outcome of the defamation proceedings. Mason P described these comments as a clear invitation to “see you in court”. The Archbishop thereupon commenced proceedings for contempt against Skalkos, the author of the articles and the managing director of the 309

For an English decision which held that pressure on a party was neither fair nor temperate but abusive see Attorney-General v Hislop [1991] 1 QB 514.

310

Commercial Bank of Australia Ltd v Preston [1981] 2 NSWLR 554. This view was attributed by Hunt J to the majority in Attorney-General v Times Newspapers Ltd [1974] AC 273 but it has been asserted that no such conclusion can be drawn from that case: Miller (3rd ed, 2000), [8.55]. Solicitor-General v Smith [2004] 2 NZLR 540 at [52]-[57]. In considering what is fair and temperate the court has regard to such matters as whether the comments were one-sided, whether they were extreme in terms of their tone and language and whether they were inflammatory and intimidating: Solicitor-General v Smith [2004] 2 NZLR 540 at [58].

311 312

313 314

Duff v Communicado Ltd [1996] 2 NZLR 89 at 98; Solicitor-General v Smith [2004] 2 NZLR 540 at [45]. Harkianakis v Skalkos (1997) 42 NSWLR 22.

[6.540] 407

Australian Media Law

newspapers concerned. He alleged that the two articles, amongst other things, had a tendency to exert improper pressure on him to discontinue or compromise the defamation proceedings. The Court of Appeal refused to endorse the test adopted by the majority in the Sunday Times case. Mason P, with whom Beazley JA agreed, held that the mere presence of an inaccurately stated fact or the use of florid, offensive or insulting language will not suffice to establish this form of contempt. Moreover, it is not enough that the publication would lead the public to form an adverse opinion about a party in circumstances where the public play no part in the administration of justice (which will be the case if the pending trial is by judge alone). Litigants wishing to seek legal redress in respect of publications of this nature must do so through the law of defamation. According to Mason P, a publication will be contemptuous only if, in addition to having the requisite deterrent tendency, the pressure can be described as improper. This will be the case if the publication disparages or vilifies a litigant without justification because he is a litigant or because of the litigation or the allegations made in it. In determining whether a publication has crossed the line from the offensive to the contemptuous, the whole context must be examined, including the tone of the publication and its fairness and accuracy. On the facts, Mason P and Beazley JA (Powell JA dissenting) found that aspects of one of the articles had a tendency to deter the Archbishop in his prosecution of the defamation proceedings by publicly vilifying him, without justification, in his capacity as a litigant. Mason P also held that it is a contempt to publish material with the intention of bringing improper pressure to bear on a litigant to initiate, continue, discontinue or settle an action, whether or not the material has a tendency to do so. However it is unclear whether intentional contempt is a separate, independent form of contempt. 315

When pressure is improper [6.550] Although working an alteration in the substance of the test for this type of contempt, the Harkianakis case does not provide detailed guidance as to the specific types of pressure that will be improper. 316 This is determined on a case by case basis. The cases suggest that the pressure may be actual or threatened, conditional or unconditional. 317 It has been held that it is not improper to alert a party to the risks of litigation or to assert that the party will lose the case, even if this exerts pressure on the party to withdraw proceedings or otherwise modify his or her conduct. 318 Nor is it improper to question the commercial viability of the litigation in question, at least if the assertions have a strong degree of factual accuracy. 319 It is also permissible to make an offer of compromise. 320 However, pressure will be contemptuous if it is accompanied by improper threats or assertions. While an unlawful threat 315

317 318

See [6.140]. An intention to deter a litigant was found to exist in Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 and North Australian Aboriginal Legal Aid Service Inc v Bradley (2001) 188 ALR 312. Indeed, the expression “improper pressure” has been described as having “the disadvantage of a degree of imprecision”: Clarkson v The Mandarin Club Ltd [1998] FCA 1685. Melbourne University Students Union Inc (In Liq) v Ray [2006] VSC 205 at [14]. See, eg, Novotny v Cropley [2005] NSWCA 26.

319 320

Melbourne University Students Union Inc (In Liq) v Ray [2006] VSC 205 at [52]-[53]. Timania Pty Ltd v Inghams Enterprises Pty Ltd [2004] FCA 732 at [27].

316

408 [6.550]

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or assertion will almost always be improper, threats or assertions need not be unlawful before they can be improper. 321 For example, it has been held to be improper pressure to undermine whatever sense of security some litigants, thought to be pensioners, had acquired from an undertaking by a third party to protect them, by falsely asserting that it would be impermissible for the third party to finance the legal action and that they might lose their homes in order to meet their liabilities for costs. 322 It is also improper to threaten to publish seriously defamatory material if the litigant continues with his or her action. 323 An assertion by the Chief Minister of the Northern Territory in a press conference that proceedings instituted by an Aboriginal legal aid group were a waste of taxpayers’ money, an attempt to destroy the reputation of the Chief Magistrate and to rip the Northern Territory judicial system apart, were entirely without merit, and were being prosecuted for extraneous and improper reasons in betrayal of the group’s duty to its Aboriginal constituents was held to constitute contemptuous pressure. 324 It is a contempt to improperly interfere with negotiations towards a settlement of a pending suit, as settlement is as much an aspect of the curial process as “combat to the bitter end”. 325 It may be a contempt to threaten a litigant with religious excommunication if (s)he pursues litigation in the civil courts. 326 Finally an allegation made in a radio interview by an industrial advocate for a union that the institution of proceedings by a company was an abuse of the processes of the court was held to be without merit and improper pressure. 327 It was alleged that the company had brought civil proceedings against a union as part of a pre-planned anti-union industrial agenda with the object of destroying the unions involved in a strike by drawing out the legal process in order to deplete their resources, rather than to recover compensation for damages sustained in consequence of wrongful conduct by the unions. Finally, the improper pressure need not be placed by one party on the other; contempt will be made out if a third party intermediary brings improper pressure to bear on a party. 328 Indeed, this is what makes the issue relevant to the media.

Witnesses [6.560] Witnesses play an important role in the trial process. Their testimony assists the court to ascertain the truth and reach a correct decision. Publications that have a tendency to 321 322

Harkianakis v Skalkos (1997) 42 NSWLR 22 at 30. Bhagat v Global Custodians Ltd [2002] NSWCA 160. Note that the case dealt with private pressure, not pressure exerted by means of a publication.

323 324

Resolute Ltd v Warnes [2000] WASCA 359. North Australian Aboriginal Legal Aid Service Inc v Bradley (2001) 188 ALR 312. The vulnerability of the plaintiff played a large part in the court’s decision, as the plaintiff was dependent on the government for its funding. By contrast, the economic strength of a major supermarket operator led the Court to conclude that a media campaign conducted against it by the opposing litigant did not create a real risk that the supermarket would be improperly deterred from pursuing litigation against its competitor: Progressive Enterprises Ltd v North Shore City Council [2006] 2 NZLR 262.

325 326

Harkianakis v Skalkos (1997) 42 NSWLR 22 at 28; Industrial Registrar of New South Wales v The Uniting Church In Australia Property Trust (NSW) [2003] NSWIRComm 387 at [41], [89]. Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd [2003] NSWSC 775 at [31].

327 328

Hamersley Iron Pty Ltd v Lovell [1998] 19 WAR 316. Y & Z v W (2007) 70 NSWLR 377.

[6.560] 409

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interfere with witnesses hamper the court in its performance of this task. The law of sub judice contempt can be employed to protect the administration of justice from this type of interference. There are at least four ways in which a publication can be contemptuous because of its impact on witnesses. First, the same material which is held to have a tendency to prejudice or bias jurors may be held to have a tendency to influence the testimony of witnesses. Examples include the publication of material which disparages an accused person or which prejudges the issues to be decided in a case. 329 Secondly, the publication of a photograph of a person accused of a crime is highly likely to be held to be contemptuous because of its effect on witnesses. 330 Thirdly, a publication that censures a witness for giving evidence or which criticises a witness’ evidence as being unreliable or untrue will be contemptuous if it has a tendency to affect that witness’ evidence, or to make that witness reluctant to give evidence, or to deter potential witnesses from coming forward to testify. 331 Thus it was a contempt to assert that anyone who gave evidence in favour of a certain party would be a perjurer. 332 Finally, the publication of interviews with witnesses in advance of a hearing may amount to a contempt. There are three reasons why this may be so. First, the publication may have a tendency to affect the evidence of the witness whose statements are published. The concern is that the witness might be tempted to embellish his or her account of the facts during the interview. This is particularly likely to occur if the witness has been paid for the interview, especially if the amount is contingent upon the verdict. The perceived interference with the administration of justice arises when the witness subsequently gives testimony at the trial, as the witness must either endorse the embellished account of the facts given in the interview despite the inaccuracies, or recount events as they truly happened, in which case the witness is liable to be cross-examined on any discrepancies and have his or her evidence discredited. An interview with a witness may also have a tendency to distort the memories of other witnesses, causing them to become either more emphatic or more hesitant than they might otherwise have been. Further, an interview may deter potential witnesses from coming forward. This might occur if it conveyed the impression that the testimony of potential witnesses was likely to be regarded as superfluous, unworthy or unbelievable. For these reasons, the New South Wales Court of Appeal at one time imposed a virtual ban on the publication of interviews with witnesses. In Attorney-General (NSW) v Mirror Newspapers Ltd the court held that: The publication of statements by persons likely to be called as witnesses, about the matters in respect of which they will be likely to give evidence is, subject to the de minimis rule, undoubtedly contempt. 333

329

330

In imposing liability, courts obviously assume that, like jurors, witnesses are susceptible to media influence. Whether this is so is discussed in [6.280]. See also New South Wales Law Reform Commission (2000), [4.37]-[4.38]. The publication of photographs is discussed in [6.610]-[6.630].

331

R v Arrowsmith [1950] VLR 78 at 83.

332 333

Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316. Attorney-General (NSW) v Mirror Newspapers Ltd [1980] 1 NSWLR 374 at 387.

410 [6.560]

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In so far as the court held that interviews with witnesses about matters in respect of which they may be called to give evidence necessarily constitutes a contempt, the case is no longer correct. In Civil Aviation Authority v Australian Broadcasting Corporation 334 the New South Wales Court of Appeal stated that the jurisdiction to defend the administration of justice can be invoked only where a court is satisfied beyond reasonable doubt that there is a real and substantial risk of interference with the administration of justice in a particular case. In the context of interviews with witnesses, this means that the court must be satisfied that a publication creates a real or substantial risk that actual or potential witnesses will be deterred from giving evidence or that the content or truth of their evidence will be interfered with in some way. 335 Mere speculation that witnesses will be affected is not sufficient to constitute contempt. 336 A substantial risk of prejudice is less likely to be found if the witness is an expert witness, since expert witnesses are regarded as less susceptible to media publicity. 337 Although the blanket prohibition laid down in Attorney-General (NSW) v Mirror Newspapers Ltd must now be regarded as wrong, the court in the Civil Aviation case appeared to regard the actual decision on the facts as correct. The case therefore serves as an illustration of a publication of an interview with a witness that did in fact create a real risk of interference with the administration of justice. Example

Attorney-General (NSW) v Mirror Newspapers Ltd [6.570] Attorney-General NSW v Mirror Newspapers Ltd [1980] 1 NSWLR 374 A coronial inquest was held into the cause of seven deaths in a fire which broke out in the ghost train at Sydney’s Luna Park. At the inquest, an eyewitness gave evidence that the attendant sent two boys into the ghost train despite being warned that a fire had broken out and despite the protests of the two boys. His evidence was reported in several Sydney newspapers, including The Daily Telegraph, under the headlines “Boys Wept: Car Let Go Into Fire”, “Youth tells of Luna Park Horror” and “Kids Sent into Blaze”. The Daily Telegraph subsequently obtained a doorstep interview with the attendant at his house which was published the following day. The attendant was reported to have shaken his head in disbelief when informed of the eyewitness’ accusations. The article proceeded as follows: He had been accused of sending two crying children into the ghost train after he had been warned it was on fire. … “It makes it sound as if I sent two kids to their death”, he said at his Kirribilli home last night. “It just isn’t so. I even had to wrestle with one young lad who was determined to follow his mates into the fire. I had to

334

Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540.

335

See also Schering Chemicals Ltd v Falkman Ltd [1982] QB 1; Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 at 58-59 (per Gibbs CJ), 103-104 (per Mason J) and 136-137 (per Wilson J).

336 337

Re Coroner’s Court of Western Australia; Ex parte Porteous (2002) 26 WAR 483 at 508. Pickering v Liverpool Daily Post & Echo Newspapers Plc [1991] 2 AC 370 at 425; Re Coroner’s Court of Western Australia; Ex parte Porteous (2002) 26 WAR 483 at 508.

[6.570] 411

Australian Media Law Attorney-General (NSW) v Mirror Newspapers Ltd cont. tear him from the car.” …. (The attendant) said he kept operating the buttons to keep the cars moving through the burning building. “This was the proper procedure”, he said. “If everyone had stayed in the cars instead of getting out no-one would have died.” At the time the attendant gave his conflicting account of the incident to The Daily Telegraph, he had already made a statement to police and was almost certain to be called to give evidence at the inquest. The New South Wales Court of Appeal held that the publication of the attendant’s account was a contempt of the proceedings before the Coroner, as there was a substantial risk that, when called to give evidence, the attendant would be constrained to adhere to the published account in his evidence before the Coroner, whether or not it was true, or be liable to be cross-examined on divergences from it in his evidence. 338 Moreover, other witnesses, having read the publication, might give evidence which was of greater or lesser cogency than, or completely different from, the evidence they might otherwise have given. The court also noted that potential witnesses might think the eyewitness had been belittled in the subsequent report and consequently be afraid that the same fate might befall them if they gave an unrestrained account of the facts.

[6.580] By contrast, the Civil Aviation Authority case provides an example of broadcast interviews with witnesses which were held not to prejudice the administration of justice. Example

Civil Aviation Authority v Australian Broadcasting Corporation [6.590] Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540 On 4 November 1993 the Coroner gave notice that an inquest would be held into a plane crash in New South Wales in which seven people died. The hearing was set down for 1 August 1994. The crash was the subject of a broadcast on the ABC’s Radio National network on 3 April 1994. The broadcast contained interviews with several witnesses who were waiting at the airport for the arrival of the plane. Most of these witnesses simply gave an eyewitness account of what they had seen and experienced on the night of the crash. The New South Wales Court of Appeal held that the publication of these accounts did not amount to a contempt of court. Handley J explained that these witnesses recounted only the bare facts, which it has always been permissible to publish. Kirby P stated that it was difficult to imagine how anything these observers said in the interview could affect the evidence they may give to the Coroner or interfere with the testimony of other witnesses, as none would be required to give evidence regarding the precise

338

The court regarded as irrelevant the fact that the published statement did not differ from the statement made earlier to police.

412 [6.580]

Chapter 6 – Contempt of Court Civil Aviation Authority v Australian Broadcasting Corporation cont. manner and cause of the deaths of the passengers, and none had any involvement with Monarch Airlines (the owner and operator of the aircraft), the Civil Aviation Authority or airline safety. The program also contained interviews with two experts in air safety, both of whom were potential witnesses at the forthcoming inquest. One gave an account of the last moments of the flight and concluded that there were missing and inoperative devices in the plane which may have been responsible for the crash. The other recounted the technical failings of the aircraft and the situation at Monarch. When giving their interviews, both men relied on notes prepared soon after the accident. These notes had been admitted into evidence and were available to the Coroner. The court held that there was no substantial risk that the interviews with these witnesses would interfere with the evidence that they might give to the Coroner. Moreover, there was nothing to suggest that they would even wish to do so. According to Kirby P, these men were unlikely to be susceptible to pressure or distortion in the presentation of their expert findings and opinions. Further, the fact that they relied on written notes suggested to the court that their evidence at the inquest would be consistent with the statements made in the interviews. Any inconsistencies that did emerge would be readily exposed in cross examination. Kirby P and Sheller JA also held that there was no substantial risk that these interviews would interfere with the evidence of other witnesses, most of whom were likely to be expert witnesses who would not be influenced by the broadcasts or be deterred from giving evidence. Finally, the broadcast included commentary by the reporter, who asserted that the technical failings of the plane were a reflection of the general condition of Monarch Airlines. The reporter explained that the Civil Aviation Authority had twice recommended that Monarch’s air operating certificate be suspended, but these recommendations were never acted upon. From these facts he concluded that “there is no doubt that (the Bureau of Air Safety and the Coroner) will lay most of the blame on a company that operated outside the law and an air safety regulator which knew about the breaches and didn’t stop them”. Whilst agreeing that the reporter’s comments would have no effect on the coroner, the court differed as to the potential effect of this conclusion on witnesses who might be listening to the broadcast. Kirby P and Sheller JA readily attributed to such witnesses the ability to distinguish substantiated claims from bald statements of opinion and maintained that they would not slavishly accept the reporter’s conclusions. Handley JA dissented on this point. He held that there was a real likelihood that the program as a whole, but particularly the conclusions drawn by the reporter, could interfere with Monarch employees and Civil Aviation Authority officers who had been concerned in the licensing and maintenance of the aircraft in the weeks preceding the crash. Such persons could be pardoned for thinking that there was an open and shut case against Monarch and the Civil Aviation Authority in relation to the crash. This might deter them from coming forward or influence the content of their evidence if they were

[6.590] 413

Australian Media Law Civil Aviation Authority v Australian Broadcasting Corporation cont. called as witnesses. For this reason, Handley JA concluded that the broadcasts were contemptuous.

[6.600] A comparison of the facts of these two cases provides assistance in determining when the publication of interviews with witnesses will be contemptuous. First, in Mirror Newspapers the interview was published during the inquest, whereas in Civil Aviation Authority the broadcast occurred four months before the inquest. Secondly, Mirror Newspapers involved a doorstep interview with shock allegations which forced the attendant into defending his role and his innocence, whereas in Civil Aviation Authority, no one was placed in this position. Finally, in Mirror Newspapers there were grave inconsistencies between the attendant’s statements and the eyewitness’ evidence, whereas there was no inconsistent testimony in the Civil Aviation Authority case. 339 Other relevant considerations include: whether the witnesses are identified by name, whether they reside in the area in which the material is published and, if the publication is of a sensationalist nature, whether it is likely to be met with a response from the other side that is equally sensational. 340

Photographs or film footage of accused persons [6.610] The media generally regard it as highly desirable for photographs or film footage of an accused person to accompany written reports or spoken commentary on pending proceedings. Nevertheless, a media organisation which publishes a photograph or film footage of an accused person in a context which indicates that he or she has been accused of a crime runs the risk of being found guilty of contempt of court. Whether or not a photograph of an accused person can be published depends on whether the publication of the photograph has a clear tendency, as a matter of practical reality, to interfere with the due course of justice by prejudicing the fair trial of an accused. 341 It has long been recognised that the publication of photographs will be regarded as having this tendency if, at the time of publication, the identity of the accused might come into question in some aspect of the case. 342 There are at least three reasons why the publication of photographs of an accused is likely to interfere with the administration of justice. The first is that the photograph might affect or confuse the recollection of a potential witness on an issue as to identity and thus prejudice the defence. After viewing a photograph, a witness may, quite honestly, displace the mental image of the person he or she saw on a previous occasion with the (perhaps) different image of the person in the photograph. The availability of images on Facebook and other forms of social media are 339 340 341 342

These differences are identified in Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540 at 551-552. Re Coroner’s Court of Western Australia; Ex parte Porteous (2002) 26 WAR 483 at 508. Attorney-General (NSW) v Time Inc Magazine Co Pty Ltd (unreported, NSW Court of Appeal, Gleeson CJ, Sheller and Cole JJA, 15 September 1994). Ex parte Auld; Re Consolidated Press Ltd [1936] SR (NSW) 596 at 598-599 per Jordan CJ; Attorney-General (NSW) v Time Inc Magazine Co Pty Ltd (unreported, NSW Court of Appeal, Kirby P, Handley and Sheller JJA, 7 June 1994); Attorney-General (NSW) v Time Inc Magazine Co Pty Ltd (unreported, NSW Court of Appeal, Gleeson CJ, Sheller and Cole JJA, 15 September 1994).

414 [6.600]

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likely to exacerbate the risk of displacement. 343 The second reason is that the photograph might prejudice the Crown in the presentation of its case against the accused by providing the defence with an opportunity to discredit the evidence of the Crown’s witnesses by suggesting in cross-examination that they have founded the whole of their identification of the accused on the published photograph or footage. 344 Finally, depending upon its nature, the photograph might have a tendency to influence the minds of potential jurors by affording them an opportunity to speculate on the character of the accused. 345 Typically, the media will not be in a position to make an informed judgment at the time the photograph is published, as to whether the identity of the accused might be in issue in the case. The media are not entitled to rule out the possibility of any dispute as to identity simply because the police have given assurances to that effect, or because a journalist has learnt from the police that a confession has been made or fingerprints found. 346 Further, it is no answer to a charge of contempt that the media were given to understand that witnesses had already been shown photographs of the accused. 347 For these reasons, courts have virtually directed the media to assume that identity will be in issue and to refrain from publishing a photograph of an accused person in conjunction with a report relating to the crime. 348 For example, in Attorney-General (NSW) v Time Inc Magazine Co Pty Ltd, the New South Wales Court of Appeal held that the possibility that identity may be in issue can rarely, if ever, be ruled out in a serious charge such as murder, hence photographs will ordinarily carry a real risk of contaminating identification evidence at the trial. 349 Statements by Neasey J in R v Australian Broadcasting Corporation 350 are even more emphatic. In that case it was held that where a person is charged with a crime which is in the ordinary calendar of criminal offences and pleads not guilty, it is always likely, unless some special circumstances clearly indicate otherwise, that a question of identity may arise in some aspect of the case at the trial. 351 Other cases, whilst maintaining a strict approach to the publication of photographs, have emphasised that each case must be judged on its facts. For example, in Attorney-General (NSW) v TCN Channel Nine Pty Ltd the court suggested that where photographs of an accused person have been extensively circulated in the media during a manhunt, the publication of further pictures after the person’s arrest may not amount to contempt. 352

343 344

350

Strauss v Police (2013) 115 SASR 90. Ex parte Auld; Re Consolidated Press Ltd [1936] SR (NSW) 596 at 597 per Jordan CJ; Attorney-General v Noonan [1956] NZLR 1021; Attorney-General (UK) v Associated Newspapers Ltd [2011] EWHC 418 (Admin). R v Australian Broadcasting Corporation [1983] Tas R 161. See [6.390]. Ex parte Auld; Re Consolidated Press Ltd [1936] SR (NSW) 596 at 598; R v Pacini [1956] VLR 544 at 549. Attorney-General (NSW) v Mirror Newspapers Ltd [1962] SR (NSW) 421. R v Pacini [1956] VLR 544 at 549. Attorney-General (NSW) v Time Inc Magazine Co Pty Ltd (unreported, NSW Court of Appeal, Kirby P, Handley and Sheller JJA, 7 June 1994); (unreported, NSW Court of Appeal, Gleeson CJ, Sheller and Cole JJA, 15 September 1994). R v Australian Broadcasting Corporation [1983] Tas R 161.

351 352

R v Australian Broadcasting Corporation [1983] Tas R 161 at 172. Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368 at 381.

345 346 347 348 349

[6.610] 415

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Example

Attorney-General (NSW) v Time Inc Magazine Company Pty Ltd [6.620] Attorney-General (NSW) v Time Inc Magazine Co Pty Ltd (unreported, NSW Court of Appeal, Kirby P, Handley and Sheller JJA, 7 June 1994) (interlocutory injunction); (unreported, NSW Court of Appeal, Gleeson CJ, Sheller and Cole JJA, 15 September 1994) (full hearing); (unreported, NSW Court of Appeal, Gleeson CJ, Sheller and Cole JJA, 21 October 1994) (hearing on penalty). In June 1994, Time Inc published a photograph of Ivan Milat in an edition of Who Weekly. At the time, Ivan Milat had been charged with the murder of seven backpackers found buried in bush graves in the Belanglo State Forest and had indicated through his lawyers that he intended to plead not guilty. Committal proceedings were due to commence approximately two months after the photograph was published. The Attorney-General obtained an interlocutory injunction against the publisher, Time Inc, on the basis that the publication of the photographs had a real tendency to interfere with the fair trial of Milat. At the full hearing, Time Inc relied on the fact that there were no known witnesses who were able to identify Milat in relation to any matter directly relevant to the murder charges and that, owing to the extensive police operations, it was unlikely that further identification witnesses would come forward. 353 However, the New South Wales Court of Appeal held that, at the date of publication, it was impossible to tell whether further Crown witnesses would come forward and what effect the publication might have on their evidence. In this respect, the court said that identity evidence is not restricted to evidence by some person who might claim that he or she saw Milat in the act of killing a person. There were many other ways in which observations made of Milat at various times and places might be relevant to the question of whether he was the killer. Thus at the date of publication, identity was the central issue in the case and there was a real and definite possibility that witnesses with testimony relevant to that issue might come forward at some future time and that their evidence might be contaminated by their having seen the photograph. Special leave to appeal to the High Court was refused.

[6.630] It is common practice, when accused persons are being led from a police vehicle to a court building, for their heads to be covered by an article of clothing. This is done in order to avoid photographs being taken of the accused’s face. Although it is common and, it seems, permissible for the media to publish such photographs or film footage, it has been suggested that it would be better to avoid the display of the accused altogether, as this practice is 353

The two known witnesses who were able to give identification evidence could do so only in relation to charges of attempted murder and attempted robbery. These persons had identified Milat from photographs shown to them by police before the publication of the photograph in Who Weekly, and there was no evidence that they had seen the photographs in Who Weekly. The court found that there was no real risk that their evidence would be contaminated by the publication.

416 [6.620]

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capable of causing viewers, including potential jurors, to wrongly infer that the accused, out of a consciousness of guilt, did not want his or her face to be seen. 354 It would appear that the principles outlined in this section apply to still photographs and television film sequences as, although qualitatively different, the vivid quality and immediate impact of television film footage tends to balance out the potentially enduring nature of a newspaper photograph. 355 It has been suggested that a drawing of an accused person conveys a less precise and realistic impression than a photograph, and that, accordingly, the publication of a drawing may not amount to a contempt. 356

Contemptuous publications: probabilities existing at the time of publication [6.640] In determining whether a publication has a real and definite tendency to interfere with the administration of justice in a particular case, courts look not only at the substance of what is published and the nature of the proceedings liable to be affected, but also at the individual circumstances surrounding the publication. Some of the more important factors which have a bearing on the probable tendency of a publication are discussed in the following paragraphs. However, it must be emphasised that none are determinative. Moreover, the internet is a medium of publication that has its own peculiarities, and courts may need to “adapt the orthodox tests” in order to “address the complexities of the new publishing environment”. 357

Size and location of the readership or audience [6.650] The likelihood that a publication will come to the attention of prospective jurors is an important consideration. The size of the readership or audience to whom the objectionable material is published is therefore significant in assessing the tendency of a publication and circulation or ratings figures will be a relevant inquiry. As a general rule, the smaller the audience, the less likely it is that the material will, as a matter of practical reality, have a prejudicial effect on the administration of justice because it is less likely that it will come to the attention of a juror or witness in the proceeding to which it relates. 358 There are no hard and fast rules as to how large the audience must be before a publication is capable of amounting to a contempt. In Attorney-General (NSW) v Mundey, Hope JA said that although a statement made to a dozen people would normally have little effect upon the administration of justice, the effect may depend upon who those people were. 359 Similarly, while material uploaded on to 354 355 356 357 358 359

Attorney-General (NSW) v Time Inc Magazine Co Pty Ltd (unreported, NSW Court of Appeal, Gleeson CJ, Sheller and Cole JJA, 15 September 1994). R v Australian Broadcasting Corporation [1983] Tas R 161. Attorney-General (NSW) v Time Inc Magazine Co Pty Ltd (unreported, NSW Court of Appeal, Kirby P, Handley and Sheller JJA, 7 June 1994). New Zealand Law Commission: Contempt in Modern New Zealand, Issues Paper 36 (2014) at [4.53]-[4.54]. Attorney-General v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 713. Attorney-General (NSW) v Mundey [1972] 2 NSWLR 887. This case concerned scandalising contempt, but the principles are the same. See also Saltalamacchia v Parsons [2000] VSCA 83 at [10].

[6.650] 417

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the internet may be accessible by anyone with an internet connection, in reality, if the contemptuous material is posted on an obscure website that is not likely to be accessed by many this would be relevant to its tendency, though not to the question of publication. 360 Accordingly, it is appropriate to inquire into the number of persons who actually accessed the material. 361 It is also critical to determine whether the publication circulates or is broadcast in the area from which witnesses or potential jurors are likely to be drawn, 362 although location is likely to be of diminishing relevance in the context of publications on the internet. Evidence to the effect that jurors had or had not encountered the offending material is not decisive, because the court is concerned with the tendency of the publication, not with its actual effect. 363

Form of publication [6.660] In determining whether material has a tendency to prejudice a fair trial, courts take into account the form of the publication, as this will affect its impact on jurors. A publication will be more likely to be held to have the requisite tendency if it is in an arresting form which would be likely to make a deep impression on those who read, saw or heard it. In Attorney-General (NSW) v Willesee, Moffitt JA said of a television broadcast: Where the broadcast is to a wide audience, and in an arresting form, using a medium which attracts verbal and visual attention … the chance that the prohibited matter will come to and be remembered by potential jurors is enhanced. 364

Balanced against the visual impact of television is its ephemeral nature, as compared with the permanent impact of the printed word. When assessing the tendency of newspaper reports, courts consider the location of the allegedly contemptuous material within the newspaper, the size, prominence and sensationalist nature of the headlines, 365 and whether the articles were designed to attract a re-reading because they formed part of a series. 366 As regards the internet, the length of time that material remains accessible online is theoretically unlimited, although the ease with which it can be accessed can impact on its 360 361 362

363 364 365 366

The material would be regarded as published to the public because it is able to be accessed by anyone with an internet connection. The Queen v Hinch [2013] VSC 520 at [95]-[96]. In Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368, Channel Nine argued that since the trial of the accused would probably take place in Wollongong, the broadcast of the material in Sydney was unlikely to be seen by potential jurors. The court rejected this submission, as there was a substantial possibility that the trial would be held in Sydney rather than Wollongong and there was a sufficient possibility that jurors would be taken from the Sydney area and would have seen the Sydney broadcast: at 378. Such evidence would be relevant if a judge was being asked to discharge a jury on the basis of prejudicial material. Attorney-General (NSW) v Willesee [1980] 2 NSWLR 143 at 150-151. See also Solicitor-General (NZ) v Smith [2004] 2 NZLR 540 at [97]. See, for example, Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362 at 365. Attorney-General (NSW) v John Fairfax Publications Pty Ltd [1999] NSWSC 318 at [115]-[116].

418 [6.660]

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tendency to prejudice. For example, archived material which is not foisted upon visitors to a site may lack the requisite tendency to prejudice.

The identity of the maker of the statements [6.670] In Director of Public Prosecutions v Wran 367 the court held that the fact that the comments in question were uttered by the New South Wales Premier in relation to the trial of another public figure, a High Court judge, meant that they were likely to make a very strong and lasting impression on members of the public. 368

Lapse of time between the publication and the proceedings [6.680] The effect of a publication on a reader, listener or viewer depends not only upon its character, but upon the duration of its influence. 369 Courts make allowances for the fact that the memories of jurors and witnesses fade over time. Accordingly, in considering whether a publication has a tendency, as a matter of practical reality, to prejudice jurors and witnesses, courts take into account the probability, as at the date of publication, as to when the trial will be held. 370 If there is a close proximity between the publication and the trial the possibility of prejudice will be increased. Conversely, a lengthy interval between publication and trial may reduce or even eliminate the otherwise prejudicial tendency of a publication. 371 In assessing the capacity of potential jurors to retain impressions over time, allowance is made for the ephemeral character of television images and sounds, as well as for the capacity of jurors to heed the warning of the trial judge to disregard any impressions they may have received from media coverage of the trial. 372 The memory loss that is expected to occur when there is a considerable interval between the publication and the trial may be hastened by the fact that during that period, the minds of readers or viewers would have been exposed to “a daily barrage of other scandalous material aimed at a gallery of figures large in extent and shifting in composition”. 373 The significance of the likely interval between the publication and the trial varies with the circumstances of each case. Thus it is not necessarily the case that the effluxion of time will 367 368 369 370

Director of Public Prosecutions v Wran (1987) 86 FLR 92. The facts of the case are outlined in [6.330]. See also North Australian Aboriginal Legal Aid Services Inc v Bradley (2001) 188 ALR 312 at 332 which concerned comments made by the Chief Minister and Attorney-General of the Northern Territory. Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 699. Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 699, 710-711. See also Attorney-General v News Group Newspapers Ltd [1987] QB 1 at 16; Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 34, 44, 72.

371

Brych v Herald and Weekly Times Ltd [1978] VR 727 at 731. In Waterhouse v Australian Broadcasting Corporation (1986) 6 NSWLR 733, a period of one year was regarded as sufficiently long to dilute the risk of prejudice.

372 373

Waterhouse v Australian Broadcasting Corporation (1986) 6 NSWLR 733 at 735-736. Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 697. See also Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 at 136.

[6.680] 419

Australian Media Law

dilute the prejudicial impact of statements. In Hinch v Attorney-General (Vic), 374 the Full Court of the Victorian Supreme Court held that the trial judge was entitled to find that a contempt had been committed, notwithstanding that the trial would probably not take place for many months, as the statements were so poisonous that their effect would very likely remain ready to be reawakened when evidence at the trial was led. 375 The likely delay between publication and trial is not relevant to contempt by improper pressure on a litigant, as such pressure is capable of diverting a litigant at any stage of the proceedings. 376 The advent of the internet has reduced the significance of a delay between publication and trial, since information that is archived on the internet is able to be retrieved for long periods of time.

The relevance of other prejudicial publications [6.690] The fact that prejudicial statements have already been published in the media is not a defence to a charge of contempt. 377 Otherwise, the law would be effectively withdrawing its protection from accused persons who attract a large amount of media publicity. 378 However, the existence of other publications may be a material circumstance when considering the practical tendency of the publication in question, as the plethora of media reporting of newsworthy events undoubtedly has an effect upon the extent to which a particular publication may affect a reader or viewer. 379 Judges have differed over the degree of significance to be accorded to the existence of previous publications. In Director of Public Prosecutions v Wran, the existence of other publications was held to have no mitigating effect at all. There the court stated that even if, in a quantitative sense, Mr Wran’s statements concerning Justice Murphy were “as a snowflake in a furnace” (owing to the plethora of media reports which had discussed Justice Murphy’s guilt or innocence), because of Mr Wran’s position as Premier, qualitatively, the tendency of his statement was not materially affected by other media publicity. Other cases take the middle ground, suggesting that, although relevant, the existence of other publications does not greatly mitigate the offence, otherwise the seriousness of sub judice contempt would be diminished in proportion to the number of people who committed it. 380 At the other extreme, some cases take the view that where information 374 375

376 377

378 379 380

Hinch v Attorney-General (Vic) [1987] VR 721. The facts of the case are outlined in [6.740]. In the High Court, Toohey J agreed that the considerable lapse of time was outweighed by the unusual features of the case, namely, the dramatic impact of references to a Catholic priest facing charges involving young persons, the size of the listening audience (200,000) and the fact that about half the audience lived in the area from which jurors were likely to be drawn: Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 72-74. See also Director of Public Prosecutions v Francis (2006) 95 SASR 302; [2006] SASC 211 at [51]; R v The Age Company Ltd [2006] VSC 479 at [16]. Harkianakis v Skalkos (1997) 42 NSWLR 22 at 29. Director of Public Prosecutions v Wran (1987) 86 FLR 92 at 104. See also Attorney-General v News Group Newspapers Ltd [1987] QB 1 at 11; Solicitor-General (NZ) v W & H Specialist Publications Ltd [2003] 3 NZLR 12 at [29]. New South Wales Law Reform Commission (2000), [4.107]. Attorney-General (NSW) v Willesee [1980] 2 NSWLR 143 at 159; Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 711; Director of Public Prosecutions v Wran (1987) 86 FLR 92 at 104. Attorney-General (NSW) v Willesee [1980] 2 NSWLR 143 at 159.

420 [6.690]

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about a case has already been extensively published, the influence of a subsequent publication can become merged in the effect of previous publications, making it difficult to single out any one publication as contemptuous. 381 In the words of Miller, it is more an instance of “collective guilt” with a consequent “safety in numbers”. 382 Nevertheless, one judge was prepared to accept that a publication can be contemptuous, even though the information in it has been published before, if it gathers together for the first time pieces of information that have been previously published separately in such a way as to produce a dramatic and persevering effect upon jurors. 383 A more nuanced approach was taken in The Queen v Hinch, where Kaye J held that in determining the practical tendency of a particular publication, a distinction must be drawn between other prejudicial material published about the accused before the proceeding became sub judice and prejudicial material published after it commenced. 384 The court should take into account the effect of other prejudicial matter published before the date of the criminal charges, but not prejudicial material published thereafter. 385 However, His Honour held that it is permissible to take into account “other material published after the laying of the charge against the accused, which did not constitute contempt, in order to determine the practical tendency of the particular publication to prejudice the fair trial of the charges against the accused”. 386 Attorney-General (NSW) v John Fairfax & Sons Ltd is one of the few cases in which the publication of prejudicial material before the date of the charge led the court to conclude that the article in question was not contemptuous. 387 A further example is R v Herald and Weekly Times Ltd. 388 In that case, the Victorian Supreme Court was concerned with two articles that referred to Bandali Debs as a “cop killer” and “police killer”, which were references to Debs’ prior convictions for the murder of two police officers. The two articles were published while proceedings were pending against Debs for a third murder, which had occurred shortly before the two police murders. Although Smith J was at pains to emphasise that it will almost always be a sub judice contempt to publish an accused person’s prior convictions, His Honour was not satisfied beyond reasonable doubt that the articles had the requisite tendency to prejudice any trial of Debs for the third murder. Smith J attributed the atypical nature of his conclusion to the very unusual fact situation, namely, the notoriety of Debs as a convicted police killer. Smith J found that the articles in question carried no greater risk of prejudice than already existed as a result of the impact of past extensive, lawful publicity over several years which 381

Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) 5 BR 10 at 20.

382 383

Miller (3rd ed, 2000), [5.89]. Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) 5 BR 10. In Attorney-General (UK) v MGN Ltd [1997] 1 All ER 456 at 460 Lord Justice Schiemann stated that the mere fact that earlier publications have already created a degree of prejudice does not mean that a later publication cannot create a further risk. The Queen v Hinch [2013] VSC 520. The Queen v Hinch [2013] VSC 520 at [94].

384 385 386 387

388

The Queen v Hinch [2013] VSC 520 at [94]. Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695. See also Attorney-General (UK) v MGN Ltd (1997) 1 All ER 456, where it was held that the newspaper articles in question did not create any greater risk of serious prejudice than that which had already been created by publications during the years prior to the accused being arrested and charged. R v The Herald and Weekly Times Ltd [2007] VSC 482.

[6.690] 421

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had referred to Debs as a police killer and which had linked the police killings with the third murder. Thus the jury would already know that Debs had been found guilty of the two police murders.

Irrelevant factors [6.700] It is equally clear that at least three factors are not relevant to an assessment of whether a particular publication has a tendency to interfere with the administration of justice in a particular case. The first is the truth of the published statements. 389 The second is the strength of the police case against an accused whose trial has arguably been prejudiced by a publication. This is irrelevant because an accused person’s right to a fair trial and the public interest in the observance of the processes of the criminal justice system do not wax and wane with the weakness or strength of the defence case. 390 Therefore, the fact that the police case against an accused is very strong does not mean that the rules of contempt apply with less rigour or that the media are entitled to publish more liberally. Otherwise, trial by media would supersede trial according to law. 391 Finally, the fact that police officers have provided the media with the contemptuous information does not absolve the media from responsibility for what is published. 392 Nor are the police immune from liability. 393

Publication of matters of public interest [6.710] The fact that a publication will not amount to a contempt unless a court is satisfied beyond reasonable doubt that it has a real tendency to prejudice the administration of justice in pending proceedings ensures that the contempt power is invoked only in serious cases. This has the result that a proper balance is struck between the public interest in fair trials and the public interest in freedom of speech. However, where there is no intention to prejudice a fair trial, the rule that the publication of material which has the requisite tendency to prejudice proceedings constitutes contempt is not invariable. In certain circumstances, the public interest in the administration of justice will yield to the public interest in the discussion of public affairs, with the result that a publication which would otherwise be contemptuous is held to be lawful. This principle has its genesis in a celebrated passage of Jordan CJ in Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd: It is of extreme public interest that no conduct should be permitted which is likely to prevent a litigant in a court of justice from having his case tried free from all matter of prejudice. But the administration of justice, important though it undoubtedly is, is not the only matter in which the public is vitally interested; and if in the course of the ventilation of a question of public concern matter is published which may prejudice a party in the conduct of a law suit, it does not follow that a contempt has been committed. The case may be one in which as between competing matters of public interest the possibility of prejudice to a litigant may be required to yield to other 389 390 391

Skipworth’s case (1873) LR 9 QB 230 at 234; R v Saxon, Hadfield & Western Mail Ltd [1984] WAR 283 at 291; Director of Public Prosecutions v Australian Broadcasting Corporation (1987) 86 FLR 153 at 163. Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368 at 382. John Fairfax Publications Pty Ltd v Doe (1994) 37 NSWLR 81 at 106.

392 393

R v Pacini [1956] VLR 544 at 547-548. Attorney-General (NSW) v Dean (1990) 20 NSWLR 650.

422 [6.700]

Chapter 6 – Contempt of Court and superior considerations. The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or the denunciation may, as an incidental but not intended by-product, cause some likelihood of prejudice to a person who happens at the time to be a litigant. It is well settled that a person cannot be prevented by process of contempt from continuing to discuss publicly a matter which may fairly be regarded as one of public interest, by reason merely of the fact that the matter in question has become the subject of litigation … 394

Subsequent cases have endorsed this principle and regard it as capable of applying to all forms of sub judice contempt, including contempt by improper pressure on litigants. 395 However, courts have disagreed on the manner and circumstances in which the principle operates. Until the High Court decision in Hinch v Attorney-General (Vic) 396 there were two views as to how the principle should be applied: a “normative view” and a “balancing view”. 397

Normative approach [6.720] Under a normative approach, the passage of Jordan CJ is treated as the enunciation of an inflexible principle of law. The task of the courts is to mechanically apply the principle to the facts of the case. To take advantage of the protection afforded by the principle, the subject matter of the published material must involve the discussion of public affairs or an issue of public concern which pre-dates the pending proceedings. If the subject matter of the publication can be characterised as a matter of pre-existing public concern, then debate on that issue can continue despite the supervening litigation provided that any likelihood of prejudice to the pending proceedings is shown to be an incidental and unintended by-product of that discussion. If, on the other hand, the court finds that the pending proceedings represent the actual subject matter of, or the immediate occasion for, the publication of the material, the Bread Manufacturers principle will not apply. The test therefore fails to recognise that the very issues raised in the pending litigation can be matters of public concern. Under the normative approach, the balancing of the competing public interests in the administration of justice and in freedom of speech is done by the law in formulating the principle to be applied. 398 If the test is satisfied, a court must conclude that no contempt has been committed, notwithstanding that the publication has a tendency to prejudice the pending proceedings. The court has no discretion to weigh one interest against the other and to make a judgment as to whether a contempt has been committed.

394 395

Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd [1937] 37 SR (NSW) 242 at 249-250. Harkianakis v Skalkos (1997) 42 NSWLR 22 at 30; North Australian Aboriginal Legal Aid Services Inc v Bradley (2001) 188 ALR 312; Industrial Registrar of New South Wales v The Uniting Church in Australia Property Trust (NSW) [2003] NSWIRComm 387; Solicitor-General v Smith [2004] 2 NZLR 540.

396 397

Hinch v Attorney-General (Vic) (1987) 164 CLR 15. These descriptive labels come from the judgment of Priestley JA in Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650 at 682-683. See also: Rich (2010) 15 Media and Arts Law Review 361 at 362-5. Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 at 60 per Gibbs CJ.

398

[6.720] 423

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Attorney-General (NSW) v Willesee 399 serves as an illustration of a case where the court applied a normative approach and held that, on the facts, the Bread Manufacturers principle did not apply. The facts of that case are set out in [6.480]. It was argued that the subject matter of the broadcast in question dealt with a matter of pre-existing public interest, namely, the administration of prisons in New South Wales at large and in particular, the dissatisfaction of prison warders about their safety. The argument was rejected. The majority characterised the subject matter of the broadcast as the course of events following the death of the warder and the resulting strike. This was not a matter of pre-existing public controversy; it was the subject of pending proceedings. Moreover, the publication of the information regarding the accused was not incidental to the subject of the broadcast.

Balancing approach [6.730] In Hinch v Attorney-General (Vic) the High Court rejected the normative approach in favour of a balancing approach. 400 The court held that in determining whether a contempt has been committed, the court must balance the public interest in protecting the administration of justice against other competing public interests. Where the public interest in the administration of justice does not yield to a superior public interest, the balancing approach will protect the administration of justice from any substantial risk of interference. Unlike the normative approach, where the court simply applies the principles articulated by Jordan CJ to the facts of the case, a balancing approach requires the court to weigh the competing public interests and make a judgment as to which one should prevail. Before this can be done, the court must identify the exact nature of the public interest which is claimed to outweigh the public interest in the administration of justice. Although courts have refused to define the possible countervailing public interest considerations in advance of a case, claiming that it is neither practical or desirable to do so, 401 it is clear that they can include the ventilation of a question of public concern, the discussion of public affairs and the denunciation of public abuses. Example

Hinch v Attorney-General (Vic) [6.740] Hinch v Attorney-General (Vic) [1987] VR 721; (1987) 164 CLR 15 Radio presenter Derryn Hinch made three broadcasts on Melbourne radio station 3AW while charges of child molestation were pending against Glennon, an ordained

399 400

401

Attorney-General (NSW) v Willesee [1980] 2 NSWLR 143. Hinch v Attorney-General (Vic) (1987) 164 CLR 15. A balancing approach had previously been endorsed by some members of the High Court in Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 at 74-75 (per Stephen J), 95 (per Mason J), 133-134 (per Wilson J). A balancing approach has since been routinely applied: Director of Public Prosecutions v United Telecasters Sydney (1992) 7 BR 364; R v Sun Newspapers Pty Ltd (1992) 58 A Crim R 281; John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81; R v Western Australian Newspapers Pty Ltd (1996) 16 WAR 518; R v Nationwide News (1997) 94 A Crim R 57; Attorney-General (NSW) v X (2000) 49 NSWLR 653. Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 53.

424 [6.730]

Chapter 6 – Contempt of Court Hinch v Attorney-General (Vic) cont. Roman Catholic priest. Over a period of three years preceding the broadcasts in question, Hinch had been concerned about the social problem of child molestation and had discussed it on his program from time to time. He was particularly concerned with what he regarded as a lack of action in regard to child molestation springing both from the low incidence of reporting of such conduct and from an unwillingness on the part of the community to engage in open discussion about it. In each of the three broadcasts, Hinch identified Glennon by name as the person charged and revealed that Glennon had been a priest and that he had previously been charged and, in some cases, convicted of sexual offences against children and jailed. 402 Glennon was the director of the Peaceful Hand Youth Foundation, a non-profit organisation which brought him into contact with children. Hinch repeatedly asked how it was that Glennon continued to run the Foundation having regard to his criminal record involving juveniles and the current charges against him. He posed the question: “how many other children may have been involved? How many other children may have been too scared over the years to come forward?”, thus suggesting that Glennon was guilty of offences which had never come to light. Hinch also described Glennon in terms calculated to arouse hostility and contempt. For example, he was accused of being a poacher in the sanctuary, that is, of using his position as a priest to gratify his sexual desires. Hinch argued that the public interest in the administration of justice was outweighed by a countervailing public interest, namely, the public interest in disseminating information on the subject of child abuse and in alerting parents of young children who may have been involved in the Foundation that persons convicted or charged with sexual offences against young people were occupying positions of authority in the Foundation. The High Court rejected this argument. The court found that the broadcasts constituted a contempt because they disclosed Glennon’s prior convictions, suggested that Glennon had committed offences which had never been properly investigated, and contained thinly veiled assertions that he was guilty of the offences he had been charged with. This created a real risk of prejudice to the accused’s fair trial by affecting potential jurors, which was not outweighed by any countervailing public interest.

Features of the balancing approach [6.750] A number of points can be made as to how the balancing approach operates. The first is that if there exists an intention to interfere with the administration of justice, the balancing exercise is not undertaken at all. 403 Secondly, the balancing of the competing public interests is carried out on a case by case basis when the court is determining whether or not a contempt has been committed, not when the court is considering whether a contempt should

402

Revelation of an accused person’s prior convictions is a contempt: see [6.470]-[6.490].

403

Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 40, 43, 52-53, 66-67, 85; Attorney-General (NSW) v X (2000) 49 NSWLR 653 at 686 per Mason P (Spigelman CJ and Priestley JA not deciding). See also: Registrar, Court of Appeal v Collins [1982] 1 NSWLR 682 at 696. It has been suggested that in light of the fact that Hinch’s third broadcast took place after contempt proceedings had been instituted against him, Hinch might be said to have had an intention to prejudice Glennon’s trial. Nevertheless, a balancing approach was

[6.750] 425

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be punished. 404 It is also clear that the balancing principle is not applied unless the court first makes a finding that the publication in question has, as a matter of practical reality, a clear tendency to prejudice proceedings. It is only if the publication has this tendency that the court proceeds to consider whether it will be excused from being treated as contemptuous because the public interest in protecting the due administration of justice is outweighed by a superior public interest. 405 Thirdly, the principle applies to both criminal and civil proceedings. Each member of the Hinch court denied that there was any reason in principle or logic to confine the Bread Manufacturers principle to civil proceedings, as the competing considerations which the principle attempts to reconcile – the right to a fair trial and the public’s right to be informed – apply to all proceedings. However, the nature of the pending proceedings which the publication has a tendency to prejudice is an important and sometimes decisive factor in the weighing of the competing public interests. 406 Prejudice to pending criminal proceedings is far less likely to be outweighed by a countervailing public interest. Fourthly, all types of interference with the administration of justice have the potential to attract the public interest defence. A suggestion by Mason P in Attorney-General (NSW) v X 407 that where the relevant interference with a criminal proceeding consists of an implication of guilt, a suggestion of guilt or the canvassing of matters directly related to guilt, the interference is not capable in law of being justified by reference to the balancing process was not accepted by the majority. Rather, the majority held that in every case the balancing exercise is a free standing value judgment for the judge. There are no circumstances in which the common law itself does the balancing through the formulation of a fixed rule which predetermines the outcome. 408 As noted in [6.710], there is scope for the principle to operate in the context of improper pressure against the parties. In Harkianakis v Skalkos, Mason P was prepared to accept that the public interest in the discussion of public affairs and the denunciation of public abuses may countenance castigation by the alleged defamer of the manner in which a plaintiff has conducted herself or himself in the pending defamation proceedings. 409 Fifthly, in light of the fact that contempt of court is a criminal offence, the criminal onus of proof applies. The court must be satisfied beyond reasonable doubt that the countervailing public interest outweighs the possible prejudice to the due administration of justice. Sixthly, the balancing principle is not a legal defence to a charge of contempt, although it is commonly referred to as such. Accordingly, the onus of proving that some countervailing public interest outweighs the public interest in the due administration of justice does not shift to the alleged

404 405 406 407 408

409

undertaken by the High Court: New South Wales Law Reform Commission (2000), [8.18]. In New Zealand, to establish a defence of public interest it is necessary to show that there was an absence of an intention to interfere with the administration of justice: Solicitor-General v Smith [2004] 2 NZLR 540 at [68]. In Hinch v Attorney-General (Vic) (1987) 164 CLR 15 Wilson J dissented on this point. Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) 5 BR 10 at 20. Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) 5 BR 10 at 49. Attorney-General (NSW) v X (2000) 49 NSWLR 653. Spigelman J suggested that any such predetermined balance in favour of the administration of justice might infringe the implied freedom of political communication: Attorney-General (NSW) v X (2000) 49 NSWLR 653 at 675-6. Harkianakis v Skalkos (1997) 42 NSWLR 22 at 30-31.

426 [6.750]

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contemnor. Rather, the prosecution must negate the defence. 410 Finally, the fact that a publication is made in breach of a statute disarms what might otherwise have been a successful reliance on the Bread Manufacturers principle, as the fact that Parliament has rendered publication of certain material illegal means that it has already determined that different values should prevail. 411 Where does the Hinch decision leave the seminal passage of Jordan CJ? It would appear that the statement must now be regarded as an example of a situation where the public interest in freedom of expression will outweigh the public interest in the administration of justice, rather than as rigid criteria the presence of which will automatically lead to a conclusion. Accordingly, a finding that prejudice to pending litigation is an incidental and unintended by-product of a discussion does not automatically mean that no finding of contempt can be made. Conversely, a finding that prejudice to pending litigation is not an incidental and unintended by-product does not necessarily mean that the publication is contemptuous. 412 It is simply one of the factors to which regard will be had in carrying out the balancing exercise. Furthermore, it is no longer a requirement that only a pre-existing public controversy can exonerate a prejudicial publication; the public interest in the free discussion of an issue which arises after proceedings have commenced can outweigh prejudice to those proceedings. The discussion can even be prompted by, and refer to the case itself if there is a clear justification for such discussion. Conversely, the fact that the published material continues a pre-existing public controversy no longer guarantees that the publisher is protected from liability. One of the criticisms levelled at the balancing approach is its uncertainty. It is extremely difficult for the media to predict what weight the courts will give to the competing public interests in given situations. 413 This has prompted recommendations that the test be tightened up. 414 However, it is possible to make some broad generalisations as to where the balance will lie in particular instances. It is clear that the public interest in the administration of justice will defer to the public interest in freedom of communication in the context of reports of proceedings of courts and parliaments. 415 The High Court has indicated that this will also be the case where the discussion relates to matters of extreme public importance, for example, a major constitutional crisis or an imminent threat of nuclear disaster. 416 Further, where a discussion centres on general issues and references to the litigation are merely incidental, there is less likely to be a real risk of prejudice to litigation, and more likely that the balance 410

John Fairfax Publications Pty Ltd v Attorney-General (NSW) [2000] NSWCA 198 at [136]; Attorney-General (NSW) v X (2000) 49 NSWLR 653 at 685; North Australian Aboriginal Legal Aid Services Inc v Bradley (2001) 188 ALR 312 at 323.

411 412 413

John Fairfax Publications Pty Ltd v Doe (1994) 37 NSWLR 81. Attorney-General (NSW) v X (2000) 49 NSWLR 653 at 686-7. Cram (2002), p 110; Z Rich, “The Past and Future of Australian Sub Judice Contempt: A Historically Contingent Rhetoric, a Modern Age Threat and the Lessons to be Learned from the United States” (2010) 15 Media and Arts Law Review 361 at 370. New South Wales Law Reform Commission (2003), [8.44]-[8.52]. The Commission also recommended that public safety be added as a ground of exoneration.

414 415 416

See [6.760]. Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 26 per Mason CJ.

[6.750] 427

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will come down in favour of freedom of discussion. Conversely, the balance is likely to come down on the side of the public interest in the administration of justice where references to the subject matter of the litigation are central to the topic of public discussion, as in this case the risk of serious prejudice will be strong. 417 However, only Deane J has gone so far as to state that where a publication is directed solely to the merits of the very issue to be decided in the pending proceedings –- for example, the guilt or innocence of an accused in criminal proceedings – there will never be a countervailing interest. 418 The other judges in Hinch all accepted the possibility that a direct discussion of a criminal case could be justified by the operation of the public interest principle, although they failed to identify any precise circumstances in which a publication directed solely to the merits of a case might be exonerated. 419 Indeed, the public interest defence has never been successfully applied to a publication which has specifically discussed the merits of a pending criminal trial. However, the court came very close to permitting this to occur in Attorney-General (NSW) v John Fairfax Publications Pty Ltd. 420 That case concerned a publication which contained seriously prejudicial statements which gave rise to an implication of guilt of a person who was facing trial for serious drug offences. The accused was referred to as the “Mr Big” of the drug trade, as “a drug dealer”, “the top heroin distributor” and “the current drug czar”, leading Barr J to state that “there could scarcely be more prejudicial statements than those contained in the articles”. Nevertheless, Barr J held that the article dealt with substantial matters of public interest, namely, the changes in control of the drug trade in Sydney. Barr J proceeded to find that the detriment to the trial was outweighed by the public interest in freedom of communication because the pending charges against the accused were not discussed in detail. Thus the article was exonerated. On appeal, the majority characterised the articles as having “directly trenched upon” the accused’s guilt, but held that it was open to Barr J to find that the balance came down in favour of freedom of communication. 421

Reports of judicial proceedings [6.760] The publication of a report of proceedings that have already taken place in open court may have a tendency to prejudice one of the parties to those or other proceedings. The most obvious example is the publication of an account of a bail hearing or committal proceedings. If reported, elements in the Crown case might have a strong tendency to induce readers and viewers to conclude that the accused is guilty of the offences with which he or she is charged. Such a report has a “special capacity to influence the minds of potential jurors 417

419

Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368 at 384; The Queen v Hinch [2013] VSC 520 at [120]. Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 52. See also Director of Public Prosecutions v Wran (1987) 86 FLR 92 at 104. New South Wales Law Reform Commission (2000), [8.20].

420

Attorney-General (NSW) v John Fairfax Publications Pty Ltd [1999] NSWSC 318.

421

Attorney-General (NSW) v X (2000) 49 NSWLR 653. The case is discussed in M Wigney, “Attorney-General for the State of NSW v X; John Fairfax Publications Pty Ltd v Attorney General for the State of NSW” (2001) 6(2) Media and Arts Law Review 145; F Robinson, “”No, No! Sentence First – Verdict Afterwards”: Freedom of the Press and Contempt by Publication in Attorney-General for the State of New South Wales v X” (2001) 23 Sydney Law Review 261.

418

428 [6.760]

Chapter 6 – Contempt of Court

because the evidence is directed to the very issues which will arise at the trial and the evidence led may include evidence not admissible at the subsequent trial”. 422 For example, any prior convictions of the accused will be revealed at a bail hearing. A report of judicial proceedings may also prejudice a litigant where a number of charges are pending against that litigant which are to be tried separately. For example, if an accused person is awaiting trial for murder and in the meantime is found guilty of assault, a report of the accused’s conviction for assault may prejudice his or her fair trial on the murder charge, especially if evidence led at the first trial is published immediately before or during the currency of the murder trial. It is also possible that a report of one person’s trial might contain information which is prejudicial to the pending trials of other persons. 423 The question arises whether the law of sub judice contempt inhibits the reporting of what has taken place in open court, or whether such reports can be published, notwithstanding that they have a tendency to prejudice the fair trial of a person? The answer is that reports of judicial proceedings can be published. The reasons are twofold. First, reports of judicial proceedings give effect to the public interest in freedom of communication. Court proceedings are public affairs and it is in the public interest that reports of what takes place in the courts are disseminated to the public. In this sense, the freedom to publish accounts of judicial proceedings notwithstanding their prejudicial tendencies is an example of a situation in which the public interest in the administration of justice yields to the public interest in freedom of communication. However, there is also a sense in which the publication of reports of judicial proceedings advances, rather than conflicts with, the wider interests of the administration of justice. 424 As explained in Chapter 5, it is considered that the administration of justice is best served by the principle of open justice. However, in recognition of the fact that very few members of the public are in a position to take advantage of their right to attend court, the principle of open justice is further advanced by allowing those who choose to exercise this right to communicate to the public an account of the proceedings they have witnessed. Indeed it is regarded as being of extreme public importance that information about court proceedings is placed at the disposal of the public. 425 The publication of reports of judicial proceedings that have a tendency to prejudice the same or other court proceedings will be protected from the law of contempt only if they satisfy certain conditions. The first is that the report must answer the description of a report of proceedings, that is, it must be confined to an account of the evidence and the submissions based on the evidence and other public events in the proceedings. 426 A comment on the proceedings is not a report. 427 The report need not be a complete verbatim account of what 422 423 424 425 426 427

Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 25 per Mason CJ. R v Sun Newspapers Pty Ltd (1992) 58 A Crim R 281; R v Tayyab Sheikh [2004] NSWCCA 38. Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 26. Ex parte Terrill; Re Consolidated Press Ltd [1937] SR (NSW) 255 at 257. Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 25 per Mason CJ; R v Sun Newspapers Pty Ltd (1992) 58 A Crim R 281 at 287. Packer v Peacock (1912) 13 CLR 577 at 587. Prejudicial comment would need to satisfy the wider public interest justification if it is to be excused.

[6.760] 429

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transpired in court; a fair abridgment or summary is acceptable. 428 Secondly, the report must be a report of what has taken place in open court. A report will not be protected if it discloses information that was revealed in court in the absence of the jury before the jury has delivered its verdict. 429 It is unclear whether a report of prejudicial material which is contained in a document involved in court proceedings but not actually mentioned in open court would be protected by the principle. 430 Thirdly, the report must not be published in violation of a statute 431 or court order 432 which prohibits or restricts the publication of information. Fourthly, the published account must be accurate and fair. 433 In assessing fairness, courts bear in mind the likelihood that the report will have been prepared by a journalist, not a trained lawyer. Accordingly, no exception will be taken to the report by reason only of the fact that if the journalist had possessed technical legal knowledge, he or she might have made amplifications or modifications. 434 The test is whether the report is “one which a person of ordinary intelligence using reasonable care might reasonably regard as giving a fair summary of the proceedings”. 435 An unfair report is one which is partial or biased, or which represents something to have occurred that did not occur, or which withholds material facts that would put a different complexion on the facts truly reported, or which stresses unfavourable aspects of the proceedings. 436 The publication of a statement made out of court by a witness which would have been inadmissible had it been made in court cannot constitute a fair and accurate report of proceedings. 437 The fact that a reporter believed the statement to be a fair and accurate report of his or her impressions of the evidence is irrelevant. 438 Fifthly, the report 428 429 430

Ex parte Terrill; Re Consolidated Press Ltd [1937] SR (NSW) 255 at 259. Ex parte Terrill; Re Consolidated Press Ltd [1937] SR (NSW) 255 at 258; R v Day & Thomson [1985] VR 261. New South Wales Law Reform Commission (2000), [9.7].

431

For example, Tasmania has statutory restrictions on the reporting of details of bail applications: Justices Act 1959 (Tas), s 37A. Non-publication orders are discussed in Chapter 5. Judges who do not have statutory power to make a non-publication order in a particular case and who are uncertain as to the extent of their common law power to make non-publication orders may simply request the media not to report certain matters: M Chesterman, “Criminal Trial Juries and Media Reporting” (2004-5) 85 Reform 23. Ex parte Terrill; Re Consolidated Press Ltd [1937] SR (NSW) 255 at 259. See also R v Gray (1865) 10 Cox CC 184; R v Evening News; Ex parte Hobbs [1925] 2 KB 158; R v Kray (1969) 53 Cr App R 412; R v Sun Newspapers Pty Ltd (1992) 58 A Crim R 281. Ex parte Terrill; Re Consolidated Press Ltd [1937] SR (NSW) 255 at 259. Ex parte Terrill; Re Consolidated Press Ltd [1937] SR (NSW) 255 at 259, cited with approval in Attorney-General (Qld) v WIN Television Qld Pty Ltd [2003] QSC 157 at [9]. Ex parte Terrill; Re Consolidated Press Ltd [1937] SR (NSW) 255 at 259. A fair report has also been described as a “colourless report”: Minister for Justice v West Australian Newspapers Ltd [1970] WAR 202 at 207. In R v Herald and Weekly Times [2007] VSC 482, the court held that a fair report of Bandali Debs’ committal proceeding for the murder of Kristy Harty did not warrant any reference to the fact of Debs’ convictions for the murders of two police officers years earlier, notwithstanding that these convictions were mentioned in the committal proceeding. This is because they had no bearing on the case or its outcome and received only passing reference in the hearing, yet they dominated the report. Accordingly, the report was not fair and accurate. Ultimately this did not matter as the articles in question were found not to have the requisite tendency to prejudice, for the reasons explained in [6.690]. R v Pearce (1992) 7 WAR 395 at 426-427. R v Pearce (1992) 7 WAR 395 at 427.

432

433

434 435 436

437 438

430 [6.760]

Chapter 6 – Contempt of Court

must be published in good faith and without malice. 439 A report is not published in good faith if it is published for its news value in complete and serious disregard of its consequences on the trial of an accused. 440 Finally, the publication of the report must be reasonably contemporaneous with the proceedings. 441 In one case, it was held that a report of committal proceedings which had taken place a year earlier could not be published at the time of the trial. 442 It has also been suggested that, just as it is permissible to publish a fair and accurate report of court proceedings, it is not a contempt of court to publish a fair and accurate report of parliamentary proceedings in which pending proceedings are discussed, even if the report has a practical tendency to interfere with the administration of justice in those proceedings. 443

Stop writs [6.770] The law of sub judice contempt has the potential to be abused by a person who wants to avoid exposure by the media. A person in this position can issue a writ for a defamation action and then seek an injunction to restrain further adverse media comment on the ground that any further comment would interfere with the fair trial of the pending defamation action and thus constitute a contempt. If a court is satisfied that the defamation proceedings were instituted with the sole object of providing the person with a legal basis for seeking immunity from further adverse media comment, the injunction will not be granted. Moreover, if a court is satisfied that the pending proceedings are not genuine, that is, that the plaintiff has no intention of proceeding to trial, any material actually published will not amount to a contempt. 444 Accordingly, a gagging writ ought to have no effect. 445

Constitutional protection of free political communication [6.780] The constitutional protection of political communication has been described in Chapter 2. The issue which must be addressed at this point is how far, if at all, the constitutional protection will impact on the law of sub judice contempt. A most fundamental consideration is whether “sub judice speech” is within the scope of the speech protected by the implied freedom. This depends on whether it can be described as political discourse. Wide definitions of political speech were espoused by the High Court in the years immediately 439

Ex parte Terrill; Re Consolidated Press Ltd [1937] SR (NSW) 255 at 257.

440 441

R v Scott & Downland Publications Ltd [1972] VR 663. Minister for Justice v West Australian Newspapers Ltd [1970] WAR 202 at 207; R v Scott & Downland Publications Ltd [1972] VR 663; Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 at 132 per Wilson J. R v Scott & Downland Publications Ltd [1972] VR 663. A lack of contemporaneity may indicate a lack of good faith. Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 714; Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 25, 26, 83. This scenario is unlikely to arise as most parliaments adhere to a convention that pending proceedings will not be discussed: see [4.40]. R v Editor of the Daily Mail; Ex parte Factor (1928) 44 TLR 303 at 306-307; Harkianakis v Skalkos (1997) 42 NSWLR 22 at 64-65. John Fairfax & Sons Ltd v McRae (1955) 93 CLR 351 at 370-371; Attorney-General v Times Newspapers Ltd [1974] AC 273 at 301.

442 443

444 445

[6.780] 431

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following its recognition in 1992. However, in Lange v Australian Broadcasting Corporation the concept was reined in and tied to those provisions of the Constitution from which the implied freedom is derived. 446 These provisions concern representative and responsible government, which pertain primarily to the legislative and executive arms of government. Accordingly, discussion of the judiciary will be covered by the implied freedom only if a sufficient nexus can be shown between the communication in question and the constitutional provisions from which the implied freedom is drawn. 447 Whether a sufficient nexus exists in any given case is a matter over which judges have disagreed. 448 Even if sub judice speech does constitute political speech, the High Court has consistently maintained that the constitutional protection is neither absolute nor unconditional, but must be balanced against other legitimate and competing public interests, including prohibitions which are necessary for the proper functioning of an ordered society. This means that in some circumstances legislation or common law doctrines can legitimately burden or curtail political discussion provided the law is reasonably and appropriately adapted to serve a legitimate end in a manner which is compatible with the maintenance of the system of government prescribed by the Constitution. The law of contempt is one such example, as it is concerned with ensuring that the courts are able to effectively discharge the functions, duties and powers entrusted to them by the people. This was confirmed in Theophanous v Herald & Weekly Times Ltd, where Deane J cited the traditional powers of the superior courts to entertain proceedings for contempt as an example of a prohibition that is justifiable in the public interest. 449 Accordingly, it is clear that the implied freedom of political communication does not override the law of contempt and cannot be used as a vehicle for destroying the essential power and duty of the courts to protect the right to a fair trial of persons accused of crimes. 450 In Attorney-General v Time Inc Magazine Co Pty Ltd, 451 the New South Wales Court of Appeal stated that neither the Constitution nor any right of free communication implied in it confers a right to publish information at the expense of the due administration of justice. Indeed, the right of an accused person to a fair trial was regarded as just as much a part of the fabric of the law which the Constitution defends through the judiciary as the right of free communication. 452 446 447 448

449 450 451 452

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. Z Guest, “The Judiciary and the Freedom of Political Communication: The Protection of Judgment on Australia’s Judge’” (2006) 17 Public Law Review 5 at 7. See: John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 158 FLR 81; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164; APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; 219 ALR 403; O’Shane v Harbour Radio Pty Ltd [2013] NSWCA 315. Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 187. John Fairfax Publications Pty Ltd v Doe (1994) 37 NSWLR 81; Liu v The Age Company Ltd [2012] NSWSC 12 at [30]. Attorney-General v Time Inc Magazine Co Pty Ltd (unreported, NSW Court of Appeal, Gleeson CJ, Sheller and Cole JJA, 15 September 1994). It has been suggested that the right to a fair trial may itself be an implied constitutional right: Polyukhovich v Commonwealth (1991) 172 CLR 501 at 607; Dietrich v The Queen (1992) 177 CLR 292 at 326, 362. See also John Fairfax Publications Pty Ltd v Doe (1994) 37 NSWLR 81 at 109-111 per Kirby P.

432 [6.780]

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Having established that the constitutional protection does not deprive courts of the power to protect fair trials through the law of contempt, it is important to consider whether, and if so to what extent, there is any inconsistency between the constitutional protection and specific aspects of the law of sub judice contempt. If there is, the latter must be brought into conformity with the former. It has been suggested that the following features of the law of sub judice contempt might impinge on the implied freedom in an impermissible manner: the departure from the normal mens rea requirement for criminal liability; the extended period in which proceedings remain pending; and the imposition of custodial sentences in cases where the trial has later been found to have been fair. 453 The insistence on applying penal laws when less drastic, reasonable and effective remedial measures are available may also be problematic. Although this matter is yet to be considered at length by the High Court, 454 the constitutional protection has not had a dramatic impact on sub judice contempt. There are three reasons why this is so. First, the constitutional protection has not introduced a new factor into the contempt equation. Judges have consistently maintained that the common law of contempt is the product of an attempt to strike a fair balance between the public interest in the administration of justice in pending cases and the public interest in freedom of speech. Historically, that balance has clearly come down in favour of the public interest in protecting fair trials. However, decisions such as the Hinch, Civil Aviation Authority and Attorney-General (NSW) v X cases have heralded an increased willingness on the part of judges to accept that there are circumstances in which this public interest should yield to the public interest in freedom of expression. It is suggested that the constitutional protection simply formalises that shift. Second, in recent years, courts have liberalised the law of contempt for reasons other than the existence of the constitutional protection of political discourse. For example, courts are now more willing to attribute to jurors the ability to disregard media coverage of a case and to base their decision on the evidence presented in court. 455 Third, in the few cases in which an alleged contemnor has sought to rely on the freedom of political communication as an answer to what would otherwise be a contempt, the argument has failed. 456 In cases where the protection has been invoked by courts, it has been used to bolster a conclusion in favour of freedom of speech already reached through the application of common law contempt principles. 457 453

Cram (2002), p 112.

454

In Re Colina; Ex parte Torney (1999) 200 CLR 386, Kirby J said that whether the implied freedom is compatible with the law of contempt remains an open question, although he acknowledged that New South Wales cases had expressed the view that there is compatibility between the two. Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540 is a case in point. See, for example: Attorney-General (NSW) v Time Inc Magazine Co Pty Ltd (unreported, NSW Court of Appeal, Kirby P, Handley and Sheller JJA, 7 June 1994); (unreported, NSW Court of Appeal, Gleeson CJ, Sheller and Cole JJA, 15 September 1994). The High Court refused special leave to appeal, although it conceded that the question whether the implied right extends to the publication of a photograph of an accused person taken outside the courtroom might, in an appropriate case, warrant the grant of special leave.

455 456

457

In Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540 at 558-560, Kirby P relied on the implied right to support a conclusion already reached in relation to prejudgment contempt. See [6.590].

[6.780] 433

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The future of sub judice contempt [6.790] In recent years, prosecutions for the offence of sub judice contempt have been relatively infrequent. This phenomenon has been observed by judges and journalists alike. 458 Indeed, in 2009, Justice King spoke of sub judice contempt in the past tense in the following terms: There used to be something that was used by the law and respected by the media in Victoria called “sub judice” which means if a matter is still under consideration by a court; or still subject to active litigation, accordingly the media could not report on the matter, in any detail as to unproved allegations or arguments in advance of the hearing. Somewhere along the way the DPP and the courts dropped the ball, and ceased prosecuting or convicting people for contempt of court for publishing matters that were sub judice. 459

It is difficult to isolate one particular reason for this phenomenon; indeed, there are a number of possible explanations, all of which may be contributing factors. The first is that Attorneys-General seem to be less inclined to prosecute media organisations for sub judice contempt. Decisions regarding prosecutions for serious offences are now largely made by the Office of Public Prosecutions. There is some doubt as to the ambit of the OPP’s power to instigate prosecutions for contempt. 460 Even assuming the existence of this power, since government budgets are tight, the OPP may be more inclined to prosecute serious criminal offences where there is a tangible victim, rather than sub judice contempts which operate in the realm of the potential rather than the actual. Secondly, Supreme Courts are increasingly issuing non-publication orders which either prohibit the publication of, or order the take down of, information or commentary about an accused where the court deems this necessary in order not to prejudice the accused’s fair trial. 461 Such orders have been particularly prevalent in Victoria, where they have been made in high profile cases such as the Underbelly case, 462 News Digital Media Pty Ltd v Mokbel 463 and Nationwide News Pty Ltd v Farquharson, 464 although they have not always survived an appeal. In the latter case, Lasry J suppressed publication in Victoria of an article in The Weekend Australian about an unrelated murder trial in South Australia concerning a father who had killed his child. The article was due to be published during the re-trial of Farquharson

458

459

See, eg: Hon Justice Whealy, “Contempt, Some Contemporary Thoughts” (2008) 8 The Judicial Review 441; M Simons, “A Bridge Too Far in Sub Judice Contempt” (3 February 2009), http://www.crikey.com.au/2009/02/ 03/a-bridge-too-far-in-sub-judice-contempt. Justice B King, “’Underbelly’ - a True Crime Story or Just Sex, Drugs and Rock and Roll?” (Speech delivered to the Medico Legal Society of Victoria, Melbourne Club, 13 November 2009).

460

See [6.90].

461

The difference between a general non-publication order and an injunction to restrain a threatened sub judice contempt is discussed in [5.230].

462

General Television Corporation Pty Ltd v Director of Public Prosecutions (Vic) (2008) 19 VR 68.

463 464

News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248. Nationwide News Pty Ltd v Farquharson (2010) 28 VR 473.

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for the murder of his three sons. Lasry J was struck by the number of similarities between the two cases and took the view that publication of the article in Victoria would have a tendency to prejudice Farquharson’s re-trial. 465 If courts issue non-publication orders in high profile cases such as these, the law of sub judice contempt may not be engaged. This is because the media will either comply with the non-publication order, in which case the order will serve its purpose of staving off a contempt, or the order will be contravened, in which case the offending conduct will be punished either as a direct breach of the order or as a frustration of its purpose, although it is possible that it might also be prosecuted as a sub judice contempt if it is arguable that the breach has a tendency to prejudice a fair trial. 466 Unlike sub judice contempt charges, which are based on the public interest in a fair trial, contempt charges that arise from a breach of non-publication orders are based on an interference with the administration of justice that consists of conduct which has frustrated or impeded the effect of a binding order made by a court of law. Moreover, the Bread Manufacturers’ defence applies only to charges of sub judice contempt. 467 To suggest that general non-publication orders have overtaken the role of sub judice contempt is to overstate the position. As explained in [5.290], in Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim the New South Wales Court of Appeal cautioned that general non-publication orders should not be made unless the principles of sub judice contempt are regarded, in the circumstances, as inadequate to prevent prejudice. 468 The extent to which courts will refrain from making non-publication orders in deference to this judicial affirmation of the primacy of the law of sub judice contempt remains to be seen. A third explanation for the decline in contempt prosecutions is that Australian courts are becoming less focused on controlling prejudicial publicity at its source and are increasingly employing other methods of protecting the administration of justice. 469 To the extent that these methods are remedial and post hoc in nature, rather than preventative, Australia is becoming more like the United States. 470 However, whereas the remedial focus in the United States is a consequence of the First Amendment, which countenances very few restrictions on free speech, in Australia, the declining use of the law of sub judice contempt is more likely attributable to a growing realisation that contempt law is becoming less adept at controlling prejudicial publicity in this online age, given the pervasive, global, immediate and enduring nature of the internet. 471 The methods that are being increasingly utilised by the courts focus on controlling the behaviour of jurors rather than controlling the publicity. One significant 465 466 467 468

Had the article been published it might have been found to be contemptuous on the basis that it had a tendency to cause jurors to harbour hostility towards Farquharson or to be less willing to accept his defence. See The Queen v Hinch [2013] VSC 520, where the accused was found guilty of contempt for frustrating a non-publication order but not guilty of sub judice contempt. These differences are described at length in The Queen v Hinch [2013] VSC 520.

469

Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at 78. See also: Australian Broadcasting Corporation v Local Court of NSW [2014] NSWSC 239 at [57]. These methods are described in [6.120].

470 471

Rich (2010) 15 Media and Arts Law Review 361 at 367. Justice Bell (2005) 7(3) The Judicial Review 311; Justice Whealy (2008) 8 The Judicial Review 441.

[6.790] 435

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strategy is for judges to give jurors firm directions to ignore any publicity to which they might have been exposed and to focus solely on the evidence and arguments presented to them at the trial, and then to assume that this is precisely what the jury will do. In John Fairfax Publications Pty Ltd v District Court of New South Wales Spigelman CJ stated that: Trial judges of considerable experience have asserted, again and again, that jurors approach their task in accordance with the oath they take, that they listen to the directions that they are given and implement them. In particular that they listen to the direction that they are to determine guilt only on the evidence before them. 472

The more courts attribute to jurors the ability to put prejudicial publicity aside after being instructed to do so, the less the need to shield them from it. By making the assumption that jurors are capable of sidelining prejudicial publicity, it is arguable that this approach actually cuts off contempt at its source, as it reduces the tendency of the publication below the legal requisite for a contempt. As well as directing jurors to ignore prejudicial publicity that has already come to their attention, judges also routinely exhort jurors not to conduct their own searches and investigations, including online research, in an effort to ensure that they are not exposed to prejudicial information. Some jurisdictions actually criminalise juror research. 473 However, measures which target the jury may be less effective than laws which seek to prevent prejudicial material from being published in the first place, as there are many instances where jurors have conducted online research despite being warned not to do so. 474 Justice Whealy, for example, has confessed to having “significant reservations” about whether judges are justified in assuming that jurors obey instructions, opining that many jurors will not be able to resist the temptation to “make the extra click”. 475 It is suggested that the optimal approach is to continue to utilise the law of sub judice contempt, but to supplement it with other measures.

Contempt By Jurors [6.800] The primary focus of this chapter has been on sub judice contempt, which criminalises the publication of information about a pending case if it is found to have a real tendency to prejudice the administration of justice because of its potential effect on the participants, particularly jurors. Since sub judice contempt requires that there be a “publication”, its impact has been most keenly felt by traditional print and electronic media organisations. However, now that anyone with access to a computer and an internet 472 473

John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344 at 366. See [6.800].

474

See, eg, R v K (2003) 59 NSWLR 431; Folbigg v The Queen [2007] NSWCCA 371; R v Benbrika [2009] VSC 142; Martin v The Queen [2010] VSCA 153; Hansen v Western Australia [2010] WASCA 180. Not all of these cases involved seeking out information about the accused. Whealy (2008) 8 The Judicial Review 441. See also B Lane, “Judges Want the Information Age to STOP” Justinian (9 June 2005), http://www.justinianarchive.com/371-article; R Ackland, “Courts in a Lag Behind Contemptible Digital Wave”, The Age (4 March 2011), http://www.theage.com.au/opinion/society-and-culture/ courts-in-a-lag-behind-contemptible-digital-wave-20110303-1bgam.html. The matter has recently been considered in the United Kingdom: Attorney General v Associated Newspapers Ltd & News Group Newspapers Ltd [2011] EWHC 418 (Admin).

475

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connection can disseminate prejudicial information on an unprecedented scale speedily and with relative permanence, individuals are also exposed to the possibility of prosecution. In fact, individuals are more prone to transgress the law than trained journalists and media organisations, given their likely lack of awareness of the legal constraints on reporting the courts. 476 The advent of the internet, and in particular social media, has spawned a new threat to the administration of justice, namely, communications that emanate from jurors themselves through their use of social media during a trial or deliberations. 477 Where this amounts to an interference with the administration of justice, the juror is liable to be prosecuted for contempt of court. Most of the reported instances of juror misconduct using social media have occurred in overseas jurisdictions, particularly the United Kingdom and the United States, but inappropriate use of social media by Australian jurors is not unknown. Bartels and Lee have identified four primary ways in which jurors might use the internet, including social media, inappropriately. 478 The first is to actively seek information about the case or the parties from a source outside the courtroom. The prime example is using the internet to conduct research. This can amount to a contempt on the basis that it interferes with the administration of justice, because it means that jurors might rely on evidence or information that was not adduced at the trial and which is therefore untested and possibly prejudicial. 479 Alternatively, it might be a contempt on the basis that the juror disobeyed a judicial direction not to conduct research on the internet. 480 The United Kingdom Law Commission expressed doubt as to whether extraneous research by jurors is “a contempt by 476

477

478

479

480

Despite their amenability to a contempt charge, it may be logistically more difficult to prosecute individuals for a sub judice contempt than it is to prosecute media organisations. The reasons for this are summarised in: Associate Professor J Johnston, Professor P Keyzer, G Holland, Professor M Pearson, S Rodrick and Professor A Wallace, Juries and Social Media, A Report prepared for the Victorian Department of Justice (2013) at [2.4]. Perhaps it is more accurately described as an old threat in a new form: M Krawitz, Guilty As Tweeted: Jurors Using Social Media Inappropriately During the Trial Process, University of Western Australia Faculty of Law Research Paper No 2012-02 (2012), p 3. L Bartels and J Lee, “Jurors Using Social Media in our Courts: Challenges and Responses” (2012) 13 Journal of Judicial Administration 35. See also: Hon AJ St Eve and MA Zuckerman, “Ensuring An Impartial Jury In The Age Of Social Media” (2012) 11(1) Duke Law and Technology Review 1; M Krawitz, Guilty as Tweeted: Jurors Using Social Media Inappropriately During the Trial Process, University of Western Australia, Faculty of Law Research Paper No 2012-02; Associate Professor J Johnston, Professor P Keyzer, G Holland, Professor M Pearson, S Rodrick and Professor A Wallace, Juries and Social Media, A Report prepared for the Victorian Department of Justice (2013) at [3.1]-[3.7]; New Zealand Law Commission: Contempt in Modern New Zealand, Issues Paper 36 (2014) ch 5. HM Attorney-General (UK) v Davey; Attorney-General (UK) v Beard [2013] EWHC 2317 (Admin); Attorney-General (UK) v Fraill [2011] EWCA Crim 1570 at [35]; Attorney-General (UK) v Dallas [2012] EWHC 156. Recent UK research found that a significant proportion of jurors admitted to conducting such research: C Thomas, Are Juries Fair? (Ministry of Justice Research Series 1/10, February 2010). This was the case in Attorney-General (UK) v Dallas [2012] EWHC 156 (Admin) (juror conducted internet research in deliberate defiance of a judicial direction not to do so and discovered that the accused had previously been tried for rape. The juror was found guilty of contempt and sentenced to a term of imprisonment). See also HM Attorney-General (UK) v Davey; Attorney-General (UK) v Beard [2013] EWHC 2317 (Admin) (juror typed defendants’ names into a search engine, found extraneous information about the case and imparted that information to fellow jurors. He was found to be in contempt of court.)

[6.800] 437

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its own nature” or only because “it is a breach of the directions given by the judge”. 481 In jurisdictions where it is a statutory offence for jurors to conduct research, 482 it would be unnecessary for the court to employ its contempt jurisdiction. The second way in which jurors might use the internet inappropriately is to publish, distribute or disclose information about the trial. For example, a juror might post his or her thoughts and opinions about the trial and the participants, which is particularly problematic if these comments betray a prejudiced mind about the accused person’s guilt or innocence. 483 If the disclosure pertains to jury deliberations, the juror could be prosecuted for a statutory offence, as each Australian jurisdiction has legislation that prohibits the disclosure of jury deliberations. 484 The third is contacting or friending parties, witnesses, lawyers, other jurors or even the judge in the trial. The most well-known instance is the United Kingdom case of Attorney-General (UK) v Fraill, where, in a legal first, a juror and an acquitted defendant were each convicted of contempt of court for maintaining contact with each other via Facebook during the defendant’s trial on drugs charges. 485 The fourth is discussing the merits of the case or seeking opinions, comments or advice from others. 486 Irrespective of whether the “rogue juror” is charged with contempt of court or a statutory offence for one of these forms of misconduct, inappropriate use of the internet by a juror might result in an application to discharge the juror or the entire jury, abort a trial, overturn a verdict or grant an appeal, usually at considerable public expense and with adverse consequences for the defendant. 487 In October 2012, the Standing Council on Law and Justice (SCLJ) expressed its concern at the potential for social media to jeopardise the right to a fair trial and agreed to seek a co-ordinated national approach. It was decided that the issue should be further considered by 481 482

483

484 485 486

487

United Kingdom Law Commission, Contempt of Court (1): Juror Misconduct and Internet Publications (Law Com No 340) (2013) at [3.19]. Jury Act 1977 (NSW), s 68C; Jury Act 1995 (Qld), s 69A; Juries Act 2000 (Vic), s 78A. There has been only one prosecution for breach of these provisions and that was in Victoria: see J Kaila, Juror in Hot Water for Online Search, Herald Sun (Melbourne), 19 June 2011 http://www.heraldsun.com.au/archive/news/juror-in-hotwater-for-online-search/story-fn7x8me2-1226077656291. The effectiveness of a statutory offence in curbing juror research has been questioned: New South Wales Law Reform Commission, Jury Directions Consultation Paper No 4 (2008) at [5.34]. See, for example, HM Attorney-General (UK) v Davey; Attorney-General (UK) v Beard [2013] EWHC 2317 (Admin), where the High Court concluded that Davey’s act in posting an update on his Facebook page created a real risk of interference with the administration of justice. The basis for the Court’s decision was twofold: Davey’s post indicated that he would decide the case according to his prejudices, thus disregarding his duties as a juror, and his post disobeyed a judicial direction not to discuss the case. However, expressing opinions about the personal characteristics of the participants will not necessarily amount to a contempt or corrupt the trial, but the rogue juror might nevertheless be dismissed from the case for disobeying the judge’s orders not to discuss the case with non-jurors: Haruna v The Queen [2013] WASCA 170. This legislation has been discussed in detail in [5.830]. Whether the disclosure of jury deliberations by a juror might be dealt with as a contempt is discussed in [5.820]. Attorney-General (UK) v Fraill [2011] EWCA Crim 1570. The juror was sentenced to eight months’ imprisonment and the defendant to a two months’ suspended sentence. The problems with this course of action were identified in R v Karakaya [2005] Cr App R 5 at [25]. For an instance where this occurred see: http://www.dailymail.co.uk/sciencetech/article-1089228/Juror-dismissedasking-Facebook-friends-vote-trial.html. Attorney-General (UK) v Dallas [2012] EWHC 156.

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a working group, chaired by Victoria, to provide recommendations to the SCLJ following consultation with social media organisations, news media organisations, justice officials, law enforcement authorities and the courts. 488 The Victorian Department of Justice duly commissioned a preliminary report on the issue which canvassed a number of strategies that might be employed to prevent jurors from engaging in inappropriate behaviour. 489 Preventative measures have also been discussed and analysed in a number of academic articles and law reform commission reports. 490 They include: requesting the prosecution and/or the defence to search the internet prior to the commencement of a trial and to request any relevant site to remove offending material pending the completion of the trial; devising specific jury instructions, which include greater explanation of the reasons why juror use of the internet and social media is inappropriate; 491 repeating these instructions throughout the trial in different formats; encouraging jurors to ask questions of the judge where they lack understanding; removing internet-enabled devices from jurors while they are in the courtroom and during deliberations; sequestering the jury for the duration of the trial; requiring jurors to post a message on social media to the effect that they are on jury service and cannot read about or discuss the case; selecting jurors who are not social media users; requiring jurors to take an oath that they will not use social media; prosecuting jurors who use social media in an impermissible manner; and dispensing with a jury and having a judge alone trial.

Scandalising the court Rationale for scandalising contempt [6.810] Unlike sub judice contempt, which is concerned with protecting the administration of justice in pending proceedings, the form of contempt known as “scandalising the court” 492 is concerned with preserving public confidence in the administration of justice as a continuing process. It is based on the notion that the authority of the courts and the laws they administer must be maintained so that the public will have confidence in the courts, be willing to institute judicial proceedings and exhibit a general satisfaction with judicial determinations. 493 If courts 488 489

490

491

492 493

Standing Committee on Law and Justice, Communique, 4 October 2012. Associate Professor J Johnston, Professor P Keyzer, G Holland, Professor M Pearson, S Rodrick and Professor A Wallace, Juries and Social Media, A Report prepared for the Victorian Department of Justice (2013). M Krawitz, Guilty as Tweeted: Jurors Using Social Media Inappropriately During the Trial Process, University of Western Australia, Faculty of Law Research Paper No 2012-02 (2012); Bartels and Lee (2013) 23 Journal of Judicial Administration 35; United Kingdom Law Commission, Contempt of Court Consultation Paper No 209 (2012), ch 4. Whether juries can be trusted to obey such directions is a matter for conjecture. There are indications that they cannot. See: New Zealand Law Commission: Contempt in Modern New Zealand, Issues Paper 36 (2014) at [5.36]-[5.37] and the empirical studies referred to therein. The expression “scandalising the court” can be traced to the St James’s Evening Post Case: Roach v Garvan (1742) 2 Atk 469; 26 ER 683 at 684. Gallagher v Durack (1983) 152 CLR 238 at 243. For an in depth discussion of the historical rationales for the existence of scandalising contempt see H Burmester, “Scandalising the Judges” (1985) 15 Melbourne University Law Review 313.

[6.810] 439

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were allowed to be rendered contemptible in the eyes of the public, the law itself would fall into disrepute and society as a whole would suffer. 494 It is routinely emphasised in the cases that scandalising contempt aims to protect the functions rather than the feelings of judges; 495 judges who wish to protect their personal reputations from imputations to which they are exposed as individuals must resort to the law of defamation. 496 Although the jurisdiction to punish scandalising contempt is said to be as old as the common law itself, 497 over a century ago, the Privy Council declared that the offence was obsolete in England. 498 This declaration turned out to be premature. 499 Until recently, the offence remained extant in England, although it was described as “quiescent”, 500 there having been no successful prosecutions for scandalising contempt for over 80 years. 501 However, it was abolished as a form of contempt under the common law of England and Wales as from 25 June 2013. 502 In Australia there is no doubt that the offence exists. 503 In fact, prosecutions are relatively common. 504 494 495

R v Almon (1765) Wilm 243; 97 ER 94. See, eg, Ahnee v Director of Public Prosecutions [1999] 2 AC 322 at 306; Tate v Duncan-Strelec [2014] NSWSC 1125 at [197].

496

JL Caldwell, “Is Scandalising the Court a Scandal?” [1994] New Zealand Law Journal 442 at 443. See also MR Chesterman, ALRC Contempt Research Paper No 5, Public Criticism of Judges (ALRC, 1984); McLeod v St Aubyn [1899] AC 549 at 561; R v Fowler [1905] 1 Tas LR 53 at 56; Bell v Stewart (1920) 28 CLR 419 at 428; R v Dunbabin; Ex parte Williams (1935) 53 CLR 434 at 442; Ahnee v Director of Public Prosecutions [1999] 2 AC 294 at 306; Solicitor-General v Smith [2004] 2 NZLR 540 at [85], [95]. R v Gray [1900] 2 QB 36 at 40. Others regard the offence as having been first mentioned by Wilmot J in R v Almon (1765) Wilm 243; 97 ER 94: D Hay, “Contempt by Scandalising the Court: A Political History of the First Hundred Years” (1987) 25 Osgoode Hall Law Journal 431 at 433; Dhooharika v Director of Public Prosecutions (Mauritius) [2014] UKPC 11 at [21]; New Zealand Law Commission: Contempt in Modern New Zealand, Issues Paper 36 (2014) at [6.3].

497

498 499 500 501

502

503

504

McLeod v St Aubyn [1899] AC 549 at 561. The very next year an article in the Birmingham Daily Argus was held to constitute a scandalising contempt: R v Gray [1900] 2 QB 36. C Walker, “Scandalising in the Eighties” (1985) 101 Law Quarterly Review 359 at 359. For a review of scandalising contempt in England in the 19th and 20th centuries see: Cram (2002), pp 81,166-168. The last successful prosecution was in 1931 (Colsey, The Times 9 May 1931). An unsuccessful prosecution for scandalising contempt was brought in R v Commissioner of Police of the Metropolis; Ex parte Blackburn (No 2) [1968] 2 QB 150. However, appeals to the Privy Council from Commonwealth countries continue to be heard. There was an aborted attempt to revive the offence in 2012 when Peter Hain, former Northern Ireland Secretary, criticised a judge’s ruling on a judicial review application in his memoirs. A scandalising prosecution against Hain was ultimately dropped, but the incident brought the offence to the fore. Crime and Courts Act 2013 (UK), s 33. The abolition of the offence implemented a recommendation to that effect by the Law Commission for England and Wales, Contempt of Court: Scandalising the Court (LawCom No 335, 2012). The Commission considered whether the offence should be replaced with other offences but recommended against it. Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Re Colina; Ex parte Torney (1999) 200 CLR 386; Saltalamacchia v Parsons [2000] VSCA 83; R v Hoser & Kotabi Pty Ltd [2001] VSC 443 at [45]. The offence persists and is far from quiescent in many other countries, including Mauritius, India and many south-east Asian countries: see, eg, A Banerjee, “Contempt of Court and Criticism of the Judiciary: Tales of Discord Between Courts and the Media in India” (2007) 12 Media and Arts Law Review 320. There were more than 20 reported prosecutions for scandalising contempt in Australia last century, and prosecutions this century already exceed 10. A summary of recent cases can be found in M Pearson,

440 [6.810]

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Many judges, law reform commissions and academics have questioned whether proceedings for scandalising contempt are an effective means of maintaining or restoring public confidence in the courts, preferring in most cases to let public institutions in a free society stand upon their own merits and rely on the good sense of the community to be able to “sift the wheat from the chaff” when it comes to assessing criticisms of courts. 505 Indeed, many believe that greater damage is done to public confidence in the judiciary by the institution of legal proceedings for scandalising contempt, as it intimates that the judiciary are too delicate to withstand hostile criticism. Moreover, the fact that the offence is created and enforced by judges is apt to create suspicion that judges are acting to “protect their own” or that they have something to hide which they wish to cover up. 506 Unlike in the past, when judges would not give media interviews, judges today who believe that a particular criticism should not go unchallenged are more likely to publicly respond through a press conference or media interview, rather than instigate contempt proceedings. They may also commence proceedings for defamation. 507 Aside from the concerns about the capacity of the offence to secure public confidence in the administration of justice, many academic commentators regard the offence as incompatible with free speech and maintain that it should not, and need not, be retained. 508

What constitutes scandalising contempt? [6.820] It is a contempt to publish 509 material which tends to “detract from the authority and influence of judicial determinations” or which is “calculated to impair the confidence of the people in the Court’s judgments because the matter published aims at lowering the authority

505

506

507

508

509

“Scandalising Media Freedom: Resurrection of an Ancient Contempt” (2008) 14(1) Pacific Journalism Review 64; Gould (2010) 15 Media and Arts Law Review 23 at 23. See also: Xuarez & Vitela [2012] FamCA 574; Lackey v Mae [2013] FMCAfam 284; Tate v Duncan-Strelec [2014] NSWSC 1125. See, eg, Gallagher v Durack (1983) 152 CLR 238 at 246 per Murphy J; Hon MH Marshall, “Dangerous Talk, Dangerous Silence: Free Speech, Judicial Independence and the Rule of Law” (2002) 24 Sydney Law Review 455; Justice R Sackville, “The Judiciary and the Media: A Clash of Cultures” (2005) 27(1) Australian Journalism Review 7. United Kingdom Law Commission, Contempt of Court: Scandalising the Court Consultation Paper No 207 (2012) at [78] citing a speech by Lord Pannick in the House of Lords; United Kingdom Law Commission, Contempt of Court: Scandalising the Court Report No 335 (2012) at [16], [31]. Defamation actions were brought by magistrates in Herald & Weekly Times v Popovic (2003) 9 VR 1 and John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164. In 2009, the South Australian government settled a defamation action brought against the State’s Attorney-General by Deputy Chief Magistrate Andrew Cannon without admission of liability. Some of these views are canvassed in: Australian Law Reform Commission, Contempt, Report 35 (1987); Cram (2002), p 181; Marshall (2002) 24 Sydney Law Review 455 at 461; E Fisher, “The Courts’ Scandal: Scandalising the Courts in Australia” (2011) 16(1) Media and Arts Law Review 73; Lord D Pannick, “’We do not Fear Criticism, Nor do we Resent it’: Abolition of the Offence of Scandalising the Judiciary” [2014] 2 Public Law 5. This was the conclusion of the United Kingdom Law Commission, Contempt of Court: Scandalising the Court Report No 335 (2012) at [93]. Publication of the offending material is an essential element of the offence of scandalising contempt: Wade v Gilroy (1986) 10 Fam LR 793 at 798; McGuirk v University of NSW [2009] NSWSC 1058 at [338]-[344]. The concept of publication has been discussed in [6.150]–[6.160].

[6.820] 441

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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”. 510 Courts have stated that published material will not be held to constitute a scandalising contempt unless that material has an inherent tendency to impair or undermine public confidence in the administration of justice. 511 In line with sub judice contempt, it is also likely that there must be a real risk, as opposed to a remote possibility, that public confidence in the administration of justice will be undermined. 512 Whether a publication has a tendency to impair public confidence in the administration of justice is measured by its impact on a reasonable person. 513 The actual effect of the publication is not examined. 514 Discerning whether a publication has a tendency to impair the authority of the legal system is a much more speculative exercise than assessing the tendency of a publication alleged to constitute a sub judice contempt. 515 By its very nature, scandalising contempt is more abstract than sub judice contempt, as it is concerned with ensuring that the stream of justice is not “poisoned upstream” to the detriment of future litigants, rather than with the effect of a publication on a particular case in progress. 516 When assessing the tendency of the publication, courts have regard to factors such as the size and location of the readership or audience, 517 the form of the publication, and whether the maker of the statements was a well-known and respected public figure, thereby lending credence to the allegations made in the publication. 518 More latitude is likely to be given to emotional statements made by dissatisfied litigants. 519 Unlike a sub judice contempt, a scandalising contempt can be committed at any time. 520 It is not necessary that proceedings be pending, although a court will more readily punish a 510 511

512

R v Dunbabin; Ex parte Williams (1935) 53 CLR 434 at 442 per Rich J. This definition of scandalising contempt was re-affirmed by the majority of the High Court in Gallagher v Durack (1983) 152 CLR 238 at 243. Attorney-General (NSW) v Mundey [1972] 2 NSWLR 887 at 911; Solicitor-General v Radio Avon Ltd [1978] 1 NZLR 225; Fitzgibbon v Barker, Gardner and Leader Associated Newspapers Pty Ltd; Re Schwartzkopff (1993) FLC 92-381 at 79,951; Wade v Gilroy (1986) 10 Fam LR 793 at 805; R v Hoser & Kotabi Pty Ltd [2001] VSC 443 at [52].

514

Solicitor-General v Radio Avon Ltd [1978] 1 NZLR 225 at 233-234. In this context, “calculated” means objectively likely, not subjectively intended: Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 24. Bell v Stewart (1920) 28 CLR 419 at 425. See, eg, R v Hoser & Kotabi Pty Ltd [2001] VSC 443, where Eames J gave a detailed account of his reasons for finding that the publications in question had the requisite tendency: at [204]-[225]. This is also true of sub judice contempt, and is discussed more fully in [6.230].

515 516

Walker (1985) 101 Law Quarterly Review 359 at 375. Caldwell [1994] New Zealand Law Journal 442 at 443.

517

See Attorney-General (NSW) v Mundey [1972] 2 NSWLR 887 discussed in [6.650]; Saltalamacchia v Parsons [1999] VSC 430; [2000] VSCA 83 at [10]; Tate v Duncan-Strelec [2014] NSWSC 1125 at [198].

518 519

Gallagher v Durack (1983) 152 CLR 238 at 244; Attorney-General (Qld) v Lovitt [2003] QSC 279 at [66]. O Litaba, “Does the Offence of Contempt by Scandalising Have a Valid Place in the Law of Modern Day Australia?” (2003) 8 Deakin Law Review 113 at 120. For example, in Mills v Townsville City Council (No 2) [2003] QPEC 18, statements made by three councillors were described by the Court as the language of losers not contemnors. But see, contra, Environment Protection Authority v Pannowitz [2006] NSWLEC 219; Tate v Duncan-Strelec [2014] NSWSC 1125 at [199] (disgruntled litigant was a former public figure – a mayor – making serious allegations against the court and another public figure). Gallagher v Durack (1983) 152 CLR 238 at 244; Tate v Duncan-Strelec [2014] NSWSC 1125 at [194].

513

520

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scandalising contempt if it contains an element of prejudice to a pending case. 521 Although scandalising contempt is a criminal offence, the weight of authority favours the view that it is only necessary to show that the contemnor intended to publish the material in question; there is no requirement that the contemnor intended to tinterfere with the administration of justice. 522 As with sub judice contempt, the contemnor’s intention is relevant to the question of penalty. 523 The offending comments need not be directed at judges. A contempt can be committed by scandalous allegations, criticism or abuse of magistrates 524 or jurors. 525 In the case of jurors, published comments will amount to a scandalising contempt if they have a tendency to deter current or potential jurors from participating in future trials or if they have a tendency to undermine public confidence in the administration of justice by suggesting that jurors had not properly discharged their duties in a proceeding. 526 Although the essence of scandalising contempt is clear, it is very difficult to define the parameters of the offence, as there are “no landmarks pointing out the boundaries in all cases”. 527 This makes it hard to predict whether a particular publication infringes the law. One reason for this uncertainty is that scandalising contempt is “subject to changes in judicial and political sensibilities and to shifts in perceptions of what constitutes legitimate comment on the institutions of the state”. 528 It has been suggested that, because modern society is more tolerant of strong language and more accustomed to treating those in public office with disrespect, what was held to constitute scandalising abuse 50 years ago might not be held to constitute scandalising abuse today. 529 Furthermore, judges may be more sensitive to

521

522

523 524 525 526 527 528 529

In R v Dunbabin; Ex parte Williams (1935) 53 CLR 434, for example, the charge of contempt was made by a person who was a party to a pending proceeding before the court. It was argued, inter alia, that the publication of the remarks in question would prejudice her appeal. R v Editor of New Statesman; Ex parte Director of Public Prosecutions (1928) 44 TLR 301; Attorney-General (NSW) v Mundey [1972] 2 NSWLR 887 at 911; Solicitor-General v Radio Avon Ltd [1978] 1 NZLR 225 at 232-234; Ahnee v Director of Public Prosecutions [1999] 2 AC 294 at 307; Attorney-General (Qld) v Lovitt [2003] QSC 279 at [58]; Prothonotary of the Supreme Court of New South Wales v Katelaris [2008] NSWSC 389 at [30]-[31]. The comments made about mens rea in the context of sub judice contempt apply equally to scandalising contempt: see [6.140]. Note, however, that the Privy Council recently suggested that an intention to interfere with the administration of justice may be necessary: Dhooharika v Director of Public Prosecutions (Mauritius) [2014] UKPC 11 at [47]-[48]. R v Editor of New Statesman; Ex parte Director of Public Prosecutions (1928) 44 TLR 301. Attorney-General (Qld) v Lovitt [2003] QSC 279; R v Hoser & Kotabi Pty Ltd [2001] VSC 443. Re Johnson (1887) 20 QBD 68 at 74; Prothonotary of the Supreme Court of New South Wales v Katelaris [2008] NSWSC 389. Prothonotary of the Supreme Court of New South Wales v Katelaris [2008] NSWSC 389. McLeod v St Aubyn [1899] AC 549 at 561. Lowe and Sufrin (3rd ed, 1996), p 338. See also Anissa Pty Ltd v Parsons [1999] VSC 430 at [22] (the matter must be judged by contemporary Australian standards). Lowe and Sufrin (3rd ed, 1996), p 343. See also: Harris v Harris [2001] EWHC 231 (Fam) 231 at [372].

[6.820] 443

Australian Media Law

scandalising abuse in times where the judicial system is insecure than in periods of relative stability. 530 The size of the jurisdiction can also have an impact on the vulnerability of the administration of justice. 531

Right to criticise [6.830] The law of scandalising contempt endeavours to balance the public interest in maintaining confidence in the administration of justice as a continuing process and the public interest in freedom of speech, in particular, the freedom to criticise the administration of justice by the courts. In the context of sub judice contempt, these public interests frequently conflict. 532 However, in relation to scandalising contempt, the scope for conflict is far less. The reason for this is that criticism of courts and their judgments is generally regarded as beneficial, rather than inimical, to the administration of justice. 533 Indeed, courts regard it as imperative in a modern democracy that the public are free to criticise courts and judges, even if the criticism is colourful and vitriolic. 534 This is especially so where a judge has made an improper or unjustified statement or where a court’s decision is arguably wrong. The cases abound with statements to the effect that once legal proceedings are no longer pending in court, the conduct of the judge and the jury is “given over to criticism”. 535 This criticism may relate to a court’s decision, a point of law, the state of the law in general, comments made by a judge during a trial, or the leniency or harshness of a sentence meted out by a judge. Indeed, the law encourages in respect of courts the fullest discussion of their doings provided the discussion is “fairly conducted”, “honestly directed to some definite public purpose” and not motivated by malice. 536 In the words of Lord Atkin: But whether the authority and position of an individual judge, or the due administration of justice, is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising, in good faith, in private or public, the public act done in the seat of justice. The path of criticism is a public way: the wrong headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice

530

531

532 533

534 535

536

Lowe and Sufrin (3rd ed, 1996), p 345. The decision in Dunbabin Ex parte Williams, described in [6.850], has been explained on this basis: M Armstrong, D Lindsay and R Watterson, Media Law in Australia (3rd ed, 1995), p 124. Ahnee v Director of Public Prosecutions [1999] 2 AC 294 (the Privy Council regarded the administration of justice as being more vulnerable in a small island such as Mauritius than in the United Kingdom). Similar sentiments were expressed by the Privy Council in McLeod v St Aubyn [1899] AC 549 and Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322. See [6.110]. Attorney-General (NSW) v Mundey [1972] 2 NSWLR 887 at 907-908. See also R v Gray [1900] 2 QB 36 at 40; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 32-33; Justice Kirby, “Judges Under Attack” [1994] New Zealand Law Journal 365 at 366. R v Kopyto (1987) 39 CCC (3d) 1. McLeod v St Aubyn [1899] AC 549 at 561. See also Re “The Evening News” (1880) 1 LR (NSW) 211 at 239; R v Gray [1900] 2 QB 36 at 40; Attorney-General (NSW) v Bailey [1917] SR (NSW) 170 at 195; R v Dunbabin; Ex parte Williams (1935) 53 CLR 434 at 448. R v Dunbabin; Ex parte Williams (1935) 53 CLR 434 at 442.

444 [6.830]

Chapter 6 – Contempt of Court or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men. 537

The same attitude prevails in Australia, where Hope JA said: Criticism does not become contempt because it is “wrong headed”, or based on the mistaken view of the facts or of the law. Nor, in my opinion, need it be respectfully courteous or coolly unemotional. There is no more reason why the acts of courts should not be trenchantly criticised than the acts of other public institutions, including parliaments. The truth is of course that public institutions in a free society must stand upon their own merits; they cannot be propped up if their conduct does not command respect and confidence; if their conduct justifies the respect and confidence of a community, they do not need the protection of special rules to shield them from criticism. Indeed, informed criticism, whether from a legal or social or any other relevant point of view, would be of the greatest assistance to them in the performance of their functions. 538

Although criticism of judges and courts is encouraged, there are limits beyond which criticism will not be tolerated. However, the boundary between permissible and impermissible criticism is difficult to draw and involves questions of degree. There are two types of attacks on judges and courts which are likely to be regarded as having the requisite tendency to “shake the confidence of litigants and the public in the decisions of the courts and to weaken the spirit of obedience to the law”. 539 The first is scurrilous abuse of a judge as a judge, or of a court; the second is attacks upon the integrity, impartiality or propriety of a judge or court. Most prosecutions for scandalising contempt concern allegations of impropriety or bias, although the boundary between the two is not always clear. 540 These categories do not exhaust the types of statements that can constitute scandalising contempt. Publications that insinuate that a court has been overawed or intimidated, or that misrepresent a decision of the court, 541 may also constitute a scandalising contempt. For example, in Re South Australian Telecasters Ltd an injunction was granted to prevent the broadcast of a television program in which the natural parents of two children expressed shock and amazement that a judicial registrar of the Family Court had made an interim order that the children live with their foster mother. 542 Coupled with the fact that the report was selective and unbalanced, it implied that the decision was unfair and contrary to reason. It was held that the program would have the effect of lowering the court’s authority even though it was not abusive and did not contain allegations of bias or partiality. 543 537 538 539 540

Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322 at 335. See also R v Commissioner of Police of the Metropolis; Ex parte Blackburn (No 2) [1968] 2 QB 150 at 155. Attorney-General (NSW) v Mundey [1972] 2 NSWLR 887 at 908. See also Mills v Townsville City Council (No 2) [2003] QPEC 18. R v Dunbabin; Ex parte Williams (1935) 53 CLR 434 at 445. R v Hoser & Kotabi Pty Ltd [2001] VSC 443 at [46].

541

In order to constitute a contempt, the misrepresentation must do more than just inaccurately represent a judicial decision. In deference to the right of free speech, the misrepresentation must “get to the stage of scandalising the court”: Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd [2003] NSWSC 775 at [48]. Misrepresentations that are published while the case is pending will be treated as more serious: at [50].

542 543

Re South Australian Telecasters Ltd (1998) 23 Fam LR 692. For a similar example see: Solicitor-General v Smith [2004] 2 NZLR 540.

[6.830] 445

Australian Media Law

Scurrilous abuse [6.840] A publication may constitute contempt if it amounts to scurrilous abuse of a judge in his or her capacity as a judge or of a court. Abuse which is directed at the private character of a judge is regarded as contemptuous only if it impinges on his or her reputation in fulfilling judicial functions. 544 In determining whether criticism amounts to scurrilous abuse, the degree of invective is a relevant consideration. 545 In Attorney-General (NSW) v Mundey Hope JA stated that a charge that criticism constitutes scurrilous abuse should be a very strong one before it is dignified by being the subject of judicial proceedings in the Supreme Court. 546 The following cases show that the dividing line between scurrilous abuse and intemperate, yet permissible, criticism is difficult to draw. Example

R v Dunbabin; Ex parte Williams [6.850] R v Dunbabin; Ex parte Williams (1935) 53 CLR 434 An article published in The Sun newspaper in Sydney referred to “the manner in which the High Court knocked holes in Federal Laws”. In particular, the article referred to a Mr Kisch, a Czechoslovakian communist author, and an unpopular High Court decision which enabled him to remain in Australia against the wishes of the government. Referring to the decision, the article stated “… to the horror of everybody except the Little Brothers of the Soviet and kindred intelligentsia, the High Court declared that Mr Kisch must be given his freedom … When the amendments are made we should invite him to jump ashore again to see whether the new Act pleases the High Court any better than the old, or whether the ingenuity of five bewigged heads cannot discover another flaw”. The article also referred in the following terms to another High Court decision in which the court had held that secondhand goods were not subject to sales tax, notwithstanding that it was the government’s stated intention that such goods be liable to the tax: “Well may the Caseys and the Kellys cry, like the historic British monarch, for some gallant champion to rid them of this pestilent Court. Perhaps there is a better way. If the High Court were given some real work to do the Bench would not have time to argue for days on the exact length of the split in the hair, and the precise difference between Tweedledum and Tweedledee.” The court stated that the purpose and effect of the article was to represent that the High Court exercises excessive legal ingenuity in order to wantonly destroy legislation of great public importance and that the court is an obstacle that the Federal Government

544 545

546

Walker, The Law of Journalism in Australia (1989), p 80. See also Ahnee v Director of Public Prosecutions [1999] 2 AC 294 at 306. Caldwell [1994] New Zealand Law Journal 442 at 444. However, prior to the abolition of the offence, the United Kingdom High Court stated that the tone of the publication had become less relevant and that “a much more robust view” must be taken of what “ought rightly to be allowed to pass as permissible criticism”: Harris v Harris [2001] EWHC 231 (Fam) 231 at [372]. Attorney-General (NSW) v Mundey [1972] 2 NSWLR 887 at 910.

446 [6.840]

Chapter 6 – Contempt of Court R v Dunbabin; Ex parte Williams cont. might well seek to remove. As these imputations could not but shake the confidence of litigants and the public in the decisions of the court and weaken the spirit of obedience to the law, the article was held to be a contempt. 547

[6.860] The following article was held not to be contemptuous. Example

Bell v Stewart [6.870] Bell v Stewart (1920) 28 CLR 419 A question was being debated in the Commonwealth Court of Conciliation and Arbitration as to whether employees were “slowing down”. An article was published which stated that: Mr Justice Higgins is not satisfied that “slowing down” is practised in industry. Several employers are quite satisfied that it is practised, and corroborative evidence of the employers’ view could be found in the utterances of the militants among the unionists. The lack of judicial knowledge of facts well known to the parties is not unknown in cases outside industrial matters, and, although the court can take no cognizance of notorious facts, there is nothing in the law to forbid the public from feeling amused at this display of innocence from the Bench …. The detachment of the Arbitration Court from the facts of industrial life explains, in some measure, why industrial life is rapidly detaching itself from the Court. The High Court held that these words were not capable of bringing the Court into disrepute or of undermining its authority in the minds of reasonable people, as no reasonable man could attribute any charge of false play or injustice to Higgins J on the words used. Indeed Knox CJ, Gavan Duffy and Starke JJ asserted that the substance of the criticism levelled at Higgins J – that he refused to assume facts of his own personal knowledge without due proof – would actually be seen by reasonable men as being well calculated to ensure a proper and just administration of law free from the prejudices or want of knowledge of any particular officer.

[6.880] In Attorney-General (Qld) v Lovitt 548 it was held to be scurrilous abuse, and therefore a scandalising contempt, to call a magistrate “a cretin”, since it was tantamount to asserting that the magistrate lacked the necessary intellectual power to discharge the important functions of his judicial office. Such a comment had the requisite tendency to impair public confidence in the court. 549 Similarly, in Director of Public Prosecutions v Francis, radio station 5AA presenter Robert Francis and its operator Festival City Broadcasters Pty Ltd, 547

For another example of comments held to amount to scurrilous abuse see R v Gray (1900) 82 LTR 534; [1900] 2 QB 36.

548 549

Attorney-General (Qld) v Lovitt [2003] QSC 279. Had the magistrate heard the comment it might have been dealt with as a contempt in the face of the court.

[6.880] 447

Australian Media Law

pleaded guilty to a charge of scandalising contempt for comments made on air by Francis in which he criticised a Magistrate’s decision to entertain a bail application when it was the Magistrate’s statutory duty to do so, stated that the Magistrate was a “loony” who should have a psychiatric examination for even considering granting bail and indicated that the Magistrate’s face should be “smashed in”. 550 The scurrilous abuse cases can create an ironic situation. The irony consists in the fact that the more extravagant, inflammatory and unintelligent the abuse, the less likely it is that it will have a real tendency to impair public confidence in the administration of justice, as no right thinking member of the public would take it seriously. 551 In these circumstances, the abuse is more likely to impair the reputation and credibility of the person who uttered it. 552 Courts have been quick to identify this irony and to assert that the good sense of the community is ordinarily a sufficient safeguard against abuse or scandalous disparagement. 553

Allegations of partiality or impropriety [6.890] The most fundamental expectation of a judge is that he or she will act impartially. Accordingly, criticism can constitute contempt if it excites misgivings as to the integrity, propriety and impartiality which a judge brings to the exercise of his or her judicial duties. 554 However, not every criticism which answers this description will constitute a contempt. For example, it does not necessarily amount to a contempt of court to claim that a court or judge has been influenced, consciously or unconsciously, by a particular consideration in respect of a matter which has been determined, unless the language used reduces the criticism to mere scurrility. 555 Such criticisms routinely appear in academic journals. Furthermore, it does not amount to a contempt to allege that a judge may, in approaching a problem, be influenced by his or her character and general outlook, 556 or that sentences vary in apparently similar circumstances with the habit of mind of the judge, which is undoubtedly the case. 557 Further, allegations of general bias – for example, that the judiciary are generally white Anglo/Celtic males who subconsciously discriminate against females – are also not usually met with prosecutions for contempt. Finally, it is not a contempt to impute improper motives to a judge if the judge’s conduct is deserving of the allegation. One instance is where a judge descends into the arena and embarks on extensive and plainly biased questioning of a defendant in a

550

Director of Public Prosecutions v Francis (2006) 95 SASR 302; [2006] SASC 211.

551 552

554 555

See Gould (2010) 15 Media and Arts Law Review 23 at 29. Anissa Pty Ltd v Parsons [1999] VSC 430 at [22]; Saltalamacchia v Parsons [2000] VSCA 83. This is particularly true of disgruntled litigants whose comments might be characterised as an impetuous emotional response: Martin v Trustrum [2003] TASSC 50 at [36]. Bell v Stewart (1920) 28 CLR 419 at 429; Gallagher v Durack (1983) 152 CLR 238 at 243; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 33; Mills v Townsville City Council (No 2) [2003] QPEC 18. It has been noted that the greater the inclination of judges to rely on the good sense of the community, the more life is squeezed out of the offence: Gould (2010) 15 Media and Arts Law Review 23 at 36. R v Dunbabin; Ex parte Williams (1935) 53 CLR 434 at 442. Attorney-General (NSW) v Mundey [1972] 2 NSWLR 887 at 910.

556 557

R v Brett [1950] VLR 226 at 231. Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322 at 336.

553

448 [6.890]

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criminal trial. 558 However, it will generally constitute contempt to make unjustified allegations that a particular judge or the judiciary as a whole “has been affected by some personal bias against a party”, 559 or has acted mala fide, corruptly, 560 or “has failed to act with the impartiality required of the judicial office”, 561 or has deferred to an outside institution such as a trade union. Contempts of this nature are not confined to insinuations that a judge favoured one party over another, but encompass allegations that a judgment is based on any improper motive or consideration. 562 Unlike the position in relation to scurrilous abuse, an allegation of judicial partiality or bias can amount to a contempt irrespective of the vehemence of the language used. 563 The following are some instances of comments held to amount to contemptuous allegations of partiality or impropriety. Example

Wade v Gilroy [6.900] Wade v Gilroy (1986) 10 Fam LR 793 A 20 page brochure was published to promote an Australian television film or mini-series entitled “Contempt”. The title page depicted a grotesque monkey-like effigy of a bewigged judge overlooking a desk on which were lying wads of high denomination bank notes, a photograph of two children and a whip. The brochure claimed that the mini-series was firmly based on fact and tells the story of two custody battles, one being the largest Australia has known and the other the longest. A judge of the Family Court who ordered the children in one of the cases to be returned to the husband in the proceedings was identified by name in the brochure. It was alleged that in making this order, the judge was influenced by the wealth and influence of the husband. The brochure was held to constitute a contempt of the Family Court as it implied that the judge had bowed to wealth and influence in a custody case. It was immaterial that the judge was actually named; the nub of the contempt was that the story was alleged to be based on fact. In assessing the tendency of the brochure, the court had regard to the fact

558 559

560

561 562 563

Ahnee v Director of Public Prosecutions [1999] 2 AC 294. In Australia, it may be more accurate to describe the offence as having been committed, but as exonerated by the defence of truth or fair comment. Attorney-General (NSW) v Mundey [1972] 2 NSWLR 887 at 910-911. See, eg, In the Matter of “The Evening News” Newspaper (1880) 1 NSWLR (L) 211; R v Hoser & Kotabi Pty Ltd [2001] VSC 443; Hoser & Kotabi Pty Ltd v The Queen [2003] VSCA 194; Bell v Umina Beach Bowling Club Ltd [2003] NSWSC 846 (prosecution for contempt not actually pursued). Environment Protection Authority v Pannowitz [2006] NSWLEC 219 (held to be a scandalising contempt for a defendant to publish in a notice in a newspaper an assertion that “this matter has been referred by the defendant to ICAC for further investigation” as it clearly suggested that the Court had acted corruptly in arriving at its judgment in the matter in question). Attorney-General (NSW) v Mundey [1972] 2 NSWLR 887 at 910-911. Walker (1985) 101 Law Quarterly Review 359 at 363. Caldwell [1994] New Zealand Law Journal 442 at 444.

[6.900] 449

Australian Media Law Wade v Gilroy cont. that it was a sophisticated publication designed for circulation to influential members of the electronic media.

Example

Attorney-General (NSW) v Mundey [6.910] Attorney-General (NSW) v Mundey [1972] 2 NSWLR 887 Phillips, an employee in the building trade, and Pringle, President of the Builders’ Labourers’ Federation, were each charged with malicious injury to property, namely, two goal posts at the Sydney Cricket Ground. The injury was inflicted as a protest against an invitation which had been extended to the South African Rugby Union team to play in Australia at a time when apartheid policies were still in place in South Africa. At their trial, the defendants sought to rely on United Nations documents directed against apartheid policies. The judge informed the jury that there was no Australian law which gives a person the right to damage the property of another in order to give effect to a United Nations resolution or declaration upon racial discrimination, and that they were simply being asked to decide whether the defendants had damaged property in breach of New South Wales criminal law. The jury found the defendants guilty. On the day of the sentencing, several hundred builders’ labourers were present at the Darlinghurst Court of Quarter Sessions to hear the sentence. The defendants were fined and placed on a good behaviour bond. Mundey, the secretary of the Federation, was in court when the sentence was pronounced. After he left the court, he participated in an impromptu interview with three television stations. During the course of that interview, Mundey made three statements which led to him being charged with scandalising contempt. First, he stated that the trial and sentences were a miscarriage of justice, and that counsel for the defendants had been prevented from giving very important material, and that as a result, the case could not be called a real case. Second, he stated that the case showed that the judge was a racist judge and demonstrated the extent to which racism is ingrained within Australian society. Finally, he claimed that the spontaneous action of workers walking off jobs and the fact that the Builders’ Labourers’ Federation were calling a national strike had made the racist judge change his mind about sending Phillips and Pringle to jail. At least one television station chose to broadcast these statements in an edited version of the interview. As a result, the Attorney-General sought an order that Mundey be committed or otherwise punished for scandalising contempt. 564 In the New South Wales Court of Appeal, Hope JA held that the first statement did not constitute a contempt. He accepted that Mundey held strong views about racism and

564

The Attorney-General also alleged that the statements constituted a sub judice contempt of court because they were made before the time for an appeal had expired. The court held that this type of contempt was not made out on the facts.

450 [6.910]

Chapter 6 – Contempt of Court Attorney-General (NSW) v Mundey cont. apartheid, and regarded the statement as no more than a view that what Mundey thought should have been the trial of a racist issue was simply dealt with as a trial of an issue relating to damage to property. Such a statement did not have any tendency to interfere with the administration of justice. Hope JA also found that Mundey’s allegation that the judge was racist was not contemptuous. In so doing he accepted Mundey’s explanation that he was speaking about racism in Australian society generally, and that by the exclusion of what he regarded as a proper examination of racist considerations, the trial evidenced the extent to which everyone from the judge to the workers was affected by deeply ingrained racism. It was an attack upon society and its laws, not upon the judge or court as such. The third statement was held to be a contempt. The words used by Mundey inferred that the judge had decided to send the defendants to jail, but had changed his mind because he was overawed by the action of the workers in walking off the job to attend the trial and by the Federation’s threat to call a national strike. These words were calculated to express a view that the judge, having made up his mind to take a particular course of action, was overawed into taking another course of action. This constituted a contempt of court, as it tended to induce a lack of confidence in the ordered and fearless administration of justice.

[6.920] Ten years later, Norm Gallagher, then Federal Secretary of the Australian Building Construction Employees’ and Builders’ Labourers’ Federation, made similar comments in an impromptu interview conducted shortly after his successful appeal against an earlier conviction for contempt of court. He said: I’m very happy to the rank and file of the union who has shown such fine support for the officials of the union and I believe that by their actions in demonstrating in walking off jobs … I believe that that has been the main reason for the court changing its mind.

The Federal Court held that Gallagher’s commendation of the court’s decision was a contempt of court and sentenced him to three months’ imprisonment. The finding and sentence were upheld by the High Court. 565 Gibbs, Mason, Wilson and Brennan JJ held that Gallagher’s statement could only mean that he believed the court was largely influenced in reaching its decision by the action of the members of the Federation in demonstrating as they had done, that is, that the court had bowed to outside pressure in reaching its decision. This imputation of a grave breach of duty by the court was unwarranted. In considering whether the statement was calculated to lower the authority of the court and whether it was in the interests of the administration of justice to fine or imprison Gallagher, the High Court held that the Federal Court was entitled to take into account the fact that Gallagher was a union leader well known to the Australian public, holding an important office in a national trade union, and the fact that

565

Gallagher v Durack (1983) 152 CLR 238.

[6.920] 451

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some members of the public may have been more ready to accept the assertions as true because of their awareness that on some occasions, employers and governments are influenced by trade union pressure. 566 Allegations of bias need not be directed at individual judges. In R v Fowler 567 an article in a newspaper published in a mining town on the West Coast of Tasmania which contained an allegation of judicial hostility against West Coast litigants was held to be a contempt. In Fitzgibbon v Barker, Gardner and Leader Associated Newspapers Pty Ltd; Re Schwartzkopff, 568 a suburban newspaper published an account of a demonstration protesting at the imprisonment of a man who, the demonstrators claimed, had been jailed for two years only because he wanted to see his children. The court found that, taken as a whole, the report would leave readers with the strong impression that non-custodial parents, mainly fathers, were jailed by the Family Court for wanting to see their children. The Court held that the report was a gross distortion of the facts concerning the man in question (the man had actually been jailed for repeated breaches of non-molestation orders protecting his wife) and of the role of the Family Court in general. It was held to be a contempt. Although these cases establish that an allegation of bias can be made against a court collectively, an apprehension of bias on the part of one judge in a court cannot translate into an apprehension of bias on the part of another judge of the same court. 569 The principles of judicial independence, which includes the independence of judges from each other, prevent allegations of “institutional bias” from being successful. 570 Attacks upon the independence, impartiality and integrity of witnesses 571 and court officers 572 can also amount to this form of scandalising contempt, as can attacks on jurors. For example, in Prothonotary of the Supreme Court of New South Wales v Katelaris a disgruntled defendant was found guilty of contempt for remarks made in a media interview in which he accused the jurors who had tried his case of being a group of 12 sheep. 573

566

In a strong dissent, Murphy J held that the principles espoused in R v Dunbabin; Ex parte Williams (1935) 53 CLR 434 placed an undue limitation on freedom of expression. Murphy J advocated the adoption of American decisions which require a clear and present danger to judicial administration rather than a mere tendency to lower the authority of a court.

567 568

R v Fowler (1905) 1 Tas LR 53. Fitzgibbon v Barker, Gardner and Leader Associated Newspapers Pty Ltd; Re Schwartzkopff (1993) FLC 92-381. Re Colina; Ex parte Torney (1999) 200 CLR 386. D Butler, “Scandalising Contempt Under the Family Court Act 1975 and “Institutionalised” Bias” (1999) 4 Media and Arts Law Review 277.

569 570 571 572

573

Re Johnson (1887) 20 QBD 68. Allegations that a master of a court was biased and had unlawfully conspired to secretly pre-determine cases for financial gain may amount to a scandalising contempt, since a master is a judicial officer: Martin v Trustrum [2003] TASSC 50. See also R v Trustrum [2005] TASSC 88, where the deputy registrar of the Tasmanian Supreme Court was held to be protected by the law of scandalising contempt. Prothonotary of the Supreme Court of New South Wales v Katelaris [2008] NSWSC 389.

452 [6.920]

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Defences: truth and fair comment [6.930] Although the law is not entirely settled, it seems that, in Australia, fair comment is available as a defence to a charge of scandalising contempt, although it is probably more accurately described as “a restraint on what qualifies as scandalising speech”. 574 In R v Nicholls Griffith CJ stated that: I am not prepared to accede to the proposition that an imputation of want of impartiality to a judge is necessarily a contempt of court. On the contrary, I think that, if any judge of this court or of any other court were to make a public utterance of such character as to be likely to impair the confidence of the public, or of suitors or any class of suitors in the impartiality of the court in any matter likely to be brought before it, any public comment on such an utterance, if it were a fair comment, would, so far from being a contempt of court, be for the public benefit, and would be entitled to similar protection to that which comment upon matters of public interest is entitled under the law of libel. 575

For a statement to constitute fair comment it must be “honest criticism based on rational grounds” and be “discussion which is fairly conducted”, “made in good faith” and “not motivated by malice or by an intention to undermine the standing of courts within the community”. 576 The defence is unlikely to have much practical scope for operation in relation to scurrilous abuse since, by definition, it is unlikely to be characterised as fair. Although the position has not always been clear, 577 it seems that the weight of authority regards truth as an answer to a charge of scandalising contempt, although, like fair comment, it probably does not constitute a formal defence. For example, in Gallagher v Durack, 578 the majority stated that the purpose of scandalising contempt is to prevent “baseless” attacks on the integrity or impartiality of courts and in R v Fletcher; Ex parte Kisch the court stated that it would only intervene where the attacks were “unwarrantable”. 579 A strong indication that the defences of justification and fair comment can be used to defeat a charge of scandalising contempt is to be found in the joint judgment of Deane and Toohey JJ in Nationwide News Pty

574

Gould (2010) 15 Media and Arts Law Review 23 at 40. If so, fair comment is not a defence in the true sense of the word.

575

R v Nicholls (1911) 12 CLR 280 at 286. This statement has been cited with approval in several cases including R v Fletcher; Ex parte Kisch (1935) 52 CLR 248 at 257-258; Attorney-General (NSW) v Mundey [1972] 2 NSWLR 887 at 910; Ahnee v Director of Public Prosecutions [1999] 2 AC 294 at 306; R v Hoser & Kotabi Pty Ltd [2001] VSC 443 at [58]. However, in Re Colina; Ex parte Torney (1999) 200 CLR 386 Gleeson CJ and Gummow J left the matter open: at [4]. R v Hoser & Kotabi Pty Ltd [2001] VSC 443 at [66]. The Court of Appeal accepted the existence of the defence of fair comment and agreed with the way in which the trial judge had interpreted and applied it: Hoser & Kotabi Pty Ltd v The Queen [2003] VSCA 194. But see Dhooharika v Director of Public Prosecutions (Mauritius) [2014] UKPC 11, where the Privy Council held that a defendant who had acted in good faith did have a “defence” to an allegation of scandalising contempt, even if the criticism was not objectively fair, although the burden remained on the prosecution to prove an absence of good faith.

576

577 578 579

See Australian Law Reform Commission, Contempt, Report 35 (1987), [415] and the cases cited therein. Gallagher v Durack (1983) 152 CLR 238 at 243. R v Fletcher; Ex parte Kisch (1935) 52 CLR 248 at 257. See also Fitzgibbon v Barker, Gardner and Leader Associated Newspapers Pty Ltd; Re Schwartzkopff (1993) FLC 92-381, where the court suggested that the newspaper should have made inquiries as to the truth of the allegations made by the protesters against the court.

[6.930] 453

Australian Media Law

Ltd v Wills, 580 where it was suggested that the recognition of these defences may be necessary to ensure that the offence does not infringe the implied freedom of political communication. 581 In McGuirk v University of NSW, James J held that it was the responsibility of the defendant to produce sufficient evidence to raise the issue of truth; the onus is then on the prosecution to prove beyond reasonable doubt that the allegations said to scandalise the court were not true. 582

Constitutional protection of free political communication [6.940] The relationship between scandalising contempt and free speech has been tested in countries that have an express constitutional guarantee of freedom of expression. 583 In many of these jurisdictions, the offence has survived the introduction of a constitutional guarantee, including New Zealand, 584 Mauritius, 585 Fiji, 586 Hong Kong 587 and South Africa. 588 Moreover, the European Court of Human Rights has not declared the offence to be incompatible with Art 10 of the European Convention on Human Rights. 589 The offence has not fared as well in Canada 590 or the United States. 591 Two Australian jurisdictions – the Australian Capital Territory and Victoria – have enacted legislation which confers a right to freedom of expression, 592 but the effect of this legislation on scandalising contempt has not been considered by courts in these jurisdictions. 580 581 582 583 584

585 586 587

588

Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 67-68. Similar indications are to be found in the judgments of Mason CJ (at 31-33), Brennan J (at 38-39) and Dawson J (at 90). See also R v Hoser & Kotabi [2001] VSC 443 at [58]-[91], [183]-[194]. McGuirk v University of NSW [2009] NSWSC 1058 at [262]-[268]. For a discussion of the impact of bills of rights on scandalising contempt law see T Allen, “Scandalising the Court: The Impact of Bills of Rights” (2002) 10(1) Asia Pacific Law Review 1. In Solicitor-General v Smith [2004] 2 NZLR 540 at [132]-[136], the New Zealand High Court held that the offence of scandalising contempt is a reasonable limit upon freedom of expression which can be demonstrably justified in a free and democratic society and that, accordingly, it survived the enactment of the Bill of Rights Act 1990 (NZ). The Court denied that the continued existence of the offence had created a chilling effect on freedom of expression. By contrast, the Law Commission has recently expressed a preliminary view that retention of the offence is untenable in light of freedom of expression and the views held in modern New Zealand society: Law Commission, Contempt in Modern New Zealand, Issues Paper 36 (2014) at [6.62]. Ahnee v Director of Public Prosecutions [1999] 2 AC 294 (in respect of the Constitution of Mauritius, s 12). Chaudhary v Attorney-General [1999] FJCA 27 (in respect of the Constitution of Fiji 1990, s 13). Wong Yueng Ng v Secretary for Justice [1999] 3 HKC 143; Secretary of State for Justice v The Oriental Press Group Ltd [1998] 2 HKLRD 123. The case is discussed in T Hamlett, “Scandalising the Scumbags: The Secretary For Justice Vs The Oriental Press Group” (2001) 11 AsiaPacific Media Educator 20. R v Mamabolo 2001 (3) SA 409 (in respect of the Constitution of the Republic of South Africa Act 1996, ss 16(1), 36(1).

589

See Dhooharika v Director of Public Prosecutions (Mauritius) [2014] UKPC 11 at [39] citing De Haes and Gijsels v Belgium (1998) 25 EHRR 1 and Zugic v Croatia (no 3699/08, 31 May 2011). See also United Kingdom Law Commission, Contempt of Court: Scandalising the Court Report No 335 (2012) at [48]-[56].

590

In R v Kopyto (1987) 47 DLR (4th) 213 the majority of the Ontario Court of Appeal held that the offence in its present form did not survive the guarantee of free speech in the Canadian Charter of Rights and Freedoms, s 2(b).

591

Bridges v California 314 US 252 (1941); Pennekamp v Florida 328 US 331 (1946); Craig v Harney 331 US 367 (1947); Garrison v Louisiana 379 US 64 (1964) (in respect of the First Amendment). Human Rights Act 2004 (ACT), s 16; Charter of Human Rights and Responsibilities Act 2006 (Vic), s 15.

592

454 [6.940]

Chapter 6 – Contempt of Court

In Australia, the precise impact of the implied freedom of political communication on the common law offence of scandalising the court has not yet been comprehensively determined by the courts. Whilst it is clear that the offence has survived the recognition of the implied freedom, 593 two important issues remain unresolved. The first is whether scandalous publications concerning courts and judges constitute communications on government or political matters. Unless they can be characterised in this way, such publications are not within the purview of the implied freedom. 594 Secondly, it is not yet clear whether, and if so, to what extent, the offence needs to be modified to be brought into conformity with the implied freedom. 595 Many academic commentators have suggested that this form of contempt is more at risk from the impact of the implied freedom than sub judice contempt, and that modifications to the offence are necessary in order to procure conformity with the implied freedom. Several aspects of the offence have been highlighted as problematic. They include: the vague nature of the offence, the absence of a true mens rea requirement, the fact that the offence demands no proof that the words will bring a court into contempt or lower its authority 596 and the fact that it is not necessary to show that the scandalous comments pose a threat to a pending judicial proceeding. 597 These issues impact on whether scandalising contempt is “reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of a system of representative and responsible government”. The expectation that the implied constitutional freedom might necessitate a reformulation of aspects of the offence of scandalising has not, been borne out in the cases. In fact, the offence appears to have remained relatively unchanged by the implied freedom. In Nationwide News Pty Ltd v Wills, 598 the High Court held that a section of the Industrial Relations Act 1988 (Cth) which made it an offence to use words calculated to bring the Australian Industrial Relations Commission or a member into disrepute, infringed the implied freedom of political discussion and was therefore beyond the legislative power of the Commonwealth. The High Court made it clear that it was legitimate and justifiable in the public interest to impose some legislative control on the kind of attacks that could be made upon the Commission or its members. The objection to the section was that it was not confined to attacks which were unfounded and illegitimate, but prohibited all criticism, whether or not it was true and fair. Some members of the court contrasted the legislation with the common law offence of 593 594

The number of scandalising cases decided after the High Court’s recognition of the implied freedom bear witness to this. For a discussion of whether comment about the courts is political speech see: Cram (2002), p 170; Justice R Sackville, “How Fragile Are the Courts? Freedom of Speech and Criticism of the Judiciary” (2005) 31 Monash University Law Review 191 at 206-207. The required nexus may exist if the communication about the judiciary expressly or impliedly calls for executive action, such as the removal of the judge.

595

The issue has been considered in a number of articles: E Campbell and HP Lee, “Criticism of Judges and Freedom of Expression” (2003) 8 Media and Arts Law Review 77; Litaba (2003) 8 Deakin Law Review 113 at 143-144; Justice R Sackville (2005) 31 Monash University Law Review 191 at 203-209.

596

This was one reason why the Ontario Court of Appeal in R v Koptyo (1987) 39 CCC (3d) 1 held that the offence conflicted with the guarantee of freedom of expression in the Canadian Charter of Rights and Freedoms. This is to be compared with sub judice contempt, where the countervailing public interest in protecting a particular trial from prejudicial publicity is far more tangible and obvious. Nationwide News Pty Ltd v Wills (1992) 177 CLR 1.

597 598

[6.940] 455

Australian Media Law

scandalising the court, where, it was claimed, the defences of truth and fair comment are available These defences were perceived as protecting the offence from violating the implied freedom, as they permit legitimate criticisms. In R v Hoser & Kotabi Pty Ltd 599 Eames J stated that the implied right did not alter any of the common law principles since it added no greater emphasis to the importance of recognising the right to free speech than had already been firmly embedded at common law. 600

Penalties for criminal contempt Types of penalties [6.950] The purposes to be served by imposing a penalty for criminal contempt of court are to denounce and punish the contemnor for acts which have impeded or interfered with the administration of justice, to deter the contemnor and others from committing similar contempts in the future and to uphold the public interest in maintaining the authority of the courts and the interests of litigants. 601 However, it is not essential that a person found guilty of contempt be punished. A court is entitled to take the view that the burden of a trial and the published findings of a court, which are frequently coupled with an order to pay costs, are adequate to vindicate the public interest, punish the offender and deter others. 602 Statutory restrictions apart, superior courts of record have an inherent jurisdiction to punish criminal contempts by the imposition of a fine of unlimited amount. Fines as high as $200,000 have been imposed on newspaper publishers and broadcasters. 603 Imprisonment for criminal contempt is generally reserved for serious cases where the conduct of the contemnor has been intentional or reckless. 604 Accordingly, it is most uncommon in relation to media contempts, where interference with the administration of justice is usually unintentional. Nevertheless, members of the media and interviewees have been imprisoned for most types 599 600

R v Hoser & Kotabi Pty Ltd [2001] VSC 443 at [90]. When the case went on appeal to the Victorian Court of Appeal, the Crown notified all Attorneys-General under s 78B of the Judiciary Act 1903 (Cth) that the case raised a constitutional issue, namely, whether and to what extent the law of contempt of court infringes the implied freedom of communication. However, no Attorney-General desired to attend or make submissions, nor did the contemnor raise the matter in argument. The Court of Appeal did not discuss the implied freedom in detail, but expressed its agreement with the trial judge that the law of scandalising contempt satisfied the two limb test for validity laid down in Lange, assuming it to be applicable: Hoser & Kotabi Pty Ltd v The Queen [2003] VSCA 194 at [25]. In any event, the Court queried whether the publication of matters about judges and magistrates is a communication concerning “political or government matters”.

601 602

Director of Public Prosecutions (Cth) v United Telecasters Sydney Ltd (1992) 7 BR 364 at 376. R v David Syme [1982] VR 173 at 178; Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 742; R v Spectator Staff Pty Ltd [1999] VSC 107 at [27]; Attorney-General (Qld) v WIN Television Qld Pty Ltd [2003] QSC 157 at [11]; R v Herald & Weekly Times Pty Ltd [2008] VSC 251 at [16].

603

Director of Public Prosecutions v Wran (1987) 86 FLR 92 (newspaper proprietor fined $200,000); Attorney-General (NSW) v Radio 2UE Sydney Pty Ltd [1998] NSWSC 28 (radio station fined $200,000). Hinch v Attorney-General (Vic) (1987) 164 CLR 15; Attorney-General (NSW) v Radio 2UE Sydney Pty Ltd [1998] NSWSC 28.

604

456 [6.950]

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of criminal contempt including scandalising contempt, 605 sub judice contempt 606 and the refusal to answer questions concerning the identity of sources. 607 The maximum period of imprisonment that may be imposed by a superior court is theoretically unlimited. 608 A court may also censure a contemnor. There are differences between the jurisdictions as to whether the inherent power of the courts to punish contempts has been absorbed, modified or expanded by the enactment of special sentencing laws. 609 An injunction to restrain a threatened contempt may be granted by a superior court which has power both to punish contempts and issue injunctions. Inferior courts might not have the power to issue injunctions, and clearly have no implied power to punish contempts other than contempts in the face of the court. 610 Persons seeking an injunction to restrain a threatened contempt are making a claim of a civil nature, since no crime has been committed at the time the injunction is sought. 611 Accordingly, they bear the civil onus of proof and must demonstrate to the court that there is a serious question to be tried that the publication sought to be restrained would, if published, have a tendency to prejudice the administration of justice. 612 Although the decision to grant an injunction is always in the discretion of the court, courts frequently assert that they are unlikely to grant injunctions except in the most serious cases. 613 There are a number of reasons why this is so. First, courts regard the prior restraint of a publication as a drastic interference with freedom of speech. 614 Secondly, courts have a “wise and settled practice” of not issuing injunctions to restrain the commission of a criminal act “unless the penalties available under the criminal law have proved to be inadequate to

605 606 607 608 609

610

Gallagher v Durack (1983) 152 CLR 238 (the High Court upheld Gallagher’s conviction and sentence of three months’ imprisonment). Hinch v Attorney-General (Vic) [1987] VR 721 (radio broadcaster Derryn Hinch was imprisoned for 28 days). Nicholls v Director of Public Prosecutions (1993) 61 SASR 31. Gallagher v Durack (1983) 152 CLR 238 at 249; New Zealand Law Commission: Contempt in Modern New Zealand, Issues Paper 36 (2014) at [2.9]. Martin v Trustrum (No 3) [2003] TASSC 80; Hugo Rich v Attorney-General (Vic) (1999) 103 A Crim R261; Director of Public Prosecutions v Johnson (2002) 6 VR 227; Environment Protection Authority v Pannowitz (No 2) (2006) 153 LGERA 126; R v Herald & Weekly Times Pty Ltd [2008] VSC 251 at [42]-[51]; Grocon v Construction, Forestry, Mining and Energy Union (No 2) [2014] VSC 134 at [75]-[84]. Sentencing legislation, where it applies, may permit courts to impose a suspended sentence, order an offender to do community service or place the offender on a good behaviour bond. United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 at 332. See [6.40].

611 612

New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 at 182-183. Waterhouse v Australian Broadcasting Corporation (1986) 6 NSWLR 716; (1986) 6 NSWLR 733; Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) 5 BR 10 at 19; Kamm v Channel Seven Sydney [2005] NSWSC 699. But note that in Attorney-General (UK) v Random House Group Ltd [2009] EWHC 1727 Tugendhat J was of the opinion that the criminal standard of proof should apply since, in reality, the decision to grant an injunction is likely to be a final one, and is not merely granted to retain the status quo until trial: at [44]. It would seem that the law in the United Kingdom and Australia may be at odds on this point: News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248 at 262.

613

Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) 5 BR 10 at 19; Attorney-General (NSW) v Time Inc Magazine Co Pty Ltd (unreported, NSW Court of Appeal, Kirby P, Handley and Sheller JJA, 7 June 1994); Attorney-General (UK) v Random House Group Ltd [2009] EWHC 1727 at [16]. Attorney-General v British Broadcasting Corporation [1981] AC 303 at 362.

614

[6.950] 457

Australian Media Law

deter the commission of the offences”. 615 Thirdly, there are problems of proof associated with obtaining an injunction. In many cases, an applicant will be unable to prove with any degree of particularity what the contents of an anticipated publication will be, thus making it impossible for a court to consider the precise terms of the apprehended contempt. 616 In this situation, a court will grant an injunction only if it can be inferred on reasonable grounds that a publication of offending content will probably be made unless restrained. 617 Proof is not as problematic where the publication of a photograph of an accused person is in issue. In this case, courts readily find that identity might be in issue in the case and that an injunction should be granted to prevent the publication of such photographs. 618 A final problem with an injunction is that the reasonably precise terms in which it must be framed might lead to the erroneous conclusion that slightly different behaviour from that proscribed by the injunction would be acceptable. 619 As explained in [6.790], superior courts are increasingly using their powers to make orders suppressing the publication of information in order to avoid an apprehended sub judice contempt. The Victorian Supreme Court described such an order as being “akin” to that of issuing a quia timet injunction to restrain a threatened contempt, 620 but the precise nature of the differences between the two remains a vexed question. A person found guilty of contempt will usually be required to pay the costs of the action, either in addition to, or in lieu of, other penalties. Conversely, a successful defendant will usually recover costs. However, there are two circumstances in which a court might exercise its discretion to withhold costs from a successful defendant. 621 The first is where the defendant’s conduct, whilst not contemptuous, resulted in a trial being aborted and a new trial ordered at great public expense. In this case, it has been suggested that the defendant should not be able to look to the public purse for the costs of the contempt proceedings. The second is where the defendant, though not guilty of contempt, has acted culpably or carelessly.

Relevant factors [6.960] In determining what sanction to impose, courts take into account the nature and circumstances of the contempt, including: • the objective seriousness of the contempt, including the strength of the language constituting the contempt; 622 615 616

Attorney-General (UK) v Random House Group Ltd [2009] EWHC 1727 at [28]. In Attorney-General v Times Newspapers Ltd [1974] AC 273, the court was in a position to grant an injunction, as it had a copy of the proposed article before it.

617 618

John Fairfax Publications Pty Ltd v Doe (1994) 37 NSWLR 81 at 103. Attorney-General (NSW) v Time Inc Magazine Co Pty Ltd (unreported, NSW Court of Appeal, Kirby P, Handley and Sheller JJA, 7 June 1994). Law Reform Commission of Western Australia (2003), p 46.

619 620

General Television Corporation Pty Ltd v Director of Public Prosecutions (2008) 19 VR 68; [2008] VSCA 49 at [28].

621 622

Registrar of Court of Appeal v Willesee (1985) 3 NSWLR 650 at 661 per Kirby P. Attorney-General (NSW) v Radio 2UE Sydney Pty Ltd [1998] NSWSC 28; The Queen v Hinch (No 2) [2013] VSC 554 at [12].

458 [6.960]

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• the extent of the prejudicial tendency, including the timing of a publication in relation to a trial; 623 • whether actual harm has resulted from the contempt, such as a trial being aborted or delayed, 624 or a witness being harmed; 625 • the personal circumstances of the contemnor, including his or her character 626 and means; 627 • the culpability of the contemnor, that is, whether his or her interference with the administration of justice was intentional or reckless, grossly negligent, or done without any appreciation of the potential consequences; 628 • the need to deter the contemnor and others from repeating similar acts; 629 • in relation to contempts by publication, whether the media organisation has implemented a system that is designed to avoid or minimise the risk of publication of contemptuous material (for example, delay devices for the broadcast of live material, marking material so that it must not be printed before certain checks are made, educating staff about the law of contempt and circulating suppression order files that contain suppression orders known to be in existence) 630 and whether the systems are policed to ensure that they work in practice; 631 623

624

625 626 627

628

629

630

631

R v Truth Newspaper (unreported, Vic Supreme Court, Phillips J, 16 December 1993). The article in question was published towards the end of a long trial and could have caused the trial to abort. The court noted that nothing would have been lost in delaying publication until after the conclusion of the trial. Attorney-General (NSW) v Time Inc Magazine Co Pty Ltd (unreported, NSW Court of Appeal, Gleeson CJ, Sheller and Cole JJA, 21 October 1994); Attorney-General (NSW) v Radio 2UE Sydney Pty Ltd [1998] NSWSC 28. R v Herald & Weekly Times Ltd [2009] VSC 85. Attorney-General (NSW) v Dean (1990) 20 NSWLR 650 at 657 (contemnor regarded as a person of good character with a fine record of public service). In Attorney-General (NSW) v Radio 2UE Sydney Pty Ltd [1998] NSWSC 28, Meagher JA, in dissent, described the fine of $50,000 imposed on high profile radio presenter John Laws by the majority as the equivalent of a slap on the wrist and as the amount Laws might spend on a cocktail party! See also: Attorney-General (Qld) v WIN Television Qld Pty Ltd [2003] QSC 157 at [33]. Director of Public Prosecutions v Wran (1987) 86 FLR 92 at 104-106; Registrar of Court of Appeal v Willesee (1985) 3 NSWLR 650 at 652; Attorney-General (NSW) v Dean (1990) 20 NSWLR 650 at 658; Registrar Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 314; Attorney-General (NSW) v Time Inc Magazine Co Pty Ltd (unreported, NSW Court of Appeal, Gleeson CJ, Sheller and Cole JJA, 21 October 1994); Attorney-General (NSW) v Radio 2UE Sydney Pty Ltd [1998] NSWSC 28; R v Spectator Staff Pty Ltd [1999] VSC 107 at [32]; Attorney-General (Qld) v WIN Television Qld Pty Ltd [2003] QSC 157 at [25]; The Queen v Hinch (No 2) [2013] VSC 554 at [12]. In Gallagher v Durack (1983) 152 CLR 238, the High Court held that, in deciding whether to imprison a contemnor, it is permissible to take into account the fact that the contemnor is unlikely to personally pay any fine imposed on him or her, with the consequence that a fine would neither punish nor deter the contemnor. R v David Syme & Co Ltd [1982] VR 173 at 182; R v Herald and Weekly Times Ltd (unreported, Vic Supreme Court, Harper J, 15 April 1996); Attorney-General (NSW) v Radio 2UE Sydney Pty Ltd (unreported, NSW Court of Appeal, Priestley, Clarke and Handley JJA, 19 March 1993); Attorney-General (NSW) v Radio 2UE Sydney Pty Ltd [1998] NSWSC 28; Registrar Supreme Court of South Australia v Channel 9 SA Pty Ltd [2001] SASC 3; R v General Television Corporation Pty Ltd [2009] VSC 84. R v Nationwide News Pty Ltd (unreported, Vic Supreme Court, Gillard J, 18 February 1998).

[6.960] 459

Australian Media Law

• whether legal advice was sought and acted upon prior to publication; 632 • whether there has been a genuine demonstration of contrition and regret; 633 • whether there was a plea of guilty and an offer to pay costs; 634 • whether the breach resulted from a commercial decision taken in pursuit of economic gain without any reasonable extenuation; 635 • in the context of current affairs broadcasts, the general style and approach of the program to news commentary; 636 and • whether there are any previous convictions for contempt. 637 To date, courts have not ordered persons found guilty of contempt of court to pay for expenses incurred in respect of trials that have had to be aborted as a result of the prejudicial publicity. 638 It is unclear whether a litigant whose trial was aborted would be entitled to bring a civil action against the contemnor to recover compensatory damages for the loss.

632

Attorney-General (NSW) v Willesee [1980] 2 NSWLR 143 at 154, 160; Wade v Gilroy (1986) 10 Fam LR 793, 806-807; R v Truth Newspaper (unreported, Vic Supreme Court, Phillips J, 16 December 1993). If this factor is to carry significant weight, details of the advice should be put into evidence: R v Herald & Weekly Times Pty Ltd [2008] VSC 251 at [28].

633

R v Gray [1900] 2 QB 36 at 41; Wade v Gilroy (1986) 10 Fam LR 793 at 806-807; Attorney-General (NSW) v Dean (1990) 20 NSWLR 650 at 657; Attorney-General (NSW) v Time Inc Magazine Co Pty Ltd (unreported, NSW Court of Appeal, Gleeson CJ, Sheller and Cole JJA, 21 October 1994); The Queen v Hinch (No 2) [2013] VSC 554 at [12]. In Attorney-General (NSW) v Radio 2UE Sydney Pty Ltd [1998] NSWSC 28 the mitigating effect of an apology was nullified by the fact that Laws had proceeded to defend the contempt charges on flimsy grounds. It is relevant to consider whether an apology was spontaneous: Director of Public Prosecutions v Francis (No 2) (2006) 95 SASR 321; [2006] SASC 261 at [70].

634 635 636

R v The Herald & Weekly Times Ltd [2009] VSC 85 at [61]. Director of Public Prosecutions v Wran (1987) 86 FLR 92 at 117. Attorney-General (NSW) v Radio 2UE Sydney Pty Ltd (unreported, NSW Court of Appeal, Priestley, Clarke and Handley JJA, 19 March 1993); Attorney-General (NSW) v Radio 2UE Sydney Pty Ltd [1998] NSWSC 28. In these cases, the court regarded as relevant the fact that the programs in question were hosted by well-known presenters who were accustomed to stating their opinions on matters pertaining to the administration of justice in a way which involved them making emphatic and judgmental “spur of the moment” observations with little regard to their validity, and that it suited 2UE to allow the programs to operate in this way, as their style attracted large audiences. Attorney-General (NSW) v Mirror Newspapers Ltd [1980] 1 NSWLR 374 at 391; Attorney-General (NSW) v Willesee [1980] 2 NSWLR 143 at 160; Attorney-General (NSW) v Time Inc Magazine Co Pty Ltd (unreported, NSW Court of Appeal, Gleeson CJ, Sheller and Cole JJA, 21 October 1994). The New South Wales Law Reform Commission and the Law Reform Commission of Western Australia each recommended that contemnors should bear the costs of aborted trials: New South Wales Law Reform Commission (2003), Ch 14; Law Reform Commission of Western Australia (2003), pp 52-54. In Director of Public Prosecutions (Cth) v Sexton (2008) 181 A Crim R 507; [2008] NSWSC 152 at [60], Howie J called on parliament to consider investing courts with the power to make such orders where the publisher had been negligent, even if the publication did not amount to a contempt.

637

638

460 [6.960]

Confidentiality and Sources of Information

7

[7.10] INTRODUCTION ...................................................................................... 461 [7.20] ACCESSING GOVERNMENT INFORMATION – FREEDOM OF INFORMATION ......................................................... [7.20] Rationale ................................................................................................... [7.30] Process ...................................................................................................... [7.40] Exemptions ............................................................................................... [7.50] PUBLICATION OF INFORMATION IN BREACH OF CONFIDENCE ...... [7.50] Elements of an obligation of confidence ............................................... [7.60] [7.230]

462 462 462 463 464 464 465

Necessary quality of confidence ........................................ Information received in circumstances giving rise to obligation of confidence ............................................... [7.250] Threatened or actual unauthorised use of the information ....................................................................... [7.300] Identification of the information ........................................ [7.330] Justified disclosure as a defence ........................................................... [7.330] The iniquity rule ................................................................ [7.360] Disclosure in the public interest ......................................... [7.370] Remedies and sanctions ........................................................................ [7.380] The proper plaintiff ........................................................... [7.410] Interlocutory injunction ..................................................... [7.420] Permanent injunction ........................................................ [7.430] Damages ........................................................................... [7.440] Account of profits .............................................................. [7.450] Criminal contempt by publication ..................................... [7.500] Whistleblowers and the media .............................................................

477 480 481 481 484 486 487 488 489 490 490 491 494

[7.510] DISCLOSURE OF JOURNALISTS’ SOURCES ......................................... [7.510] Introduction ........................................................................................... [7.520] Options for a journalist’s privilege ....................................................... [7.530] The common law position ....................................................................

497 499 500

Instances where journalists have refused to answer questions .......................................................................... [7.580] The newspaper rule ........................................................... [7.590] Pre-trial discovery orders ................................................... [7.650] Statutory reform .................................................................................... [7.650] A guided judicial discretion ................................................ [7.660] A rebuttable presumption of non-disclosure ......................

473

497

[7.540]

502 504 507 514 514 516

Introduction [7.10] Sources of information are vital to the media’s functioning. The media without information is unable to inform, educate or entertain. However, accessing or disclosing sources of information may raise a number of legal issues. This chapter examines the legal [7.10] 461

Australian Media Law

issues which attend three types of sources: accessing government information by means of freedom of information, publication of information that others may wish to keep confidential including disclosures by whistleblowers, and attempts by journalists to keep secret their own confidential sources.

Accessing government information – Freedom of information Rationale [7.20] Whatever the previously-held views about the necessity or desirability of secrecy in government, freedom of information (FOI) is a hallmark of an open and democratic society. It has been said that a popular government without a means of acquiring popular information “is but a prologue to a farce or a tragedy, or perhaps both”. 1 A 1979 Senate Report identified three major justifications for FOI legislation: providing individuals with a right of access to information held by government; improving public scrutiny and accountability of government; and increasing public participation in the processes of government decision making. 2 Freedom of information was first enacted by the Commonwealth based on an American precedent and has been mirrored by legislation in all other Australian jurisdictions, whether under the nomenclature of freedom of information or a right to information. 3 The legislation in most Australian jurisdictions is designed to create a legally enforceable right of access to documents in the possession of a government agency or Minister, other than exempt documents. 4 In New South Wales, by contrast, it is expressed as a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. 5 However, the legislation is only intended to provide a mechanism for the making of, and responding to, formal requests for information. The legislation does not seek to provide an exclusive means by which government documents or information may be obtained.

Process [7.30] In most jurisdictions access is requested by filling in a form and paying the requisite fee. The relevant agency or Minister then has a prescribed time, such as 30 days, to take all 1

J Madison, cited in E M Kennedy, “Foreword: Is the pendulum swinging away from freedom of information?” (1981) 16 Harvard Civil Rights – Civil Liberties Law Review 311.

2

Report of the Senate Standing Committee on Constitutional and Legal Affairs, Freedom of Information (1979), Paper No 272/1979, Vol 14, pp 21-22. Freedom of Information Act 1982 (Cth); Freedom of Information Act 1989 (ACT); Government Information (Public Access) Act 2009 (NSW); Information Act (NT); Right to Information Act 2009 (Qld); Freedom of Information Act 1991 (SA); Right to Information Act 2009 (Tas); Freedom of Information Act 1982 (Vic); Freedom of Information Act 1992 (WA). The State Acts are based substantially on the Commonwealth model, but have minor variations. For a detailed discussion of freedom of information see, for example, “Freedom of Information” in The Laws of Australia (Lawbook Co., Sydney). All provisions mentioned in this chapter will be referring to the above Acts unless otherwise indicated. Cth: s 11; ACT: s 10; NT: ss 15 – 16; Qld: s 23; SA: s 12; Tas: s 7; WA: s 10(1); Vic: s 13. NSW: s 5.

3

4 5

462 [7.20]

Chapter 7 – Confidentiality and Sources of Information

reasonable steps to enable the applicant to be notified of a decision on the request. 6 Access may include allowing inspection or obtaining a copy. Where a request is refused, an internal review may be requested within another period, such as 30 days (or 15 days of limited access being granted). If the applicant is still dissatisfied, it may be possible to obtain external review by, for example, the Administrative Appeals Tribunal. In New South Wales such a reactive approach to open government was replaced by a more proactive model in 2009. Under the Government Information (Public Access) Act 2009 (NSW) there are four ways by which government information may be released: • “open access”, which requires that certain information such as an agency’s current publication guide, policy documents and register of government contracts must be available without charge and appear on the agency’s website; 7 • “proactive release”, which requires that agencies release as much information as possible without charge; 8 • “informal release of information”, which entails information being provided to members of the public who request information, subject to “reasonable conditions”; 9 and • “access application”, which is a formal method of seeking access to information that is not accessible by the other three means. 10 The “access application” is similar to the traditional reactive model of FOI previously operating in New South Wales and still operating in the other jurisdictions.

Exemptions [7.40] Information may be exempt from disclosure on the basis of the agency involved. Thus, for example, under the Commonwealth Act there is absolute protection for the documents of the security organisations ASIS and ASIO. 11 Alternatively, the content may be covered by a specific exemption. Specific exemption is normally provided for documents or parts of documents which concern the essential interests or functions of government including those concerning national security, relations between the Commonwealth and a State/Territory, cabinet documents, executive council documents, and documents involved in the deliberative process of government where disclosure would, on balance, be contrary to the public interest. Other common exemptions include documents that if disclosed would prejudice law enforcement or a fair trial, the financial or property interests of the Commonwealth or a State/Territory, the operations of an agency or the ability of the Commonwealth or 6

7

Cth: s 15(5) (30 days); ACT: s 18 (30 days); NT: s 32 (30 days); Qld: s 18(1) (25 business days); SA: s 19 (30 days); Tas: s 15 (20 days with a possible extension of 20 days in some cases); WA: s 13 (45 days unless otherwise agreed); Vic: s 21 (45 days). NSW: s 6.

8

NSW: s 7.

9

NSW: s 8.

10

NSW: s 9. An agency must decide an access application and give notice of the decision within 20 working days, with the possible extension of 10 working days in some cases: NSW s 57. Cth: s 7 and Sch 2, Pt I.

11

[7.40] 463

Australian Media Law

State/Territory to manage the economy, or would unreasonably disclose personal information, breach legal professional privilege, reveal trade secrets, give rise to an action for breach of confidence, or constitute a contempt of court. In addition, some States have enacted State-specific exemptions, such as Tasmania’s exemption for documents that if disclosed would be likely to threaten endangered species of flora or fauna, Western Australia’s exemption for documents concerning information concerning gold or other precious metal transactions and Queensland’s exemption for documents submitted for consideration by the Brisbane City Council, in recognition of its status as the country’s biggest local authority and the similarity between these documents and cabinet documents. FOI can be an important source of information for the media. However, even where they have stated their commitment to open and transparent processes, governments do not always welcome public scrutiny of their affairs. This has led to instances of governments using the exemptions in the FOI legislation in a manner which has avoided disclosure of documents containing information which may subject them to public criticism. An exemption commonly relied upon in this connection has been that for cabinet documents, 12 with a liberal interpretation applied to what constitutes such a document. For example, is it a document merely taken into the Cabinet room even if it is not essential to any deliberations undertaken there? Another source of controversy has been that of the mechanism of the “Minister’s certificate”. Under the FOI legislation in some jurisdictions a Minister may certify that it would be contrary to the public interest for a particular document to be disclosed. 13 Where such a certificate is issued, it can be reviewed but such a review is generally limited to determining whether reasonable grounds existed for the claim that disclosure would be contrary to the public interest. There is no provision for a full merits review of the Minister’s decision. 14 Criticism of minister’s certificates as being antithetical to the notion of a right to access has led to most jurisdictions removing the mechanism from their legislation.

Publication of information in breach of confidence Elements of an obligation of confidence [7.50] Generally, the three elements to be proved by someone seeking to restrain the publication of confidential information are: • that the information was of a confidential nature; • the information was communicated in circumstances importing an obligation of confidence; and 12 13 14

Cth: s 34; ACT: s 35; NSW: Sch 1; NT: s 45; Qld: Sch 3; SA: Sch 1 Pt 1; Tas: s 26; WA: Sch 1; Vic: s 28. NT: s 60; WA: ss 36 – 38. McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 (FOI application for information of “bracket creep” denied on the basis of them being the internal working documents involved in deliberative processes of government, the disclosure of which would be contrary to the public interest – on application for review by the AAT, the Federal Treasurer signed a Minister’s certificate in relation to the documents).

464 [7.50]

Chapter 7 – Confidentiality and Sources of Information

• an actual or threatened unauthorised use of the information to the detriment of the person who communicated the information. 15 In some cases before these elements can be applied it is first essential to identify the relevant information with sufficient specificity. 16 This may not always be an issue because often the information that is claimed to be subject to an obligation of confidence will be clear. In Australia, the equitable jurisdiction to grant relief against an actual or threatened abuse of confidential information lies in the notion of an obligation of conscience arising from the circumstances in or through which the information was communicated or obtained. 17 A media defendant may oppose any attempt to restrain disclosure at any one or all of the three levels, namely whether the action has been made out (in particular, whether the information has entered the public domain), whether disclosure was justified and in relation to the appropriate relief. 18

Necessary quality of confidence Relevant information [7.60] A quality of confidence is easily recognised in the case of business or trade secrets and other commercially valuable information 19 including, for example, a concept for a television program, 20 photographic images of the wedding of two famous actors 21 and valuations placed on insurance claims. 22 This has now been extended to protection for personal secrets, such as domestic confidences passing between a husband and wife during marriage, 23 and sexual affairs. 24 In an appropriate case it may cover a person’s identity, 25 or 15 16 17 18

19 20 21 22

Coco v A N Clark (Engineers) Ltd [1969] RPC 41 at 47; Attorney-General (UK) v Heinemann Publishers Aust Pty Ltd (1987) 10 NSWLR 86; Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39. See [7.300]. Moorgate Tobacco Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414 at 438; Johns v Australian Securities Commission (1993) 178 CLR 408. See Kirby P in Attorney-General (UK) v Heinemann Publishers Aust Pty Ltd (1987) 10 NSWLR 86 at 153. For a recent example of the media arguing on these three fronts, see Australian Football League v The Age Company Ltd (2006) 15 VR 419; [2006] VSC 308 (public domain and justified disclosure) and Australian Football League v The Age Company Ltd (No 2) [2006] VSC 326 (appropriate relief). See, for example, Coco v AN Clark (Engineers) Ltd [1969] RPC 41; Westpac Banking Corporation v John Fairfax Group Pty Ltd (1991) 19 IPR 513. See, for example, Talbot v General Television Corporation Pty Ltd [1980] VR 224. See, for example, Douglas v Hello! Ltd [2007] UKHL 21 at [124]. See, for example, Earthquake Commission v Krieger [2013] NZHC 3140.

23 24

Argyll v Argyll [1967] 1 Ch 302. Stephens v Avery [1988] 1 Ch 449; A v B plc [2003] QB 195; [2002] 2 All ER 545 (CA). However, there may be difficulty defining the precise relationships involved: see, for example, R Wacks, Personal Information: Privacy and the Law (1993), especially pp 100-134; W Wilson, “Privacy, confidence and press freedom: A study in judicial activism” (1990) 53 Mod LR 43 at 51-56.

25

See, for example, G v Day [1982] 1 NSWLR 24 (identity of a police informant); Australian Football League v The Age Company Ltd (2006) 15 VR 419; [2006] VSC 308 (identity of AFL players alleged to have failed drug tests).

[7.60] 465

Australian Media Law

new identity. 26 Advice provided by lawyers to their clients is confidential by nature. This includes any summary of relevant facts produced with the skill of a lawyer. 27 By contrast, it has been held that a person suspected of committing a crime cannot claim that either any information that might inculpate them in the commission of the offence or the fact that police suspect them of committing the crime has the necessary quality of confidence. 28 In England, since the Human Rights Act 1998 (UK), the action for breach of confidentiality has been used in lieu of express recognition of a right to privacy. In so doing, greater emphasis has been placed on the subject matter being private than it being subject to a duty of confidence. 29 In other words, greater emphasis is being placed on a variation of this first element at the expense of the second, resulting in a distortion of the cause of action and a shift away from its original theoretical basis. 30 Nevertheless this English approach attracted the support of Gleeson CJ in the High Court, 31 who in turn was followed in the Victorian County Court in cases involving disclosures in breach of privacy. 32 The Victorian Court of Appeal has also preferred to recognise a claim founded in breach of confidence rather than develop a tort of invasion of privacy in a case involving disclosure of personal secrets. 33 Government information may have the necessary quality of confidence. This may be a matter of degree. Some matters of national security may require indefinite protection, whereas other public secrets which may be confidential in the interests of good government, such as cabinet documents and deliberations, may have a confidential quality which lapses over time. 34 Example

Attorney-General v Jonathan Cape Ltd [7.70] Attorney-General v Jonathan Cape Ltd [1976] 1 QB 752 A Cabinet Minister kept detailed diaries recording Cabinet discussions and political events with a view to their publication as a book at a later date. Following his death, the first volume of the book was published, which disclosed details of Cabinet discussions, revealed differences between members of the Cabinet and disclosed advice given by civil servants. Extracts from the book appeared in a newspaper. The Attorney-General’s application for injunctions against the Cabinet Minister’s executors, the publishers of the book and the publishers of the newspaper was dismissed

26 27 28

Venables v News Group Newspapers [2001] 1 All ER 908. Cronulla-Sutherland District Rugby League Football Club Ltd v Nationwide News Pty Ltd [2013] NSWSC 494. Sands v South Australia [2013] SASR 44 at [615]-[616].

29 30

Campbell v Mirror Group Newspapers Ltd [2003] 1 All ER 224 (CA) at [70]. See [8.530].

31 32

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 224-226. Doe v Australian Broadcasting Corporation [2007] VCC 281.

33 34

Giller v Procopets (2008) 24 VR 1. See [8.930]-[8.960]. Attorney-General v Jonathan Cape Ltd [1976] 1 QB 752 at 768-770.

466 [7.70]

Chapter 7 – Confidentiality and Sources of Information Attorney-General v Jonathan Cape Ltd cont. on the basis that although the maintenance of the doctrine of joint responsibility within Cabinet was in the public interest, and that doctrine might be prejudiced by a premature disclosure of the views of individual Ministers and deliberations in Cabinet, those opinions and deliberations were only confidential until such time as their disclosure would not undermine the doctrine. Volume 1 of the diaries, in dealing with events 11 years earlier, disclosed no details of discussions that now remained confidential.

Public domain Generally [7.80] Where there has been disclosure of the information which has been so widespread that it has become common knowledge and therefore in the public domain, it will have lost its quality of confidence and a media defendant publishing the information will not be liable. 35 Example

Spycatcher [7.90] Spycatcher Wright was a former member of the British Secret Service (MI5) and had gone to live in retirement in Tasmania. There he wrote his memoirs Spycatcher which (inter alia) alleged irregularities in, and the carrying out of unlawful activities by, members of MI5. By reason of the British Official Secrets Act 1911 the book could not be published in the United Kingdom. Accordingly, Wright attempted to publish the book in Australia. The British Government sought to restrain such publication, these proceedings, including an outline of the allegations made by Wright, being reported by newspapers in the United Kingdom. Proceedings were then commenced in the United Kingdom to restrain further publications by these newspapers. This litigation served to boost the worldwide sales of Spycatcher, particularly in the United States. Illicit copies of the book started flooding into Britain. Further, The Sunday Times newspaper purchased the British serialisation rights to Spycatcher and published the first instalment of extracts from the book.

[7.100] In Australia, the High Court ultimately refused to restrain publication of the book, holding the British government’s claim was not maintainable on the ground that it sought to vindicate the governmental interests of a foreign State and that it was a rule of international 35

Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203 at 215; Attorney-General (UK) v Heinemann Publishers Aust Pty Ltd (1987) 10 NSWLR 86; Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 3 WLR 776 at 811; Attorney-General v Observer Ltd [1988] 3 WLR 776; British Broadcasting Corporation v Harpercollins Publishers Ltd [2010] EWHC 2424 cf Westpac Banking Corporation v John Fairfax Group Pty Ltd (1991) 19 IPR 513 at 525.

[7.100] 467

Australian Media Law

law that such a claim was not enforceable. 36 However, earlier in the New South Wales Court of Appeal, one ground relied upon by Kirby P for refusing to restrain the publication was that by the time Spycatcher had come upon the scene, a vast amount of material about MI5 was already in the public domain, in the form of a very large number of additional publications, broadcasts, newspaper and journal items, including material authorised by MI5 itself in order to generate favourable opinion. This material had already been in the public domain when the book was commissioned by the publishers and written by Wright. 37 In England, where the original newspaper articles had been restrained, the House of Lords eventually discharged the interlocutory injunctions on the grounds that so many copies of the book were in circulation by that time, including the illicit copies that had entered Britain, any secrecy as to its contents had been destroyed and any continuation of the injunctions was pointless. 38 Similarly, in an English case the singer John Lennon was unable to obtain an injunction to prevent publication of intimate details about his marriage to Cynthia on the grounds that their personal relationship had ceased to be their own private affair: they themselves had put it into the public domain by selling their stories to the media and using it to make accusations against one another. 39 In such a case if even intimate details have received such widespread publicity that they may be regarded as public knowledge, there may be no secrecy left for the courts to protect, wherever the court’s sympathies may have lay. Relative secrecy [7.110] Whether the quality of confidence has been lost or not may involve difficult questions of fact and degree, including the nature of the information and the extent of any prior disclosure. Information may be disclosed to a limited number of recipients without losing its quality of confidentiality, provided there is “relative secrecy”. 40 Example

G v Day [7.120] G v Day [1982] 1 NSWLR 24 While in America, the plaintiff believed that he saw Frank Nugan, a director of a bank accused of suspect dealings. Nugan had been believed to have committed suicide. On his return to Australia, the plaintiff, who as a result of the sighting now feared for his safety, reported the sighting to the Corporate Affairs Commission on condition of

36 37 38 39

Attorney-General (UK) v Heinemann Publishers Aust Pty Ltd (1988) 165 CLR 30 at 45-47. Attorney-General (UK) v Heinemann Publishers Aust Pty Ltd (1987) 10 NSWLR 86 at 164. Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 3 WLR 776. Lennon v Newsgroup Newspapers Ltd [1978] FSR 573 at 574-575.

40

Franchi v Franchi [1967] RPC 149 at 153; Talbot v General Television Corporation Pty Ltd [1980] VR 224; Australian Football League v The Age Company Ltd (2006) 15 VR 419; [2006] VSC 308 at [52] (the fact that names of AFL players alleged to have tested positive for illicit drugs were known by a number of people within the AFL community and at a newspaper but not disseminated to the public at large meant that the information was not in the public domain).

468 [7.110]

Chapter 7 – Confidentiality and Sources of Information G v Day cont. anonymity. The plaintiff was later given a similar undertaking by police officers who interviewed him. A second inquest was ordered, solely on the basis of the information obtained from the plaintiff. The body buried in Nugan’s grave was exhumed and confirmed to be that of Nugan. In covering the inquest and exhumation Sydney Channel Ten news broadcast two stories in which the plaintiff’s name was briefly mentioned. Subsequently, a newspaper journalist obtained the plaintiff’s identity from the Corporate Affairs Commission and intended to publish it in an article to appear in the Melbourne Truth. It was held that the newspaper should be restrained from publishing the plaintiff’s identity. The previous references to the plaintiff on the television news were only transitory and brief, his name being mentioned only once on each occasion and not recorded in any permanent form. There had been no suggestion that any reaction from any viewer had been conveyed to the plaintiff and it was probable that his name would not have been remembered by anyone who did not already know him. These disclosures were therefore of a limited and impermanent nature, unlike any publication in a newspaper which would have been in a permanent form for all its readers to note. 41

[7.130] Similarly, a transitory publication that may not be remembered or discovered by interested parties should not destroy the confidentiality of a permanent and more enduring form of the information. 42 Limited disclosure to an ever-widening audience [7.140] By contrast, there may be cases where at the time of the hearing there has only been a limited disclosure, but that will be sufficient to remove any secrecy because there is nothing to prevent an ever-widening audience. Example

Commonwealth v John Fairfax & Sons Ltd [7.150] Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 A book Documents on Australian Defence and Foreign Policy 1968–1975 purported to contain unpublished memoranda, assessments, briefings and cables relating to such sensitive matters as the crisis in East Timor, the re-negotiation of agreements covering 41

See also, Shelley Films Ltd v R Features Ltd [1994] EMLR 134 (injunction granted to restrain publication of photographs of Robert De Niro in costume for the film Mary Shelley’s Frankenstein even though one photograph had already been published and members of the public had visited the set and seen some filming).

42

Westpac Banking Corporation v John Fairfax Group Pty Ltd (1991) 19 IPR 513 (copies of letters containing confidential information had “only” been already quoted from in the South Australian Parliament and been reproduced in an Australian Capital Territory edition of the Canberra Times and in a left wing newspaper, Tribune); Kwok Fu Shing v Thang [1999] NSWSC 1034 (a Hong Kong newspaper’s account of contents of a videotape may not prevent an injunction restraining the public release of the videotape in Australia).

[7.150] 469

Australian Media Law Commonwealth v John Fairfax & Sons Ltd cont. United States military bases in Australia, the presence of the Soviet Navy in the Indian Ocean, Australia’s support for the Shah of Iran and the ANZUS Treaty. Excerpts from the book were to be published in serial form in Fairfax newspapers. The Commonwealth was granted ex parte injunctions restraining these publications, but were not in time to prevent publication of 60,000 copies of an early edition of The Age and a lesser number of an early edition of the Sydney Morning Herald. Also, a small but not insignificant number of copies of the book had already been sold, including copies purchased by the embassies of Indonesia and the United States. Sitting in the original jurisdiction of the High Court, Mason J took the view that the sales of the book, including those made to Indonesia and the United States (the countries most likely to be affected by its contents) and the publication of the first instalment in the two newspapers, indicated that the detriment which the Commonwealth apprehended (that is, a degree of embarrassment to Australia’s foreign relations) would not be avoided by the grant of an injunction for breach of confidentiality. While in other circumstances, the circulation of about 100 copies of the book might not be enough to disentitle the possessor of confidential information from protection by injunction, in this case it was likely that what was in the book would become known to an ever-widening group of people both in Australia and overseas, including foreign governments.

[7.160] In such cases, no amount of injunctive relief is able to put the genie back in the bottle. 43 Veracity of source [7.170] The expected authenticity or veracity of the source of information may be an important consideration. For example, speculative gossip, innuendo and assertions by unknown persons on the internet may not be sufficient to regard information as having moved into the public domain. 44 Example

Australian Football League v The Age Company Ltd [7.180] Australian Football League v The Age Company Ltd (2006) 15 VR 419; [2006] VSC 308 Three players were alleged to have breached the Australian Football League’s Illicit Drugs Policy. Under that policy the first two positive test results were to be kept confidential between the player and the relevant AFL officers. A third positive test 43

44

For this reason A Stewart and M Chesterman, “Confidential material: The position of the media” (1992) 14 Adel LR 1 at 5 criticised the decision in Westpac Banking Corporation v John Fairfax Group Pty Ltd (1991) 19 IPR 513: once the two papers had published the letters and copies started circulating within the jurisdiction, no amount of injunctive orders could prevent them from becoming known to a wider and wider audience. Australian Football League v The Age Company Ltd (2006) 15 VR 419; [2006] VSC 308 at [56].

470 [7.160]

Chapter 7 – Confidentiality and Sources of Information Australian Football League v The Age Company Ltd cont. resulted in the player being referred to the AFL Tribunal for sanction, and the matter becoming public. The AFL and Players Association sought permanent injunctions restraining two newspapers from disseminating any material that would identify any AFL player who tested positive under the policy and a declaration that the identity of such player was confidential. The newspapers claimed, inter alia, that the information had passed into the public domain because the identity of the players concerned had been published on a number of online discussion forums. Further, a viewer of the Foxtel pay television program Fox Footy had called the program hosts on air and named a player as being one of the players concerned, although the hosts of the program had entered into no discussion about the matter. It was held that the mention of the name on Fox Footy by the caller was momentary, speculative and heard by a limited audience. Further, speculative gossip, innuendo and assertion by unknown person on websites do not place the names in the public domain, despite the no doubt significant number of users of such sites who may have seen the names. The public, and particularly that part of the public who use internet chat rooms, have no expectation of authenticity or veracity of the information posted on such websites.

[7.190] By contrast, where information is placed on a website operated by a commercial entity, the viewer of such a website may be entitled to treat the appearance of such particulars as being information of at least some veracity and authority. In this sense it may be said that “everything which is accessible through resort to the internet [may be regarded] as being in the public domain”. 45 Likewise, the reader of a newspaper, or the viewer of a television station, is entitled to treat a news report appearing therein as having at least some veracity and accountability. This may vary according to the nature of the news media publishing the report. However, generally speaking a reader or viewer will know that some entity, whether a reporter, editor or publisher (in the case of print media) or the reporter, producer, broadcaster or corporate owner (in the case of electronic media) will be identifiable and accountable for the publication, for example by virtue of the laws of defamation if wrong information is published without good cause. This will mean that the public may regard information published by the print or electronic media as being generally credible. 46 Purpose of information [7.200] Another relevant question when deciding whether (taking into account the nature of the information) the information has entered the public domain may be whether, on the facts, there is still a point to enforcing the obligation of confidence. 47 45

EPP v National Buying Group Pty Ltd [2001] NSWSC 482 at [20] per Barrett J as explained by Kellam J in Australian Football League v The Age Company Ltd (2006) 15 VR 419; [2006] VSC 308 at [54].

46 47

Australian Football League v The Age Company Ltd (2006) 15 VR 419; [2006] VSC 308 at [54]. Douglas v Hello! Ltd (No 3) [2007] 2 WLR 920.

[7.200] 471

Australian Media Law

Example

Douglas v Hello! Ltd (No 3) [7.210] Douglas v Hello! Ltd (No 3) [2007] 2 WLR 920 Actors Michael Douglas and Catherine Zeta-Jones sold the exclusive right to photographs of their wedding to OK! magazine for £1 million. Despite tight security, a freelance photographer was able to surreptitiously take photographs, which he sold to Hello! magazine. OK! learnt of these photographs and obtained an ex parte injunction, but this was discharged on appeal to the Court of Appeal. The following day Hello! published the photographs. However, a few hours earlier OK! published its own “authorised” photographs, having rearranged its schedule in light of the imminent publication by Hello!. A 3-2 majority of the House of Lords held that the publication by OK! did not mean that the information had moved into the public domain and lost its confidential quality. Had the purpose of the publication simply been to convey the information such as that the Douglases had married, the bride wore a wedding dress and a description of the event, then the publication of any photographs would have put that information in the public domain. However, here the point of the transaction was that each photograph would be treated as a separate piece of information which OK! would have the exclusive right to publish. The photographs published by OK! had entered the public domain, but that did not mean that thereby all photographs were in the public domain merely because they resembled the OK! photographs. Despite the publication of its own photographs, OK! still was in a position in which it suffered substantial financial losses as a result of the publication in Hello!.

Information on the public record and well known facts [7.220] Once information has been disclosed in Parliament and recorded in Hansard, it has become a permanent record of the information which may be accessed by any member of the public, including the media. 48 This is not altered by the fact that the media does not, or does not immediately, access that record: by its open availability it is deemed widely published. It would seem, therefore, that the confidentiality of information may be destroyed by using Parliament to place the information in the public domain. 49 The only alternative, as pointed out by Stewart and Chesterman, is the unpalatable one of having an unelected judiciary placing restrictions on the reporting or the reproduction of parliamentary proceedings. Instead, faith must be placed in Parliament itself to ensure that confidentiality is not wantonly destroyed. 50 However, caution is indicated since unlike the law of defamation, the law of confidentiality does not provide for a defence of qualified privilege for fair and accurate reports of 48

Westpac Banking Corporation v John Fairfax Group Pty Ltd (1991) 19 IPR 513.

49 50

Stewart and Chesterman (1992) 14 Adel LR 1 at 6-7. Stewart and Chesterman (1992) 14 Adel LR 1 at 7.

472 [7.210]

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parliamentary proceedings. Thus, a politician disclosing confidential information in Parliament may be protected by parliamentary privilege, but any reports of that disclosure appearing in the media may be unprotected. 51 It has been held that something which has been constructed solely from materials in the public domain may possess the necessary quality of confidentiality. This is because something new and confidential may have been brought into being by the application of the skill and ingenuity of the human brain. Novelty depends on the thing itself, and not on the quality of its constituent parts. 52 Further, even where the facts are widely known, they may not be ever-present in the minds of the public. Any attempt to extend the knowledge or to revive the collection of matters, which may be detrimental or prejudicial to the interests of some person or organisation, may be restrained by injunction. 53 A decision to this effect has been criticised, 54 however, and it may be that it is restricted to circumstances in which the information is particularly sensitive, and where there is a special commitment of loyalty which can be inferred from the defendant being the sole major source of public information or comment on the subject. 55

Information received in circumstances giving rise to obligation of confidence Relationships creating the obligation [7.230] Information must be received, whether by the first, or a later, recipient in circumstances imposing upon the recipient an obligation of confidence. 56 If the circumstances are such that any reasonable person standing in the shoes of the recipient of the information could have realised on reasonable grounds that the information was given to him or her in confidence, that is sufficient to impose upon the recipient the equitable obligation of confidence. 57

51 52 53 54

55 56 57

Stewart and Chesterman (1992) 14 Adel LR 1 at 6. Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203 at 215; Coco v AN Clarke (Engineers) Ltd [1969] RPC 41 at 47. Schering Chemicals Ltd v Falkman Ltd [1981] 2 All ER 321 at 338. See, for example, Law Commission of England and Wales “Breach of confidence” (1981) Law Comm 110, pp 30-31; see also Professor G Jones, “The Law Commission’s report on breach of confidence” (1982) 41 Com LJ 40 at 44; A M Tettenborn, “Breach of confidence, publicity and the public interest” (1981) 98 LQR 5. See Stewart and Chesterman (1992) 14 Adel LR 1 at 13-14. Westpac Banking Corporation v John Fairfax Group Pty Ltd (1991) 19 IPR 513 at 524. Coco v AN Clark (Engineers) Ltd [1969] RPC 41 at 48; Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203 at 216.

[7.230] 473

Australian Media Law

An obligation of confidence may also arise as a result of a contract, 58 perhaps permitting limited disclosure of the information, or disclosure subject to particular terms. 59 An obligation of confidence may be an express or implied condition of employment, preventing the employee from disclosing his or her employer’s secrets which the employee has learnt during the course of the employment. 60 However, in the absence of an express condition of confidentiality the mere fact of employment may not be enough to imply such an obligation. While it may be accepted that there would be an implied contractual or equitable obligation to keep certain matters confidential – for instance it would be a breach of duty for any employer to rifle through an employer’s financial records in order to communicate the contents to an outsider – it is otherwise difficult to generalise. 61 Thus, for example, while an obligation of confidence may be readily implied in the case of a live-in butler whose job it is to assist the employer as a manager of personal affairs, it may be more difficult to contend that a gardener who works only outside the house has a similar obligation. 62 Much will depend on the individual circumstances of the employment. 63 By contrast, an obligation based on contract will be no plainer than in the case of an employer whose business is the keeping of secrets. 64 An obligation may also arise in a fiduciary relationship between the parties, such as communications to solicitors, doctors and spiritual advisers by virtue of the position of trust such persons occupy: any confidential information communicated to them will normally be subject to an obligation of confidence. There may be an obligation of confidence even where information is acquired in order for someone to be the exclusive source of publication. In other words, the mere fact that a newspaper or other media outlet acquired information, such as the photographs of the wedding of two famous actors or the memoirs of a public figure, with the intention of disclosing that information itself does not mean that there is no obligation of confidence preventing other media outlets from publishing the same information. 65 58

See, for example, British Broadcasting Corporation v Harpercollins Publishers Ltd [2010] EWHC 2424 (contractual promise to keep confidential the identity of “the Stig” stunt driver on the television program Top Gear).

59

Exchange Telegraph Company Ltd v Central News Ltd [1897] 2 Ch 48 at 53. Cf Bates & Partners Pty Ltd v Law Book Company Ltd (1994) 29 IPR 11 (list of winners of television awards distributed to media organisations in advance under “embargo”). In the application for interlocutory injunction in Nationwide News Pty Ltd v Australian Broadcasting Corporation [2005] NSWSC 945 it was argued that an obligation of confidence arose by virtue of a signed agreement between a former leader of the Federal Opposition and a newspaper publisher for the serialisation rights to his book.

60

See, for example, Initial Services Ltd v Putterill [1968] 1 QB 396; Woodward v Hutchins [1977] 1 WLR 760; AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395.

61 62 63

Hitchcock v TCN Channel Nine Pty Ltd (2000) Aust Torts Reports 81-550 at [65] per Austin J. Hitchcock v TCN Channel Nine Pty Ltd (2000) Aust Torts Reports 81-550 at [69] per Austin J. See, for example, Hitchcock v TCN Channel Nine Pty Ltd [2000] NSWCA 82 where the members of the New South Wales Court of Appeal suggested, without finally deciding, that the relationship in that case between the employer and her live-in nanny impliedly gave rise to an obligation of confidence.

64 65

See, for example, Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 3 WLR 776. Douglas v Hello! Ltd (No 3) [2007] 2 WLR 920 at [120] (exclusive rights to photographs). See also Nationwide News Pty Ltd v Australian Broadcasting Corporation [2005] NSWSC 945 (exclusive rights to ex-politician’s memoirs).

474 [7.230]

Chapter 7 – Confidentiality and Sources of Information

Third parties [7.240] In many cases, the media will be a third party to the confidential relationship and the question will be to what extent any obligation of confidence may extend to protect information that has come to be in its hands. As Stewart and Chesterman pointed out, in light of the enormous capacity that most print and broadcasting organisations have to damage a plaintiff’s economic, personal or political interests through the release of sensitive information, most litigation of this kind is directed primarily at the messenger, not the original source of the leak. Indeed, in many cases that source may as yet be unknown. 66 However secret and confidential the information may be, there will be no binding obligation of confidence if that information is blurted out in public or communicated in other circumstances which may negate any duty to hold that information confidential. 67 A person who openly utters confidential information must accept the risk of any unknown overhearing that is inherent in the circumstances of the communication. 68 Accordingly, it has been suggested that those who exchange confidences on a bus or train run the risk of a nearby passenger with acute hearing or a more distant passenger who is adept at lip-reading learning the information; those who speak over garden walls run the risk of being heard by an unseen neighbour in a toolshed that is nearby; office cleaners who discuss secrets in an office when they think everyone else has gone run the risk of speaking within earshot of an unseen member of staff who is working late; and those who give confidential information over an office intercom system run the risk of some third party being connected to the conversation. 69 Users of the telecommunications system therefore take such risks of being overheard as are inherent in the system. 70 This will particularly be the case in relation to communication by systems which are renowned to be insecure, such as mobile phones and email. It may also extend to confidences heard incidental to the legal tapping of a landline telephone. 71 Where, on the other hand, there has been no such sense of fortuity in the obtaining of the information, a third party in the position of the media may be prevented from the unauthorised use of confidential information even though it was not the person to whom the information was initially communicated and was therefore innocent of the original breach of confidence. 72 This will be the case where the third party knows or ought to know that the information is subject to an obligation of confidence, on the basis that it would be “unconscionable” to allow the third party to make use of it. 73 Whether the third party knows or ought to know that the information 66 67 68

Stewart and Chesterman (1992) 14 Adel LR 1 at 2. Coco v AN Clark (Engineers) Ltd [1969] RPC 41 at 47-48. Malone v Commissioner of Police of the Metropolis (No 2) [1979] 2 All ER 620 at 645.

69 70 71

Malone v Commissioner of Police of the Metropolis (No 2) [1979] 2 All ER 620 at 645. Malone v Commissioner of Police of the Metropolis (No 2) [1979] 2 All ER 620 at 646. Malone v Commissioner of Police of the Metropolis (No 2) [1979] 2 All ER 620, although this postulates a society in which users of the landline telephone system should expect that any and every conversation they have could potentially be the subject of a legal wire tap.

72

See M Richardson, “Breach of confidence, surreptitiously or accidentally obtained information and privacy: Theory versus law” (1994) 19 MULR 673 at 694-698.

73

Talbot v General Television Corporation Pty Ltd [1980] VR 224 at 239-240; Schering Chemicals Ltd v Falkman Ltd [1981] 1 QB 1.

[7.240] 475

Australian Media Law

is subject to an obligation of confidence will largely depend upon the facts, the court taking into account all the relevant circumstances, especially the kind of confidential information involved (some information being by its very nature and subject matter more obviously secret 74) and the manner and form in which the third party acquired it from the delinquent confidant. 75 For example, if the media were to obtain documents headed Absolutely Private and Confidential, which contained legal advice and which were therefore subject to legal professional privilege, this could only indicate that it had no right to receive or to retain them, still less the right to publish them. 76 In other cases the means of acquiring the information required in the circumstances, including the need to use an illegal telephone tap, 77 eavesdrop, 78 steal documents, 79 make copies surreptitiously, 80 or take photographs or film surreptitiously 81 or by way of long range telephoto lens, 82 may suggest to the third party that the information is subject to a pre-existing obligation of confidence. 83 Where the information has been disclosed to the third party by the confidant by mistake or through inadvertence, the question will depend upon whether, in the circumstances, a reasonable person in the position of the third party would have realised that the information was confidential. 84 A third party may be restrained from using information once he or she becomes aware, or ought to be aware, that the information is confidential. 85 If the third party journalist neither knew nor ought to have known of the breach of confidence, equity cannot bind the journalist’s conscience and he or she will be free to use the information. 86 This might occur where, for example, a journalist is actively misled by a delinquent confidant in relation to the means by which the information has been acquired, such as where the confidant insists that a diary has been abandoned by its owner when in fact it was stolen by the confidant, or that copies were obtained with permission rather than surreptitiously made. 87 In such a case, while the information may have the necessary quality of confidentiality, the circumstances in which it 74 75

See, for example, AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 (by their nature, patients’ medical records are inherently and notoriously confidential). J Stuckey, “The liability of innocent third parties implicated in another’s breach of confidence” (1981) 4 UNSWLJ 73 at 83.

76 77

Westpac Banking Corporation v John Fairfax Group Pty Ltd (1991) 19 IPR 513 at 524. See, for example, Francome v Mirror Group Newspapers Ltd [1984] 2 All ER 408 at 411, 415.

78

82

Abernethy v Hutchinson (1824) 3 LJ Ch 209; Smith Kline & French Laboratories Australia Ltd v Secretary, Department of Community Services and Health (1990) 95 ALR 87 at 111. Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39; British Steel Corporation v Granada Television Ltd [1981] AC 1096. Prince Albert v Strange (1849) 1 Mac & G 25; 41 ER 1171. Shelley Films v R Features Ltd [1994] EMLR 134; Creation Records v News Group Newspapers Ltd (1997) 39 IPR 1; Douglas v Hello! Magazine Ltd [2002] 2 All ER 289 at 329-330 per Keene LJ. Hellewell v Chief Constable of Derbyshire [1985] 1 WLR 804 at 807.

83 84 85

Stuckey (1981) 4 UNSWLJ 73 at 83-84. Trevorrow v South Australia (2006) 94 SASR 64. Fraser v Evans [1969] 1 QB 349 at 361.

86

Interfirm Comparison (Australia) Pty Ltd v Law Society of New South Wales [1975] 2 NSWLR 104; Smith Kline & French Laboratories (Australia) Ltd v Secretary, Department of Community Services and Health (1990) 95 ALR 87. See Stuckey (1981) 4 UNSWLJ 73 at 84.

79 80 81

87

476 [7.240]

Chapter 7 – Confidentiality and Sources of Information

was received will not import an obligation of confidentiality. Constructive knowledge, and an obligation of confidence, should arise as soon as the journalist becomes aware or should become aware that he or she has been misled by the delinquent confidant. 88

Threatened or actual unauthorised use of the information Misuse of information [7.250] There must be an actual or threatened misuse of the information without the consent of the person communicating it in confidence. 89 The risk must be a real one and not merely fanciful or theoretical. 90 Where a publication is derived from information obtained in confidence it will be regarded as a “use” of that information, even if such use involves misinterpretation or misrepresentation of the information. Merely publishing falsehoods on a subject matter that, if true, would be protected by confidentiality does not of itself constitute a breach of confidence (although it may give rise to another cause of action such as defamation or injurious falsehood). By contrast, a publication that, while containing inaccuracies, makes use of information obtained in confidence will be regarded as a use of confidential information, and will not be deprived of that character by those inaccuracies. 91

Need for detriment [7.260] Differing opinions have been expressed regarding whether the unauthorised use of information must be to the detriment of the person communicating it in confidence. 92 It has been argued that detriment is not a necessary element, but will be relevant in determining whether or not any remedy should be granted. 93 Often the issue has been avoided by the courts finding sufficient detriment in the circumstances. For example, it has been held that

88

See Stuckey (1981) 4 UNSWLJ 73.

89

Smith Kline & French Laboratories (Australia) Ltd v Secretary, Department of Community Services and Health (1990) 95 ALR 87 at 102; Coulthard v South Australia (1995) 63 SASR 531 at 547. Prince Jefri Bokiah KPMG (a firm) [1999] 2 AC 222 at 236 per Lord Millett; Newman v Phillips Fox (a firm) (1999) 21 WAR 309; Wagdy Hanna and Associates Pty Ltd v National Library of Australia (2004) 155 ACTR 39. AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 at [24]. Coco v AN Clark (Engineers) Ltd [1969] RPC 41 at 48. Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 74 ALR 428 at 437. The issue was left unresolved by Megarry J in Coco v AN Clark (Engineers) Ltd [1969] RPC 41 at 48.

90

91 92 93

[7.260] 477

Australian Media Law

sufficient detriment may be demonstrated by the mere fact of unwanted disclosure, 94 the confider’s private concern or embarrassment, 95 or the confider being exposed to public discussion and criticism. 96 Example

Coulthard v South Australia [7.270] Coulthard v South Australia (1995) 63 SASR 531 A meeting took place between Commonwealth and State government representatives and a group of Aborigines from the Kuyani people. The meeting related to a dispute between Kuyani people and Kokotha people about the traditional ownership of a certain area. At the meeting certain statements were made about the Kokotha people. Notes of the meeting were openly taken by the State government representatives for the purpose of compiling a report to the government and not for public distribution. At some stage a copy of the report was taken from the department and distributed without authority. Some of the comments made by some of the Kuyani people attracted adverse reaction in the Aboriginal community in Port Augusta. It was held by the Full Court of the South Australian Supreme Court that the opinions expressed at the meeting were confidential. In this connection, it was immaterial that the information had been disclosed by private citizens to the government. Further, (per Debelle J) it was not necessary to resolve whether the unauthorised use was to the detriment of the Kuyani people who had expressed the opinions since the public dissemination of the report in Port Augusta had led to those who had expressed the opinions suffering public criticism and rebuke.

Government information [7.280] Different considerations apply in the case of unauthorised use of government information. The relationship between the state and its citizens is different from that which may exist between private citizens. Private citizens are entitled to protect or further their own interests no matter how selfish they may be in doing so. As a consequence, the publication of confidential information which is detrimental to the private interest of a citizen is a legitimate concern of equity. By contrast, governments act, or at all events are constitutionally required to act, in the public interest. Information is held, received and imparted by governments, their departments and agencies to further the public interest. Therefore, public and not private interest must be the criterion by which equity determines whether it will protect information 94

Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 3 WLR 776 at 256, 281-282. In support of this view it has been pointed out that the basis of the equitable jurisdiction to protect obligations of confidence lies in an obligation of conscience, not the recovery of loss or prevention of infliction of apprehended loss: Smith Kline & French Laboratories (Australia) Ltd v Secretary, Department of Community Services and Health (1990) 95 ALR 87.

95 96

Attorney-General (UK) v Heinemann Publishers Aust Pty Ltd (1987) 10 NSWLR 86 at 190 per McHugh JA. Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 52.

478 [7.270]

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which a government claims is confidential. 97 Mere exposure to public discussion and criticism is not a relevant detriment in such a case. It would be unacceptable in a democratic society if there were a restraint on the publication of information relating to government when the only vice of that information was that it enabled the public to discuss, review and criticise government action. 98 Disclosure will be restrained only where it is inimical to the public interest because national security, relations with foreign countries or the ordinary business of government will be prejudiced. 99 The general underlying public interest in the free publication of information bearing on governmental action requires that the onus is upon the government plaintiff to satisfy the court that the public interest demands non-disclosure (ie it is an additional element of the cause of action) rather than it being for a defendant who is using or threatening to use the information to show that its disclosure would not be inimical to the public interest as a defence. 100 The balancing of the public interest involves questions of fact and degree. It is possible for a plaintiff to discharge the onus with respect to some but not all of a collection of documents, or part only of a particular document. Example

Victoria v Nine Network [7.290] Victoria v Nine Network (2007) 19 VR 476 Confidential documents belonging to Corrections Victoria were mislaid during a relocation of several administrative offices. The mislaid files came into the possession of a television network. The documents concerned (1) a psychiatric hospital patient profile of a prisoner who claimed to have been the subject of sexual misconduct by a prison officer while in custody; (2) the investigation of complaints of prison staff misconduct; (3) a record of interview of a prison officer; (4) a printout of the contents of a floppy disk reporting an investigation into staff misconduct at a prison; (5) and internal management review report prepared for the coroner with respect to the suicide of the prisoner while in custody; and (6) a report prepared for the Western Australian Department of Justice by officers of Victorian Department of Justice reviewing security at a correctional facility in Western Australia. The network notified Corrections Victoria and sought a response to publication of the documents. The government sought permanent injunctions restraining dissemination of publication of the documents and declarations that the information it contained was confidential. It was held that there was a general underlying interest in the free publication of information bearing on governmental action and a special public interest arising with

97

98

Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 52; Attorney-General (UK) v Heinemann Publishers Aust Pty Ltd (1987) 10 NSWLR 86 at 152-153 per Kirby P, 191 per McHugh JA; Smith Kline & French Laboratories (Australia) Ltd v Secretary, Department of Community Services and Health (1990) 95 ALR 87 at 112; Coulthard v South Australia (1995) 63 SASR 531 at 549-550; Attorney-General v Jonathan Cape Ltd [1976] 1 QB 752 at 770-771. Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 52.

99 100

Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 52. Victoria v Nine Network (2007) 19 VR 476 at [25].

[7.290] 479

Australian Media Law Victoria v Nine Network cont. respect to information concerning activities of government which bear directly on the liberty of the subject. Allegations of misconduct or in action in the administration of justice raise questions of particular sensitivity. In this case: (1) publication of the profile was not permitted because the person’s medical history was not in the public domain and there was an overwhelmingly precautionary public interest in maintaining its confidentiality arising mainly from the relevant provisions of the Mental Health Act 1986 (Vic) and Corrections Act 1986 (Vic); (2) publication of certain parts of the investigation documents was not permitted so as not to inhibit future co-operation by prison officers in confidential departmental inquiries and not to disclose personal or sensitive information. However, the balance of the documents could be published since there was no public interest in concealment of administrative incompetence; (3) the record of interview could be published subject to redaction; (4) the printout of the contents of the floppy disk could be published subject to redaction; (5) publication of the internal management review report was to be restricted until completion of the inquest, except in accordance with leave granted by the coroner; and (6) publication of the report reviewing security was not permitted because it was in the public interest that the Australian public receive the benefit of the opportunity for independent and confidential advice between the States on matters of difficulty and sensitivity relating to prison operations.

Identification of the information [7.300] Gummow J has suggested that a fourth element should be recognised in the form of a basic requirement that the plaintiff identify that which is said to be confidential with specificity, and not merely in global terms. 101 This requirement has its foundation in the need for the court to be able to frame a clear injunction so relief against misuse of confidential information can be granted. 102 It is also the case that the more general the description of information which a plaintiff seeks to protect the more difficult it is for a court to satisfy itself that information so described was imparted or received by a defendant in circumstances which gave rise to an obligation of confidence. 103 The precise identification of the relevant information which is claimed to be confidential may also have a bearing on whether the information had passed into the public domain and/or whether there is an actual or threatened unauthorised use.

101

See Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 74 ALR 428 and Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1990) 95 ALR 87 at 102.

102 103

Carindale Country Estate Pty Ltd v Astill (1993) 42 FCR 307 at 314-315. Independent Management Resources Pty Ltd v Brown [1987] VR 605 at 609.

480 [7.300]

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Example

Douglas v Hello! Ltd [7.310] Douglas v Hello! Ltd [2007] 2 WLR 920 Actors Michael Douglas and Catherine Zeta-Jones sold the exclusive right to photographs of their wedding to OK! magazine for £1 million. Despite tight security, a freelance photographer was able to surreptitiously take photographs, which were subsequently published in Hello! magazine. In the House of Lords a 3-2 majority agreed with the trial judge that there had been a breach of confidence by Hello!. The majority held that the correct interpretation was that OK! had paid the money for the benefit of the obligation of confidence imposed upon all those present at the wedding in respect of any photographs of the wedding. This contrasted with the view of the Court of Appeal which saw the obligation of confidence as having been imposed in favour of OK! only in respect of the photographs with which it was supplied by the Douglases. There had therefore been an actual interference with the relevant obligation of confidence by the publication of the photographs taken by the freelance photographer.

[7.320] The degree of specificity required may depend on the circumstances. It may be that a less precise description will be sufficient where to do otherwise would tend to disclose the information which it is sought to keep confidential. 104

Justified disclosure as a defence The iniquity rule [7.330] There is a defence to an action for breach of confidentiality where there is “just cause or excuse” for breaking the confidence. 105

104 105

Sent v John Fairfax Publication Pty Ltd [2002] VSC 429 at [79]-[70]; cf Carindale Country Estate Pty Ltd v Astill (1993) 42 FCR 307. Fraser v Evans [1969] 1 QB 349 at 362. The other recognised defence to an action for breach of confidence, viz disclosure under compulsion of law, is not relevant to the case of the media disclosing the confidences of others but may be of great relevance in the case of disclosure of media sources, discussed in [7.510]. Some have suggested an additional defence of bona fide purchaser for value without notice in the case of innocent third parties who acquire confidential information from others: see Stuckey (1981) 4 UNSWLJ 73 at 74-77. While this defence has been accepted in the United States (see, for example, Stewart v Cook 45 SE 369 at 370 (1903)), it has never been unequivocally accepted in Australia or England where there has been at most dicta in a number of cases indicating support. Even if the defence were available, it is likely that a media third party will have imputed to it constructive notice of the confidentiality by virtue of the type of information with which the media is commonly concerned and accordingly will not be regarded as being an “innocent” third party: cf Prince Albert v Strange (1849) 1 Mac & G 25; 41 ER 1171.

[7.330] 481

Australian Media Law

“Just cause or excuse” will exist where the disclosure is of iniquity, 106 since the public interest in the disclosure of iniquity will always outweigh the public interest in the preservation of private and confidential information. 107 While “iniquity” was originally conceived as denoting a crime, Gummow J later expressed the defence in the sense of a “crime, civil wrong or serious misdeed of public importance”. 108 Subsequently Kellam J in Australian Football League v The Age Company Ltd 109 held that to rely on the so-called “iniquity rule” the defendant would need to establish that: (a)

the proposed disclosure will in fact disclose the existence of or the real likelihood of the existence of an iniquity that is a crime, civil wrong or serious misdeed of public importance;

(b)

the iniquity to be disclosed is of a character of public importance, in the sense that what is to be disclosed affects the community as a whole, or affects the public welfare; and

(c)

the person who is seeking to protect the confidence is so doing in order to prevent disclosure to a third party with a real and direct interest in redressing the alleged crime, wrong or misdeed.

In that case it was held that the disclosure of names of football players who had tested positive to illicit drugs would not disclose any iniquity of serious criminal nature. At most the disclosure may have shown that players at some stage had traces of illicit drugs in their system, which may be relevant to the possibility of a crime having been committed. However, that information alone could not prove a crime, whether it be possession of or use of an illicit substance. Further, there was no intention on the part of the media defendants in that case to disclose the information to a third party with a real interest in redressing any such possible crime. It was not enough to disclose the information as an “interesting story” for football fans and for other readers, and for no other purpose. 110 There have been differing views regarding the type of behaviour that amounts to “iniquity”. In relation to personal and commercial secrets, it is clear that Australian courts are prepared to regard “just cause and excuse” as covering at least disclosures of serious crime or fraud. 111 It has been argued, however, that the “iniquity rule” is merely an instance of a wider class of “any misconduct [which is] of such a nature that it ought in the public interest to be disclosed” with impunity. 112 This would seem to be reflected in the above formulation by Gummow J as restated by Kellam J, which does not limit the subject matter to crime or fraud but includes 106 107 108 109

Gartside v Outram (1856) 26 LJ Ch 113 at 114. Allied Mills Industries Pty Ltd v Trade Practices Commission (1981) 34 ALR 105 at 141. Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 74 ALR 428. Australian Football League v The Age Company Ltd (2006) 15 VR 419; [2006] VSC 308 at [69].

110 111

Australian Football League v The Age Company Ltd (2006) 15 VR 419; [2006] VSC 308 at [70]-[71]. A v Hayden (No 2) (1984) 156 CLR 532; Grofam Pty Ltd v KPMG Peat Marwick (1993) 27 IPR 215; Deputy Commissioner of Taxation v Rettke (1995) 31 IPR 457. A v Hayden (No 2) (1984) 156 CLR 532 at 545; see also Initial Services Ltd v Putterill [1968] 1 QB 396; Fraser v Evans [1969] 1 QB 349 at 362; British Steel Corporation v Granada Television Ltd [1981] AC 1096 at 1169.

112

482 [7.330]

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“civil wrong or serious misdeed of public importance”, provided it is “of a character of public importance, in the sense that what is to be disclosed affects the community as a whole, or affects the public welfare.” This widening of the notion of iniquity has been alternatively expressed in terms of permitting disclosure so as to “protect the community from destruction, damage or harm” 113 or of “matters, carried out or contemplated, in breach of the country’s security or in breach of law (including statutory duty), fraud or otherwise destructive of the country or its people, including matters posing a medical danger to the public and misdeeds of similar gravity”. 114 The third element of the Kellam J formulation focuses on the reason why the person with the secret wants to preserve it. That person must be deliberately keeping the “crime, wrong or misdeed” secret from those with a “real and direct interest in redressing” it, such as the police or other responsible body. 115 This suggests that there can be no such thing as unintentional or accidental iniquity for the purposes of the iniquity rule. In some cases the third party with a real or direct interest in redressing the “crime, wrong or misdeed” may be the public at large. 116 Example

Lion Laboratories Ltd v Evans [7.340] Lion Laboratories Ltd v Evans [1984] 2 All ER 417 Two ex-employees of a company which manufactured an electronic breath test instrument passed to a newspaper copies of confidential internal company correspondence which showed that there were doubts as to the reliability and accuracy of the instruments. The newspaper published an article stating that the plaintiff company’s instruments were prone to serious error. It was held that in view of the public stance of the Home Office that there was no risk of a false conviction as a result of the use of the machine, it was clear that the Home Office was an interested and committed party. In the circumstances, therefore, the newspaper was not to be criticised for thinking that the impact of the revelations in their

113 114

Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 57. Beloff v Pressdram Ltd [1973] 1 All ER 241 at 260 approved in Castrol Australia Pty Ltd v Emtech Associates Pty Ltd (1980) 33 ALR 31 and Bacich v Australian Broadcasting Corporation (1992) 29 NSWLR 1; see, for example, Church of Scientology of California v Kaufman [1973] RPC 635 at 653 (disclosure of confidential teachings and practice of Scientology justified on the grounds that they were shown to be medically dangerous).

115

Initial Services Ltd v Putterill [1968] 1 QB 396 at 405-406; Francome v Mirror Group Newspapers Ltd [1984] 2 All ER 408 at 413; Lion Laboratories Ltd v Evans [1984] 2 All ER 417 at 423; Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 74 ALR 428 at 445-450. Initial Services Ltd v Putterill [1968] 1 QB 396 at 406.

116

[7.340] 483

Australian Media Law Lion Laboratories Ltd v Evans cont. newspaper would be more likely to galvanise the authorities into action than a discreet behind-doors approach.

[7.350] This case involved the broader “public interest” interpretation of “just cause or excuse” applied by English courts. 117 In Australia it would be necessary to show in similar circumstances that, absent fraud, the conduct of the company amounted to a “serious misdeed of public importance … of a character of public importance, in the sense that what is to be disclosed affects the community as a whole, or affects the public welfare.” The case is also an illustration of the essential role a free media plays in a democracy. It performs an invaluable function in exposing crime, anti-social behaviour and hypocrisy, and in campaigning for reform and propagating the views of minorities. 118 There may be cases where the media rightly discloses to the public information that even the government would prefer were kept secret. This is well illustrated by two well-known cases of investigative journalism which had serious ramifications for the governments of the day. The first example is that of the articles published by the Washington Post newspaper following the break-in at the Watergate Hotel assisted by a secret informant known as “Deep Throat”, which ultimately led to the downfall of the Nixon administration. The second example is the investigative reports by the ABC’s Four Corners television program and Courier Mail newspaper, acting on information provided by a former Queensland police officer, which resulted in the establishment of the Fitzgerald Inquiry, the outcome of which played a large role in the change in government at the following election. 119 Where the relevant information in such a case is government information, the government may be unable to discharge its onus of showing that disclosure would be contrary to the public interest. 120 Where, on the other hand, that information is the personal or commercial secret of a private person or organisation, but which the government or its authorities would also prefer to be kept secret, it may be argued that the media has the requisite “real and direct interest” in redressing the alleged iniquity.

Disclosure in the public interest [7.360] English courts have ventured further and recognised justified disclosure in the absence of behaviour that may be classified as an “iniquity”. These courts have given greater recognition to the fact that the duty of confidence, and the public interest in maintaining it, are restrictions on the freedom of the press and that there is a countervailing interest in the form of the public being kept informed of matters which are of real public concern. It has been said that there is some information which the public has a right to receive and which the media have a right (or even duty) to publish, even where that information has been unlawfully

117 118

See [7.360]. Francome v Mirror Group Newspapers Ltd [1984] 2 All ER 408 at 413.

119 120

See also Stewart and Chesterman (1992) 14 Adel LR 1 at 19-20. See [7.280].

484 [7.350]

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obtained in flagrant breach of confidence and irrespective of the motive of the informer. 121 As one English judge remarked, the information may relate to “some apprehension of an impending chemical or other disaster, arising without misconduct, of which the authorities are not aware, but which ought in the public interest to be disclosed to them”. 122 Accordingly, it is suggested that there will be “just cause or excuse” where the public interest in publication outweighs the public interest in maintaining the confidence. 123 Such a balancing exercise requires the fair consideration of the strength and value of the interest in preserving confidentiality and the damage which may be caused by breaking it. 124 In some cases disclosure of confidential information of less significance than “an impending chemical or other disaster” has been permitted. For example, in one case a former employee of a group of singers which included Tom Jones began to publish a series of compromising articles about their public affairs. 125 It was held that an injunction to prevent publication of further articles would be an unreasonable fetter on freedom of speech. As Lord Denning MR stated, in such cases of alleged confidential information it was a question of balancing the public interest in maintaining the confidence against the public interest in knowing the truth, and in the present case the balance came down in favour of the truth being told. As there was “truth in advertising” so should there also be “truth in publicity”. 126 Similarly, in another case, Mrs Khashoggi was unable to prevent publication of a report that revealed intimate details on the grounds that she had allowed herself to get into the public eye and had therefore run the risk of the “whole story … and the whole truth … being made public”. 127 An Australian judge has criticised this extended approach as not so much a rule of law but “an invitation to judicial idiosyncrasy by deciding each case on an ad hoc basis as to whether, on the facts overall, it is better to respect or to override the obligation of confidence” by

121

Lion Laboratories Ltd v Evans [1985] 1 QB 526 at 536 (publication of internal report showing that a breathalyser machine being used by the British Police was returning faulty readings held to be just cause or excuse for breaking confidence).

122 123 124

Malone v Commissioner of Police of the Metropolis (No 2) [1979] 2 All ER 620 at 635 per Megarry V-C. See also Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 3 WLR 776 at 794, 807. Science Research Council v Nasse [1980] AC 1028 at 1067 per Lord Wilberforce; X v Y [1988] 2 All ER 648 (public interest in preserving confidentiality of hospital records outweighed public interest in freedom of the press to publish the identity of two doctors who were carrying on general practice despite having contracted AIDS); cf W v Edgell [1990] 2 WLR 471 (public interest allowed a psychiatrist to disclose to the Home Office, in breach of doctor-patient confidentiality, the psychopathic personality of one of his patients due to be released from detention). Woodward v Hutchins [1977] 1 WLR 760.

125 126 127

Woodward v Hutchins [1977] 1 WLR 760 at 763. Khashoggi v Smith (1980) 124 Sol J 149 at 168.

[7.360] 485

Australian Media Law

reference to matters of social or political opinion. 128 The preponderance of authority in Australia is currently against an approach involving the balancing public interests. 129 Even if Australia were to adopt the public interest approach to “just cause or excuse”, it must be noted that, as in defamation, there is a wide difference between what is in the public interest to make known (which may justify disclosure) and what is interesting to the public (which would not justify disclosure). 130 The public may be interested in many private matters, such as the private affairs of a public figure, which are of no real concern of theirs and which they have no pressing need to know. 131 Further, the media have a private interest of their own in publishing what appeals to the public and that which may increase circulation or ratings. 132 In this respect, therefore, they are “peculiarly vulnerable to the error of confusing the public interest with their own interest”. 133 In relation to personal secrets, the balancing approach in England continues in the guise of a weighing up of any reasonable expectation of privacy on the one hand and freedom of expression on the other. 134

Remedies and sanctions [7.370] The appropriate relief will depend on the circumstances, not least of which will be whether there has already been an unauthorised disclosure of confidential information, or whether such disclosure or some additional disclosure is merely threatened. In the latter cases an injunction restraining disclosure or further disclosure is normally sought, while in the former case an order for an account of profits or for damages may be more suitable. Further, a

128 129

130

131

Smith Kline & French Laboratories (Australia) Ltd v Secretary, Department of Community Services and Health (1990) 95 ALR 87 at 125 per Gummow J. Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 74 ALR 428; Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1990) 95 ALR 87; Sullivan v Sclanders (2000) 77 SASR 419 at [45]; Australian Football League v The Age Company Ltd (2006) 15 VR 419; [2006] VSC 308 at [83]; cf Attorney-General (UK) v Heinemann Publishers Aust Pty Ltd [1987] 10 NSWLR 86 at 169 (per Kirby P). British Steel Corporation v Granada Television Ltd [1981] AC 1096 at 1168 per Lord Wilberforce; Lion Laboratories Ltd v Evans [1984] 2 All ER 417 at 423 per Stephenson LJ, 553 per Griffiths LJ; Shelley Films Ltd v R Features Ltd [1994] EMLR 134; Sullivan v Sclanders (2000) 77 SASR 419 at 426. For example, in Australian Football League v The Age Company Ltd (2006) 15 VR 419; [2006] VSC 308 the names of three AFL players alleged to have failed drug tests were regarded as nothing more than a matter of public curiosity.

132

Lion Laboratories Ltd v Evans [1984] 2 All ER 417 at 423. In Australian Football League v The Age Company Ltd (2006) 15 VR 419; [2006] VSC 308 at [94] Kellam J remarked that disclosing the names of AFL players alleged to have failed drug tests “might well be a worthwhile front-page story for the newspapers and a scoop for other sections of the media. No doubt photographs of any players concerned will be published and the issue will be productive of many words of journalistic endeavour”. However, there was nothing that was in the public welfare or in the interests of the community at large served by the identification.

133 134

Francome v Mirror Group Newspapers Ltd [1984] 2 All ER 408 at 413. See [8.530]-[8.570].

486 [7.370]

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relatively recent development of significance for the media has been the possibility of contempt proceedings for disclosure contrary to an injunction against a third party. 135

The proper plaintiff [7.380] While persons other than the original confidant may be subject to the obligation of confidence, it is important to note that a remedy may be obtained only by the original confider. It will not be sufficient for information to merely relate to the plaintiff or for the plaintiff to have some desire to prevent information from being disclosed, if the plaintiff was not the confider. 136 Example

Fraser v Evans [7.390] Fraser v Evans [1969] 1 QB 349 The plaintiff, a public relations consultant, prepared a written report for the Greek Government pursuant to a contract which expressly imposed upon him a duty to never reveal any information about his work. A copy of the report came into the hands of a newspaper which proposed to publish an article based on it. The plaintiff sought an injunction to restrain publication on the grounds that it would be a breach of confidence. It was held that while a court will grant an injunction to restrain publication of information that is confidential, it will only do so at the instance of the party to whom that duty is owed. A duty was owed by the plaintiff to the Greek Government. However, on the evidence, the Greek Government owed no such duty, express or implied, to the plaintiff and did not itself complain to the court. Accordingly, the plaintiff had no standing to obtain relief.

[7.400] Similarly, where a large company has many directors and thousands of shareholders, any confidence owed to the company cannot be enforced by a director or a shareholder. 137 By contrast, where the company has only one or two directors who are its sole shareholders, the business affairs of the company are also the business affairs of the

135

Additionally, a system of media self-censorship known as the “D notice” was developed during the Cold War. Under that system the proprietors of newspapers undertook not to publish any material that dealt with highly sensitive national security and defence subjects made subject to specific D [for Defence] notices, such as UK atomic tests in Australia and troop movements in Korea. The D notice system itself was secret until 1968. However, the usefulness of the system was brought under scrutiny following the reporting of ASIS electronic surveillance of the Chinese Embassy in Canberra: see, for example, L Maher, “ASIS ’D’ notice controversy” (1995) 2 Media Law Reporter 139. See further [10.30].

136 137

Fraser v Evans [1969] 1 QB 349. Bacich v Australian Broadcasting Corporation (1992) 29 NSWLR 1 at 15.

[7.400] 487

Australian Media Law

directors/shareholders. Any duty of confidence owed to the company will be owed equally to the directors/shareholders, and the directors/shareholders will have the same standing as the company to sue for breach. 138

Interlocutory injunction [7.410] An interlocutory injunction may be granted to restrain publication of confidential information not only by a person who was a party to the confidence but also by other persons into whose possession that information has improperly come. The injunction may not only restrain the disclosure of the information, but also prevent copies being made of any record of that information, and, if copies have already been made, to restrain them from being further copied. 139 Once again, however, such an injunction will only be granted at the instance of the party to whom the duty of confidence is owed. 140 The purpose of an interlocutory injunction is to preserve the status quo until a full trial of the issues. 141 The general approach to determining whether an interlocutory injunction should be granted is whether there is a serious question to be tried and for the balance of convenience to be in favour of the grant of the injunction. 142 When assessing the balance of convenience, the court will take into account matters such as whether the applicant will suffer a loss capable of monetary compensation if the injunction is refused, and any adverse consequences for the defendant if the injunction is granted. 143 A judge considering an application for interlocutory injunction is usually called upon at very short notice to make a decision, often on inadequate and/or incomplete evidence, 144 such that an error (for example, in relation to whether the information has passed into the public domain) will effectively destroy a plaintiff’s cause of action before he or she has had an opportunity to have the validity of that claim tested on a final hearing. 145 In times of cut-throat competition and tight 138 139 140

Bacich v Australian Broadcasting Corporation (1992) 29 NSWLR 1 at 15. Lord Ashburton v Pape [1913] 2 Ch 469 at 475. Fraser v Evans [1969] 1 QB 349 at 361, 363; Bacich v Australian Broadcasting Corporation (1992) 29 NSWLR 1 at 15.

141

Recent examples include Nationwide News Pty Ltd v Australian Broadcasting Corporation [2005] NSWSC 945 (newspaper publisher with the serialisation rights to a book written by Mark Latham, the former leader of the Federal Opposition, seeking an interlocutory injunction restraining the broadcast of an interview of Mr Latham by Andrew Denton for his Enough Rope program containing material to be published in the newspaper) and British American Tobacco Australia Services Ltd v John Fairfax Publications [2006] NSWSC 1197 (documents related to tobacco litigation allegedly leaked to the media by an employee of the plaintiffs’ former solicitors).

142 143

American Cyanamid Co v Ethicon Ltd [1975] AC 396. See, for example, Woodward v Hutchins [1977] 1 WLR 760 at 764-765. In Nationwide News Pty Ltd v Australian Broadcasting Corporation [2005] NSWSC 945 the judge balanced the inconvenience of an interruption to programming at the last moment against the high risk that the plaintiff would suffer damage in the form of the loss of exclusivity of material of a high political content and of great interest to the public which, although extremely difficult if not impossible to calculate in monetary terms, would likely result in a loss of sales of newspapers and similar economic loss.

144

In Nationwide News Pty Ltd v Australian Broadcasting Corporation [2005] NSWSC 945, for example, Palmer J was called upon to make an urgent ex tempore judgment on the basis of “bare assertions, denials and affirmations from the Bar Table on instructions”: at [15].

145

Westpac Banking Corporation v John Fairfax Group Pty Ltd (1991) 19 IPR 513 at 525 per Powell J.

488 [7.410]

Chapter 7 – Confidentiality and Sources of Information

deadlines, this is apt to lead to tensions between media zeal and the judicial stoicism. One judge summarised an instance of such tension as the “almost frantic, and, at times self-righteous attempts of the media, and others, to rob the plaintiff’s documents of the confidentiality to which they are entitled”. 146 In England a practice has emerged of courts granting so-called “super-injunctions” which seek to restrain not only disclosure of the confidential information but also the identities of those involved in the legal dispute or even reporting of the existence of the injunction itself. The first case of such an order was in a case involving allegations that a company called Trafigura was dumping toxic waste in the Ivory Coast. 147 The Guardian newspaper reported that: “Legal obstacles, which cannot be identified, involve proceedings, which cannot be mentioned, on behalf of a client who must remain secret.” 148 The use of super-injunctions has gained prominence through their use by high profile individuals as a means of protecting their privacy. 149

Permanent injunction [7.420] When the matter reaches trial, the court may choose to either to continue the injunction in a more permanent form, discharge the injunction or refuse to renew the injunction if it is of a type that only subsists until trial. 150 An injunction is a discretionary remedy and may be refused, particularly if damages are an adequate remedy for the plaintiff. 151 One reason why the court may choose to exercise its discretion against granting an injunction may be that the plaintiff has not come to the court “with clean hands”, that is, that the plaintiff had committed some wrongdoing. For example, an injunction may be refused where the information has, until its disclosure, been kept confidential as a result of suppression and intimidation. 152 A threatened disclosure of confidential personal information may be an appropriate instance for the grant of a permanent injunction since, unlike disclosure of commercial secrets, it is unlikely that damages would be an adequate remedy. 153 146 147

Westpac Banking Corporation v John Fairfax Group Pty Ltd (1991) 19 IPR 513 at 525 per Powell J. See, for example, “How the Trifigura story unfolded”, The Guardian (13 October 2009), http:// www.guardian.co.uk/world/2009/oct/13/how-trafigura-story-unfolded?intcmp=239.

148

D Leigh, “Guardian gagged from reporting parliament”, The Guardian (12 October 2009), http:// www.guardian.co.uk/media/2009/oct/12/guardian-gagged-from-reporting-parliament. See, for example, ETK v News Group Newspapers Ltd [2011] EWCA Civ 439; CTB v News Group Newspapers Ltd [2011] EWHC 1232. As was the case in Church of Scientology of California v Kaufman [1973] RPC 635.

149 150 151 152 153

Seager v Copydex Ltd [1967] 2 All ER 415; Shelley Films Ltd v Rex Features Ltd (unreported, English Chancery Division, Mann QC, 10 December 1993). Hubbard v Vosper [1972] 2 QB 84 at 99 per Megaw LJ; Church of Scientology of California v Kaufman [1973] RPC 635 at 654-658. See Argyll v Argyll [1967] 1 Ch 302 at 333 (threatened disclosure of marital communications); X v Y [1988] 2 All ER 648 at 661 (threatened disclosure of AIDS patients’ hospital records).

[7.420] 489

Australian Media Law

Damages [7.430] An order for damages may be more appropriate in some circumstances, especially those involving commercial secrets. 154 In such a case, the right in respect of which damages are to be awarded is the right to the confidential information and not a right to have a confidence respected. 155 The fact that the assessment of damages may be difficult does not relieve the court of its duty to assess them, nor does the fact that the amount of the loss may be dependent upon some contingency. 156 A lost chance may, in the circumstances, be so small that no more than nominal damages are appropriate. However, where the lost chance is seen as being significant, substantial damages are merited. 157 Damages may also be awarded where personal secrets are disclosed, either as equitable compensation or as damages under Lord Cairns’ Act as an alternative to injunction. Such an award may be appropriate where the essence of the plaintiff’s case is that he or she had been embarrassed by the exposure of private information, rather than that the defendant had profited from the use of the information. 158 The availability of this remedy may enable the action for breach of confidence to be used as a means of redress for a disclosure of information in breach of a person’s privacy. 159

Account of profits [7.440] Where the disclosure has already taken place and the information has passed into the public domain and become public knowledge, no matter how scandalous the defendant’s conduct, the grant of an injunction may be futile. In such a case the court may choose to order an account of profits whereby the defendant is obliged to hand over to the plaintiff all profits derived from the unauthorised use of the information. The remedy has an obvious application in the case of an unauthorised use of a trade secret which the defendant has put to his or her commercial advantage. It has also been considered appropriate in the case of newspapers which have increased their circulation by publication of confidential information which is no longer capable of being restrained by injunction due to the widespread availability of the information from other sources. 160 However, stripping the defendant of riches wrongfully acquired may still seem an inadequate remedy to some. 161 It has been suggested that where the defendant newspaper is serialising a book which itself has misused confidential information, any account of profits ordered against the 154

155

See, for example, Talbot v General Television Corporation Pty Ltd [1980] VR 224 (plaintiff developed a concept for a television program and submitted it to television network – damages were awarded when the concept used by the network in one of its other programs). Talbot v General Television Corporation Pty Ltd [1980] VR 224 at 250.

156 157 158 159

Talbot v General Television Corporation Pty Ltd [1980] VR 224 at 251. Talbot v General Television Corporation Pty Ltd [1980] VR 224. Giller v Procopets (2008) 24 VR 1 at [423]-[424], [428]. See [8.940]-[8.960].

160 161

Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 3 WLR 776 at 788, 792, 801. Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 3 WLR 776 at 792 per Lord Brightman.

490 [7.430]

Chapter 7 – Confidentiality and Sources of Information

newspaper should not, in the taking of the account, deduct in the assessment of the newspaper’s gain any sums paid to the author or publisher as consideration for the serialisation licence granted. This is due to the fact that neither the author nor the publisher may be in a position to bring an action for recovery of such payments, for example, because the serialisation contract is illegal due to the threat to national security. 162

Criminal contempt by publication [7.450] Where a media defendant is not subject to, but knows of, an interlocutory injunction against a third party (usually another media organisation) and publishes the confidential material that is the subject of the injunction, that media defendant may be guilty of a criminal contempt. 163 The actus reus of the offence comprises three elements: (1) the defendant publishes information which falls within the ambit of the injunction; (2) with the result that the purpose of the court in making the injunction is “frustrated, thwarted or subverted”; and (3) in consequence there is some significant and adverse effect on the administration of justice. In addition the defendant must have had the necessary mens rea in the sense of a specific intent of prejudicing or impeding the administration of justice by frustrating the evident purpose of the court in granting the injunction. 164 Example

Attorney-General v Punch Ltd [7.460] Attorney-General v Punch Ltd [2003] 1 AC 1046 A former MI5 officer left the Secret Service taking with him many confidential documents containing sensitive information concerning the Secret Service. He wrote a number of newspaper articles using some of this information. Anticipating further articles, the Attorney-General obtained an interlocutory injunction against the former officer from disclosing any further information relating to the Secret Service. Subsequently, the editor of Punch magazine approached the former officer to write a column for the magazine, despite the editor being aware of the terms of the injunction. The former officer wrote and the editor published an article which included three previously unpublished items of confidential information. The Attorney-General brought proceedings against the editor for third party contempt. The Attorney-General had stated that his purpose in obtaining the interlocutory injunction in the first place was to protect national security. The editor argued that in the circumstances that purpose had not been thwarted because the publication did not threaten the national security. The House of Lords held that the purpose of the claimant in seeking the interlocutory injunction was irrelevant. The relevant purpose was that of the court in making the 162 163 164

Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 3 WLR 776 at 788 per Lord Keith. Attorney-General (UK) v Times Newspapers Ltd [1992] 1 AC 191 (Spycatcher case). Attorney-General (UK) v Times Newspapers Ltd [1992] 1 AC 191 (Spycatcher case) followed in Australia: see CCOM Pty Ltd v Jiejing Pty Ltd (1992) 36 FCR 524 at 531 (Fed Ct) per Drummond J. See also Reid v Howard (1993) 31 NSWLR 298 at 309 (reversed on other grounds (1995) 184 CLR 1); Grant-Taylor v Jamieson [2002] NSWSC 634 at [12]-[13]; Liverpool City Council v Palerma Pty Ltd [2008] NSWLEC 311.

[7.460] 491

Australian Media Law Attorney-General v Punch Ltd cont. order, which meant the effect it was intended to have between the parties. The purpose of the order could be gleaned from its terms. In this case the purpose of the judge was to preserve the confidentiality of information specified in the order, so that the court at trial could effectively adjudicate on disputed issues of confidentiality. Accordingly the actus reus of the offence was shown here by the editor publishing and thereby destroying the confidentiality of the information that the injunction sought to preserve, subverting the purpose of the order. The information revealed had a significant and adverse effect on the trial of the action against the former officer. It was therefore not a case where the publication was inconsistent with the injunction in only a technical or trivial way. Further, the necessary mens rea was made out. The editor was an intelligent man and an experienced journalist, who well understood that the Attorney-General’s action centred on issues of confidentiality. Inevitably, he must have appreciated that by publishing the article he was doing precisely what the injunction was designed to prevent. The editor had therefore knowingly interfered with the administration of justice.

[7.470] The third element of the actus reus is that the third party’s actions have some significant and adverse effect on the administration of justice. There must be something more than mere trivial inconsistency. 165 Example

Attorney-General v Newspaper Publishing plc [7.480] Attorney-General v Newspaper Publishing plc [1997] 3 All ER 159 A number of persons associated with a company called Ordtech were convicted of conspiracy to sell arms to Iraq contrary to law. After their conviction, it came to light that a number of documents existed which showed that the British Government had been well aware of what the Ordtech defendants had been doing and had been content to turn a blind eye. Before the hearing of an appeal, the Court of Appeal ordered that the Crown disclose the documents in edited and summarised form for the purposes of the appeal only. After the appeal was decided in favour of the Ordtech defendants, the Lord Chief Justice ordered that all documents be returned and warned that any continuation of the history in that case of orders not being observed to the letter would be referred to the Attorney-General. A reporter from the Independent heard this comment but made no note of it and was not the court reporter. Meanwhile, Blackhurst, another Independent reporter had obtained copies of some of the documents from an independent source. Blackhurst and an editor quizzed the other reporter about whether the judge’s comment extended to the media, but without clarifying the matter. Blackhurst then made a number of enquiries in an attempt to discover exactly what the judge had said, including contacting the court shorthand writers and the office of the Chief Justice, and consulting material circulated by the Press Association concerning the

165

Attorney-General v Newspaper Publishing plc [1997] 3 All ER 159 at 168-169.

492 [7.470]

Chapter 7 – Confidentiality and Sources of Information Attorney-General v Newspaper Publishing plc cont. Ordtech appeal. None of these enquiries clarified the matter. The Independent decided to publish a story written by Blackhurst which included facsimiles of extracts from two of the documents. The Attorney-General thereupon charged the newspaper, its editor and Blackhurst with contempt. The English Court of Appeal held that restraints on freedom of expression should be no wider than necessary in a democratic society. Accordingly, conduct by a third party which is inconsistent with a court order in only a trivial or technical way should not amount to a criminal contempt. Here the newspaper published only an additional two sentences which were not cited in the court judgment. It was hard to conceive how those sentences could cause harm to anyone. The reproduction of documents did not significantly interfere with the administration of justice. The actus reus of criminal contempt was not shown. Moreover, the newspaper made a genuine and bona fide attempt to ascertain whether there was a restriction on publication. When the time arrived to decide finally whether or not to publish, the editor was still uncertain but did not understand that there had been an order binding on the press and genuinely believed that the newspaper could publish the documents. Accordingly, the necessary mens rea could not be shown.

[7.490] The relevant standard of proof of the necessary mens rea and actus reus is proof beyond a reasonable doubt. 166 In relation to the necessary mens rea, it is not necessary to show that the defendant was aware of the full and precise terms of the relevant orders. It is sufficient for the claimant to establish knowledge of the substance of the orders. 167 Using the law of criminal contempt against a non-party has been the subject of criticism due to its potential to work great injustice. In this connection, it is worth remembering that in its terms the decision is not limited to the media or cases of freedom of expression. 168 Some specific concerns identified by Stewart and Chesterman include: • whether the principle applies to final injunctions – including whether the “evident purpose” of a final injunction is the same for these purposes as an interlocutory injunction; • if the duty of confidence is owed by the confidant due to a personal equitable obligation, why should a person who does not owe that obligation also be restrained from disclosing the information? And

166

CCOM Pty Ltd v Jiejing Pty Ltd (1992) 36 FCR 524 at 532.

167

Amalgamated Television Services Pty Ltd v Marsden (2001) 122 A Crim R 166 at [53]; Sun Newspapers v Brisbane TV Ltd (1989) 92 ALR 535 at 538; Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 355-356.

168

See, for example, Stewart and Chesterman (1992) 14 Adel LR 1 at 25.

[7.490] 493

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• the anomaly inherent in splitting the enforcement of confidentiality remedies in the sense that while the confider is the person who seeks any remedy against the confidant, he or she is not the person who would commence contempt proceedings against a third party seeking to reveal the same information. This instead will normally be the Attorney-General or Director of Public Prosecutions. 169 A further difficulty is presented in the age of social media. It may seem anomalous to charge a print or electronic media organisation with criminal contempt for revealing information that is the subject of an injunction against another organisation in circumstances where the same information – for example the identity of a person involved in a scandal – is being widely disseminated and discussed by divers members of the general public using social media such as Facebook or Twitter. 170 This was illustrated by a 2011 case involving a prominent football player who had an extra-marital affair with a woman who had appeared on the Big Brother reality show. She subsequently threatened to sell her story to a newspaper. The football player obtained a super-injunction not only preventing the woman and the newspaper from publishing the details of the affair but also preventing publication of his identity. 171 Within a week the player had been identified in over 75,000 tweets on Twitter. Nevertheless, Eady J of the English High Court was not prepared to vary or lift the original injunction, 172 meaning that any mainstream media organisation publishing the player’s identity risked committing criminal contempt for doing so. His Honour did so on the basis that “wall to wall excoriation in national newspapers, whether tabloid or ‘broadsheet’ is likely to be significantly more intrusive and distressing to those concerned than the availability of information on the internet or in foreign journals to those, however many, who take the trouble to look it up.” 173 A similar argument might justify charging a media organisation with contempt for publishing information subject to an injunction granted against another media defendant but not any of the individual general public users of social media, who lack the expectation of authenticity and veracity associated with professional journalism.

Whistleblowers and the media [7.500] All Australian jurisdictions except for the Northern Territory have enacted legislation to facilitate the disclosure of certain matters in the public interest. These statutes provide for immunity for “whistleblowers” from criminal or civil liability, including actions for breach of confidentiality, for what are variously termed “disclosure of public interest information”, 174 “public interest disclosures”, 175 and “protected disclosures”. 176 In the ACT, Tasmania, Victoria 169 170 171 172 173 174 175 176

See, for example, Stewart and Chesterman (1992) 14 Adel LR 1 at 25-32. R Booth, “Trafigura: A few tweets and freedom of speech is restored”, The Guardian (13 October 2009) http://www.guardian.co.uk/media/2009/oct/13/trafigura-tweets-freedowm-of-speech?intcmp=239. CTB v News Group Newspapers Ltd [2011] EWHC 1232. CTB v News Group Newspapers Ltd [2011] EWHC 1326. CTB v News Group Newspapers Ltd [2011] EWHC 1326 at [24]. See further [8.1010] Whistleblowers Protection Act 1993 (SA), s 5; Public Interest Disclosure Act 2003 (WA), s 13. Public Interest Disclosure Act 2013 (Cth), s 10; Public Interest Disclosures Act 2012 (ACT), s 35. Public Interest Disclosures Act 1994 (NSW), s 21; Public Interest Disclosures Act 2002 (Tas), ss 16, 17; Protected Disclosure Act 2012 (Vic), ss 39, 40.

494 [7.500]

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and Western Australia, though, these statutes are of limited assistance to the media. Under most, the disclosure must be to a proper authority. 177 They contemplate no case where a public interest disclosure may be made to the media and still allow for the whistleblower to be protected. By contrast, in New South Wales a public official may make a public interest disclosure to a journalist where he or she has already made substantially the same disclosure to an investigating authority or proper authority, which either: • decided not to investigate the matter; • decided to investigate the matter but did not complete the investigation within six months; • investigated the matter but did not recommend the taking of any action; or • failed to notify the whistleblower within six months of the disclosure being made of whether or not the matter is to be investigated. Importantly, however, the public official must have reasonable grounds for believing that the disclosure is substantially true and the disclosure must be substantially true. 178 A similar provision appears in the Queensland statute, which provides that a person may make a public interest disclosure to a journalist where the entity to which the disclosure has been made either decided not to investigate or deal with the disclosure; investigated the disclosure but did not recommend the taking of any action; or did not notify the person within six months after the disclosure was made whether or not the disclosure was to be investigated or dealt with. 179 Once again, the disclosure must be of substantially the same information but there is no requirement that the whistleblower believed that the information was true or that the disclosure was in fact substantially true. “Journalist” for these purposes is defined as meaning a person engaged in the occupation of writing or editing material intended for publication in the print or electronic news media. Arguably, therefore, it would not extend to a person who maintained a blog or otherwise used social media, unless the person was engaged in the occupation of writing or editing for traditional print or electronic media. The Commonwealth statute, which was enacted in 2013, is limited to “disclosable conduct”, which is defined as meaning (in essence): • illegal conduct; • corruption or conduct perverting the course of justice; • maladministration; • fabrication, falsification, plagiarism or deception in relation to scientific research; • wastage of public money or property; • danger to health or safety; and 177

Public Interest Disclosures Act 2012 (ACT), s 15; Public Interest Disclosures Act 2002 (Tas), s 7; Protected Disclosure Act 2012 (Vic), s 13; Public Interest Disclosure Act 2003 (WA), s 5.

178 179

Public Interest Disclosures Act 1994 (NSW), s 19. Public Interest Disclosure Act 2010 (Qld), s 20.

[7.500] 495

Australian Media Law

• danger to the environment. 180 The section expressly includes abuse of position by public official or conduct that would give reasonable grounds for disciplinary action against a public official. 181 The Commonwealth statute also contemplates that a person may make an “external disclosure” to “any person other than a foreign public official” where there has already been an “internal disclosure” to either an “authorised internal recipient” or a supervisor of the discloser. 182 This may occur where any of the following apply: • a disclosure investigation relating to the internal disclosure was conducted and the discloser believes on reasonable grounds that the investigation was inadequate; • a disclosure investigation relating to the internal disclosure was conducted and the discloser believes on reasonable grounds that the response to the investigation was inadequate; • the time limit for investigation of an internal disclosure (generally 90 days) as expired; • the disclosure is not, on balance, contrary to the public interest; • no more information is publicly disclosed than is reasonably necessary to identify one or more instances of disclosable conduct; • the information does not consist of, or include, intelligence information; and • none of the conduct with which the disclosure is concerned relates to an intelligence agency. The last two exclusions would prevent a public disclosure of intelligence information of a kind that was done by Bradley Manning when in 2013 he delivered an enormous amount of classified information to the WikiLeaks website and by Edward Snowden when also in 2013 he delivered over 1.7 million intelligence files, including Australian intelligence files, to the The Guardian and Washington Post newspapers, some of which material was also published in Australia by the ABC in particular. The South Australian Act also contemplates a situation where disclosure may be made to someone other than an appropriate authority and still be made to one who is “in the circumstances of the case, reasonable and appropriate”, possibly accommodating disclosure to the media in an appropriate case. 183 Even in these cases where disclosure to the media is contemplated, the protection against criminal or civil liability or other form of reprisal conferred by the statutes only extends as far as the whistleblower making the disclosure. While this may be important in securing the source of the story, it confers no specific protection on the media who may seek to publish the story. Instead, in such a case the media is left to rely on its usual defences such as justification, in the case of an action for breach of confidentiality, and the range of defences available in an action for defamation. 180 181

Public Interest Disclosure Act 2010 (Qld), s 29(1). Public Interest Disclosure Act 2010 (Qld), s 29(2).

182 183

Public Interest Disclosure Act 2010 (Qld), s 26 Whistleblowers Protection Act 1993 (SA), s 5(3).

496 [7.500]

Chapter 7 – Confidentiality and Sources of Information

Disclosure of journalists’ sources Introduction [7.510] A witness at a trial is required to answer questions or produce documents that would provide relevant and admissible evidence to the court. The same obligation is imposed on persons who are called as witnesses before statutory tribunals, parliamentary committees or investigatory bodies which are invested with power to compel people to give evidence. A witness who refuses to answer a relevant question or produce a document without a lawful excuse is guilty of disobedience contempt. It is a lawful excuse to refuse to answer a question or produce a document if to do so would incriminate the person or involve the disclosure of confidences exchanged within relationships falling within one of the classes of privilege known to the law. They include lawyer and client and, in some jurisdictions, doctor and patient, priest and penitent and sexual offence victim and counsellor. The obligation to answer a question or produce a document can create a moral and ethical dilemma for journalists where this would involve revealing the identity of a source of information. This is because journalists who receive information from a source often give some kind of undertaking to the source that his or her identity will not be revealed. 184 This undertaking is expressed in the Code of Ethics which governs the conduct of journalists who are members of the Media Entertainment and Arts Alliance (MEAA). 185 Standard 3 of the Code states that, while anonymity should not be assured “without first considering the source’s motives and any alternative attributable source”, once given, a confidence must be respected “in all circumstances”. However, this standard, like all the others, may be overridden by “substantial advancement of the public interest or risk of substantial harm to people”. Journalists maintain that they should be regarded as having a lawful excuse for refusing in any legal proceeding to answer questions which may reveal the identity of a source of information (as opposed to the information itself). Their argument does not rest merely on a desire to protect a private interest in professional confidentiality, but on the public policy ground that unless journalists and editors are able to assure sources that information can be imparted without fear that courts will be able to discover their identity, sources will be less likely to come forward with information and the flow of information will be correspondingly impeded. 186 The likely result of this chilling effect is that journalists will be less able to discover the truth and publish it, a consequence which is not in the public interest, especially 184

Sources do not always seek to remain anonymous. Indeed, it will usually be in a journalist’s interest to identify the source, as this lends credibility to the information (or at least gives the public the opportunity to draw their own conclusions as to whether the source is credible) and reduces the risk that the journalist could be accused of having abused their position by inventing a fictitious source. The desirability of identifying sources is acknowledged by the Australian Broadcasting Corporation in its Guidance Note, Dealing with Sources. However, sources might seek anonymity where they fear for their safety or their employment or where they stand to be prosecuted or sued for divulging the information.

185 186

The MEAA Code of Ethics is reproduced in [14.1590]. The rationale for protecting the identity of sources, and the consequences of failing to do so, are further expounded in: Goodwin v United Kingdom (1996) 22 EHRR 123 at [39]; W Bacon and C Nash, “Confidential Sources and the Public Right to Know” (1999) 21(2) Australian Journalism Review 1; G Price, “‘Pack Your

[7.510] 497

Australian Media Law

if the source’s information exposes criminal activity, wrongdoing or corruption which may lead to investigations, prosecutions and perhaps even legislative change. In 1940, this argument was rejected by the High Court in McGuinness v Attorney-General (Vic) as being against all authority. 187 The effect of this decision is that at common law, when faced with a perceived conflict between their duty under the law to answer relevant questions and their duty to abide by any undertakings to their informants to maintain silence, journalists must discharge their duty to the law, as the public interest in all evidence being placed before the court outweighs any public interest in journalists maintaining confidences. 188 Journalists who refuse to do so can be prosecuted for contempt of court. The common law principle that no obligation of honour, secrecy or confidence or private undertaking arising from the nature of a journalist’s pursuit or calling can “stand in the way of the imperative necessity of revealing the truth in the witness box” has been repeatedly affirmed by English and Australian courts. 189 Courts have expressed differing views as to the cogency of the rationale advanced to support the existence of a journalist/source privilege. In McGuinness v Attorney-General (Vic), Rich J dismissed it as founded on a paradox, in that the media claim that without a guarantee of confidentiality newspapers will not be able to discover the truth and publish it, and yet when courts seek to discover the truth from the media, they claim a privilege to withhold it. 190 In John Fairfax & Sons Ltd v Cojuangco a more sympathetic High Court was prepared to accept that confidentiality of sources facilitated the free flow of information, which is a “vital ingredient” in investigative journalism, itself “an important feature of our society”. 191 Nevertheless, the Court refused to elevate the public interest in freedom of information above the public interest in having all relevant and admissible evidence before the court. Not all judges accept that confidentiality of sources is essential to the free flow of information. Indeed, it has been suggested that because the law on this matter has been clear for so long, it is reasonable to

187 188

189

190 191

Toothbrush!’ Journalists, Confidential Sources and Contempt of Court” (2003) 8 Media and Arts Law Review 259; Corrs Chambers and Westgarth on behalf of News Ltd et al, Submission to the Australian Law Reform Commission, Review of the Uniform Evidence Acts, Non-Disclosure of Confidential Sources by Journalists (30 September 2005), pp 8-9. McGuinness v Attorney-General (Vic) (1940) 63 CLR 73 at 104. Journalists may, however, be able to claim the privilege against self-incrimination as a legally recognised justification for refusing to answer a question or produce a document that would reveal a source. This will be the case where the source committed an offence in giving the journalist the information and the journalist committed an offence in receiving it. However, the privilege against self-incrimination cannot be claimed where the journalist concerned has been offered immunity from prosecution. McGuinness v Attorney-General (Vic) (1940) 63 CLR 73 at 102-103; Re Evening News (1880) 1 LR (NSW) 211 at 240; Attorney-General v Clough [1963] 1 QB 773 at 792; Attorney-General v Mulholland [1963] 2 QB 477 at 491, 492; Re Buchanan (1964) 65 SR (NSW) 9; Re an Inquiry under the Company Securities (Insider Dealing) Act 1985 [1988] 1 AC 660 at 681; Independent Commission Against Corruption v Cornwall (1995) 38 NSWLR 207; Re the Royal Commission into the Use of Executive Power; The Queen v Parry (unreported, WA Full Court of Supreme Court, 1 May 1997 (determination of contempt)); (1997) 92 A Crim R 295 (imposition of penalty); Harvey v County Court (Vic) [2006] VSC 293; R v McManus and Harvey [2007] VCC 619. McGuinness v Attorney-General (Vic) (1940) 63 CLR 73 at 87. John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346 at 354. See also McKenzie v Magistrates” Court (Vic) [2013] VSCA 81 at [3].

498 [7.510]

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assume that potential sources of information will be aware that any undertaking given by a journalist must yield to the paramount requirements of the interests of justice. 192 Perhaps a greater emerging threat to journalists is the recent revelations of massive clandestine government surveillance of personal data stored on US servers. 193 If data about sources can be garnered in this manner, any legal protection given to journalists which prevents them from having to reveal their sources in a court of law is circumvented.

Options for a journalist’s privilege [7.520] Although the media have no privilege to shield their sources at common law, it is open to a parliament to confer a privilege through legislation. Broadly speaking, such a privilege could take one of three forms. First, a parliament could confer an absolute privilege on journalists that would entitle them to refuse to identify their sources in all circumstances. However, an absolute privilege fails to achieve a proper balance between the public interest in the administration of justice and the public interest in the free flow of information which is facilitated by respecting the confidentiality of journalists’ sources, since the former is always overridden. It is also prone to abuse by unscrupulous journalists. 194 This option has not been seriously advocated in Australia in recent times. 195 A second option is to invest judges with a discretion to relieve a journalist of the obligation to answer questions or produce documents that would involve the revelation of a source (the “guided judicial discretion model”). 196 Although a guided judicial discretion does not give journalists a right to refuse to reveal the identity of a source, and is therefore not a privilege in the true sense of the word, 197 it has the advantage of obliging a court to weigh up the competing public interests on a case by case basis, and to order disclosure of a source only if the public interest in the administration of justice outweighs the public interest in the 192 193

194 195

196

197

Nicholls v Director of Public Prosecutions (1993) 61 SASR 31 at 48, 52; R v McManus and Harvey [2007] VCC 619 at [29]. Matthew Ryder QC and Simon McKay, “PRISM: The Real Concern is That Governments May Not be Breaking Any Law at All” Inforrm, 11 June 2013. https://inforrm.wordpress.com/2013/06/10/prism-the-realconcern-is-not-not-that-governments-may-be-breaking-the-law-but-that-they-may-be-obtaining-andcollecting-our-data-without-breaking-any-law-at-all-matthew-ryder-qc-and-simon-mckay/. A prime example is the PRISM program begun in 2007 by the United States’ National Security Agency. Some of the abuses to which an absolute privilege could give rise are listed in Price (2003) 8 Media and Arts Law Review 259 at 274. An absolute privilege was adopted in a Bill introduced into the South Australian Legislative Council in August 1993 by the Australian Democrats. It was also advocated by the Australian Press Council in a submission to the Senate Standing Committee on Constitutional and Legal Affairs: Off the Record: Shield Laws for Journalists’ Confidential Sources (1994), para [7.52]. An absolute privilege exists in Austria, Germany and in some States of the United States of America. In the past, this option has received the support of the Australian Law Reform Commission, the Law Reform Commission of Western Australia and the Senate Standing Committee on Constitutional and Legal Affairs. See: Australian Law Reform Commission, Evidence, Report 38 (1987), pp 201-203; Law Reform Commission of Western Australia, Report on Professional Privilege for Confidential Relationships (1993) (the recommendations made by the Commission were not confined to journalists and their sources, but extended to a variety of confidential relationships); Senate Standing Committee on Constitutional and Legal Affairs, Off the Record: Shield Laws for Journalists’ Confidential Sources (1994). Director-General of Department of Community Services v D [2006] NSWSC 827 at [23].

[7.520] 499

Australian Media Law

protection of sources, having regard to certain specified criteria. For their part, it gives journalists an opportunity to argue that the balance comes down in favour of non-disclosure. Thirdly, a parliament could enact a presumption of non-disclosure of a source’s identity, which can be displaced by those seeking disclosure only in strictly enumerated circumstances (the “presumption of non-disclosure model”). Any shield law that is introduced by parliament must also grapple with the ambit of the privilege: should it be available to anyone who reports news and information to the public, including freelance reporters, bloggers and citizen journalists, or should it be confined to professional journalists employed by mainstream news media outlets? 198 Currently, the common law position outlined in [7.510] prevails in the Northern Territory, Queensland and South Australia. 199 Tasmania has introduced a guided judicial discretion termed a professional confidential relationship privilege – while the Commonwealth 200 and Victoria each have a statutory presumption of non-disclosure. The Australian Capital Territory, New South Wales and Western Australia each have a guided judicial discretion and a statutory presumption of non-disclosure. Each of these three positions will be discussed. 201 The MEAA has called for the introduction of uniform, national protection of journalists’ sources.

The common law position [7.530] As explained above, the common law does not recognise any privilege which gives a journalist the right to refuse to disclose the identity of a source in response to a relevant question. However, even at common law, most judges regard themselves as having a discretion to uphold a journalist’s claim to immunity even where the inquiry as to the identity of

198

199

200 201

This issue has been considered at greater length by numerous courts in the United States with varying outcomes: In re Grand Jury Subpoena (Judith Miller) 397 F 3d 964 at 979-981 (2005) (DC Cir, 2005); O’Grady v Superior Court 139 Cal App 4th, 1423 (2006); Obsidian Finance Group, LCC v Cox (Nos. 12-35238 & 35319 (9th Cir. 17 January 2014). See also: A Fargo, “The Year of Leaking Dangerously: Shadowy Sources, Jailed Journalists and the Uncertain Future of the Federal Journalist’s Privilege” (2006) 14 William and Mary Bill of Rights Journal 1063 at 1112-1118; M Papandrea, “Citizen Journalism and the Reporter’s Privilege” (2007) 91 Minnesota Law Review 515; Justin Silverman of the Citizen Media Law Project, State Shield Laws: An Overview http://www.justinsilverman.com/shieldlaws.pdf; Benjamin J Wischnowski, “Bloggers with Shield: Reconciling the Blogosphere’s Intrinsic Editorial Process with Traditional Concepts of Media Accountability” (2009) 97 Iowa Law Review 327; K A Rosenbaum, “Protecting More Than the Front Page: Codifying a Reporter’s Privilege for Digital and Citizen Journalists” (2014) 89(3) Notre Dame Law Review 1427. Two shield law bills have been introduced into the South Australian parliament. The Evidence (Protections for Journalists) Amendment Bill 2014 (SA) was a private member’s bill. It was passed by the Legislative Council but rejected by the House of Assembly. A similar Bill – the Evidence (Journalists) Amendment Bill 2014 (SA) – was introduced into the Legislative Council in July 2014. It was passed by the Council and, at the time of writing, is before the House of Assembly. The Commonwealth adopted a judicial discretion model in 2007, but replaced it with a presumption of non-disclosure model in 2011. A helpful chart that compares the legislative provisions in each jurisdiction can be found in: Media Entertainment and Arts Alliance, Secrecy and Surveillance: The Report into the State of Press Freedom in Australia in 2014 (2014) at 26-29.

500 [7.530]

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a source is relevant and proper. 202 The advantage of such a discretion is that it recognises the desirability, in certain circumstances, of permitting the identity of a source to remain undisclosed, while making it plain that the interests of justice remain paramount. 203 Differences of opinion exist as to the circumstances in which this discretion is properly exercised. Some cases suggest that disclosure will be compelled only if the question is one the answer to which will serve a useful purpose in relation to the proceedings at hand, 204 while in Attorney-General v Clough 205 the court eschewed a particular test, simply stating that it is open to a court to find that special circumstances in a particular case may require the recognition of a journalist’s claim to immunity. In Australia, a unanimous High Court has adopted the view that a court should not compel a journalist to disclose the identity of a source at a trial unless disclosure is necessary in the interests of justice. 206 If justice can be done without identifying the source, the journalist should not be required to make the disclosure. It has been noted that in applying this test, courts are not required to take into account the important public benefits of protecting sources. 207 It has been suggested that a discretion based on necessity is to be preferred, as it reflects the true nature of the contempt power, which is directed at ensuring the effective administration of justice. 208 It also brings the position at trial into line with the position under the “newspaper rule” and in relation to pre-trial discovery orders. 209 However, it has its critics. 210

202 203 204 205 206

207

208

209 210

Not all judges have recognised the existence of such a discretion: see Re Buchanan (1964) 65 SR (NSW) 9 at 11. Nicholls v Director of Public Prosecutions (1993) 61 SASR 31 at 51. Attorney-General v Mulholland [1963] 2 QB 477 at 492 per Donovan LJ; Hancock v Lynch [1988] VR 173 at 176-178. Attorney-General v Clough [1963] 1 QB 773 at 792. John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346 at 354-355. This test has also been adopted in English cases: Attorney-General v Mulholland [1963] 2 QB 477 at 489-490 per Denning MR; Maxwell v Pressdram Ltd [1987] 1 All ER 656. See also: Nicholls v Director of Public Prosecutions (1993) 61 SASR 31 at 40 per Legoe ACJ, 51 per Perry J; Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290 at [77]. Corrs Chambers Westgarth on behalf of News Ltd et al, Submission to Australian Law Reform Commission, Review of the Uniform Evidence Acts, Non-disclosure of Confidential Sources by Journalists (30 September 2005), p 5. S Walker, “Compelling Journalists to Identify Their Sources: ‘The Newspaper Rule’ and ‘Necessity’” (1991) 14 University of New South Wales Law Journal 302 at 307. Applying a necessity test to investigatory bodies such as the Independent Commission Against Corruption is fraught with difficulty, as the statutory powers possessed by these bodies are often wide enough to displace the common law test of disclosure being necessary in the interests of justice. See [7.580]-[7.620]. The Western Australia Law Reform Commission expressed a dislike for this additional requirement of necessity, arguing that it is inconsistent with the maintenance of authority in the court that a witness, when charged with contempt, should be in a position to second guess the ruling of the trial judge as to whether a question is necessary: Law Reform Commission of Western Australia, Contempt in the Face of the Court, Discussion Paper 1 (2001), pp 20-21; Law Reform Commission of Western Australia, Report of Review of the Law of Contempt (2003), pp 65-67. The Commission considered that, subject to a claim of privilege – which the Commission proceeded to recommend – any refusal to answer a relevant question should be a contempt.

[7.530] 501

Australian Media Law

Instances where journalists have refused to answer questions [7.540] Notwithstanding the refusal of Australian courts to recognise an evidentiary privilege pertaining to journalists and their sources, until the 1990s, few Australian cases raised the issue of disclosure of confidential sources by journalists called to give evidence in a court or before an investigatory body. There may be a number of reasons for this: the identity of the source might not be relevant, the parties may not insist that the source be identified or, if a government is involved it may not wish to be perceived as attacking the media. 211 Further, a media organisation may elect not to defend proceedings if this would involve the revelation of a confidential source. A spate of cases in which journalists were cited for contempt for refusing to disclose the identity of their sources occurred in the 1990s. 212 Another series of cases involving source protection has come before the courts in recent years. 213 These instances are not peculiar to Australia. 214 Example

R v Barrass [7.550] R v Barrass (unreported, WA Court of Petty Sessions, No 27602 of 1989); R v Barrass (unreported, WA District Court, Kennedy J, 7 August 1990)

211

Walker (1991) 14 University of New South Wales Law Journal 302 at 305.

212

R v Budd (unreported, Qld Supreme Court, Dowsett J, 20 March 1993) (14 day sentence for refusal to reveal a source in a defamation action against newspaper); Independent Commission Against Corruption v Cornwall (1995) 38 NSWLR 207 (2 month suspended sentence and 90 hours community service for refusing to name a source at hearing of the Independent Commission Against Corruption); Nicholls v Director of Public Prosecutions (1993) 61 SASR 31 (12 week sentence for refusal by a journalist to name the source of documents in his own trial for obtaining those documents by false pretences, impersonation and forgery); Re the Royal Commission into the Use of Executive Power; The Queen v Parry (unreported, WA Full Court of Supreme Court, 1 May 1997; (1997) 92 A Crim R 295; . Many of these cases are described in detail in R Ackland, “Bring Unto Me Your Sources For Sacrifice” (1993) 11 City Ethics 1. These cases involved the Harvey/McManus publication regarding veterans’ entitlements (Harvey v County Court (Vic) [2006] VSC 293; R v McManus and Harvey [2007] VCC 619); an application by businesswoman Helen Liu for preliminary discovery to identify the sources of information that she had corruptly paid money to Joel Gibbons MP (Liu v The Age Company Ltd [2010] NSWSC 1176; Liu v The Age Company Ltd [2011] NSWSC 53; Liu v The Age Company Ltd [2012] NSWSC 12; The Age Company Ltd v Liu [2013] NSWCA 26); an application to set aside subpoenas issued by Hancock Prospecting that would have required Stephen Pennells, a journalist employed by West Australian Newspapers Ltd, to reveal a source of information which he used to write a series of articles about Gina Rinehart’s dispute with her children (Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290); an aborted attempt by Hancock Prospecting Pty Ltd to subpoena journalist Adele Ferguson to produce documents that would reveal a source, which resulted in a successful costs application by Ferguson (Hancock Prospecting Pty Ltd v Hancock (No 2) [2014] WASC 85); and a witness summons issued to journalists Nick McKenzie and Richard Baker which required them to give evidence and produce documents in relation to their sources for an article they had published (McKenzie v Magistrates’ Court of Victoria [2013] VSC 2; McKenzie v Magistrates” Court (Vic) [2013] VSCA 81). For a description of similar examples in other jurisdictions see: J Brabyn, “Protection Against Judicially Compelled Disclosure of the Identity of News Gatherers’ Confidential Sources in Common Law Jurisdictions” (2006) 69 Modern Law Review 895.

213

214

502 [7.540]

Chapter 7 – Confidentiality and Sources of Information R v Barrass cont. In 1990, Tony Barrass, a journalist with The Sunday Times, was jailed by a Magistrate for seven days 215 and subsequently fined $10,000 by the District Court of Western Australia 216 for refusing to reveal the identity of a news source when called as a witness in proceedings involving Luders, an employee of the Australian Taxation Office charged with official corruption under the Crimes Act 1914 (Cth). The information would have been relevant to establishing Luders’ guilt. Ironically, Luders was found guilty despite the fact that the identity of the source was not revealed, and was fined a lesser amount than Barrass. The media later argued that it was absurd that a journalist who did nothing more than abide by his Code of Ethics was punished more severely than a person convicted of a relatively serious criminal offence. 217

Example

McManus and Harvey [7.560] McManus and Harvey [2007] VCC 619 In September 2005, Canberra-based Melbourne Herald Sun journalists Michael Harvey and Gerard McManus were charged with contempt for refusing to divulge the identity of a confidential source within the Department of Veterans Affairs. The source had leaked information to them that a proposed veterans’ affairs benefit was going to be less than promised in a budget announcement and less than had been recommended in a commissioned review of veterans’ pensions. The person alleged to be the source, Kelly, was prosecuted under s 70(1) of the Crimes Act 1914 (Cth) and it was at the preliminary stage of his trial in the Victorian County Court that the journalists were directed by the judge to reveal the source of their article. 218 The journalists challenged the legality of the judge’s direction but the appeal was dismissed, paving the way for the contempt charges to proceed. 219 Both journalists pleaded guilty to the contempt charges. They were each convicted and sentenced to pay a fine of $7000, but were spared a term of imprisonment. 220 In his sentencing remarks, Rozenes CJ re-iterated that under the

215 216 217 218

219 220

R v Barrass (unreported, WA Court of Petty Sessions, No 27602 of 1989). Barrass remained in prison for five days without revealing the information. R v Barrass (unreported, WA District Court, Kennedy J, 7 August 1990). Senate Standing Committee on Legal and Constitutional Affairs, Off the Record: Shield Laws for Journalists’ Confidential Sources (1994), at [3.6]. Harvey and McManus were not called to give evidence at Kelly’s trial. In January 2006 Kelly was found guilty in the County Court and convicted, but his conviction was later overturned by the Victorian Court of Appeal: R v Kelly [2006] VSCA 221. Harvey v County Court (Vic) [2006] VSC 293. The journalists sought judicial review of the decision on several points of law involving jurisdictional error and error of law on the face of the record. R v McManus and Harvey [2007] VCC 619.

[7.560] 503

Australian Media Law McManus and Harvey cont. common law, journalists are in no different position vis a vis the courts than any other citizen.

[7.570] It has been argued that any law that seeks to limit the ability of journalists to maintain the confidentiality of their sources is contrary to the implied constitutional freedom of communication concerning government or political matters. However, in Independent Commission Against Corruption v Cornwall, 221 it was held that a freedom asserted by a journalist to withhold the identity of a source cannot be characterised as freedom of speech. When a journalist is called upon to reveal the identity of a source, no one is seeking to abridge the journalist’s freedom of speech; it is the journalist’s silence that is in contest. However, more recent cases have acknowledged that the implied freedom may have an impact on this area of the law. 222 The extent to which it affects the procedure for pre-trial discovery was considered in Liu v The Age Company Ltd, 223 discussed below. 224

The “newspaper rule” [7.580] Although courts have refused to recognise an evidentiary privilege regarding journalists and their sources, there are two situations in which journalists are generally not required to disclose the identity of their sources: at the interlocutory stage of a defamation action and during pre-trial discovery procedures. As a general rule, a party to a civil action must make available for inspection all relevant documents and must answer interrogatories on all relevant matters at the interlocutory stage of the proceedings. The object of these coercive processes is to clarify the issues to be tried in the action and to enable each party to assess the strength of the other party’s case. In the context of defamation actions commenced against newspapers, a plaintiff may seek to use these processes to ascertain the identity of the source of the allegedly defamatory material. A plaintiff may want to do this in order to demonstrate that in publishing the material, the defendant was motivated by malice, lack of good faith or unreasonableness, which, if proven, would defeat certain defences that might otherwise be successfully raised. Ascertaining the identity of the source of the material may assist the plaintiff in this task. 225 However, in most cases, a plaintiff will be unable to use the discovery process as a means of compelling a newspaper to identify its source. This is because there is a rule of practice that, except in 221 222

Independent Commission Against Corruption v Cornwall (1995) 38 NSWLR 207. See [7.610].

223 224

Liu v The Age Company Ltd [2012] NSWSC 12; The Age Company Ltd v Liu [2013] NSWCA 26 See [7.630].

225

For example, if the plaintiff can show that the source could not reasonably have been believed, there is a good basis for arguing that the newspaper must have been actuated by malice or lack of good faith or acted unreasonably in publishing the material: Walker (1991) 14 University of New South Wales Law Journal 302 at 307.

504 [7.570]

Chapter 7 – Confidentiality and Sources of Information

special circumstances, newspaper defendants in defamation and related actions will not be forced to reveal the identity of their sources at the interlocutory stage of proceedings. 226 This rule is known as the “newspaper rule”. The newspaper rule is not a rule of law or evidence. It is simply a rule of practice that guides and informs the exercise of the judicial discretion. 227 It applies only at the interlocutory stage of defamation and related actions. 228 Once the trial begins, the newspaper defendant becomes subject to the general obligation to answer all relevant questions. However, given that a large proportion of defamation actions settle before trial, application of the rule means that in most cases the source will remain anonymous. Owing to the fact that the newspaper rule is relevant only at the interlocutory stage of proceedings, it is not applicable to commissions of inquiry. 229 The newspaper rule applies only to newspaper publishers, proprietors and editors and to journalists employed by newspapers on a full time basis. It does not apply to the author of a defamatory letter published in a newspaper 230 and there is great uncertainty regarding its application to freelance journalists and others who publish information to the public. 231 It has been held that, despite its name, the rule applies to television and radio as well as newspapers. 232 The newspaper rule is not absolute. It will not apply if the applicant can show that an order compelling disclosure at the interlocutory stage is necessary in the interests of justice. 233 In West Australian Newspapers Ltd v Bond, the Western Australia Court of Appeal held that the following factors will ordinarily be taken into account in deciding whether the rule should be dispensed with: First, the common law’s recognition in the “newspaper rule” of the public interest in the free flow of information by the imposition of restraints on the disclosure of the identity of a media proprietor’s or journalist’s confidential source of information, at the interlocutory stage of defamation and related actions, notwithstanding the relevance of the identity of the source to the issues to be tried. Secondly, whether, in the particular case, the information which the source has 226 227

228

229 230 231 232 233

The rule does not apply to the information provided by the source: Thiess v TCN Channel Nine Pty Ltd (No 1) [1991] 2 Qd R 715 at 719; West Australian Newspapers Ltd v Bond (2009) 40 WAR 164 at 180. Wran v Australian Broadcasting Commission [1984] 3 NSWLR 241 at 250; John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346 at 356; Lew v Herald & Weekly Times Ltd [1999] 1 VR 313 at 319-320; Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290 at [75]. John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346 at 354, 356; West Australian Newspapers Ltd v Bond (2009) 40 WAR 16 at 180; Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290 at [78]. The rule does not apply in an action for breach of confidence: British Steel Corporation v Granada Television Ltd [10981] AC 1096; Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290 at [80]-[82]. John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346 at 355. South Suburban Co-operative Society v Orum [1937] 2 KB 690. John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346 at 352. See also: Bond v West Australian Newspapers Ltd (No 2) [2008] WASC 249 at [36]. Isbey v New Zealand Broadcasting Corporation (No 2) [1975] 2 NZLR 237; Wran v Australian Broadcasting Commission [1984] 3 NSWLR 241 at 251 (current affairs programs). John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346; Hodder v Queensland Newspapers Pty Ltd [1994] 1 Qd R 49 at 57. For cases where the plaintiff failed to establish that the interests of justice required the waiver of the newspaper rule see: Lew v Herald & Weekly Times Ltd [1999] 1 VR 313 and French v John Fairfax Publications Pty Ltd [2007] VSC 105. For a case where the rule was waived see Kerrisk v The North Queensland Newspaper Co Ltd [1992] 2 Qd R 398.

[7.580] 505

Australian Media Law revealed, on a confidential basis, appears to be a matter of genuine public interest, including whether the information discloses an iniquity. Thirdly, the manner in which the information was obtained, including whether it was obtained by lawful means. Fourthly, the pleadings in the pending proceedings, including the elements of the plaintiff’s causes of action, any admissions by the defendant, and the apparent reasonableness or unreasonableness of any denials or non-admissions in the defence. Fifthly, whether the plaintiff is likely to experience real and substantial difficulty in proving any element of any cause of action without the disclosure of the identity of the confidential source. Sixthly, whether any difficulty in proof as a result of the non-disclosure of the identity of the source is likely materially to complicate the trial or unduly to extend its length, to involve significant expense for the plaintiff (especially an indigent plaintiff or a plaintiff with limited financial resources) or to cause significant inconvenience to a proposed witness. Seventhly, the apparent importance to the plaintiff and generally of the rights which he or she seeks to vindicate in the pending proceedings. 234

The rule is also subject to a qualification relating to special circumstances. 235 Although the courts have not laid down the precise circumstances which would justify an exercise of the judicial discretion to depart from the rule and compel disclosure, the High Court has indicated that special circumstances may exist “when the newspaper identifies its source in a general way and relies on that source to point up the authenticity of the imputations” or where the defamation is of a “very serious kind”. 236 The rationale for the existence of the newspaper rule is uncertain. Indeed, the rule has been described as one “erected on shifting foundations” whose precise area of operation is “shrouded in uncertainty”. 237 It was initially based on the view that disclosure of the source of information was irrelevant, even where the plaintiff pleaded express malice in response to a defence of privilege or fair comment. 238 However, once it is conceded that disclosure of the source can be relevant to the issue of malice, this basis for the rule is discredited. Other cases have sought to justify the rule on the ground that the purpose of identifying the source is to sue him or her, and that this amounts to a fishing expedition, which is an improper use of the discovery process. 239 It has also been suggested that the rule is based on public interest and public policy, namely, the freedom of the press and the important part played by the press in collecting information of public concern and disseminating it to the public. If sources thought that their identity would be revealed in proceedings taken against the newspaper, they might refuse to disclose information and this, in turn, would have an adverse effect on the free flow of information. 240 The problem with this rationale is that it does not explain why the rule applies only at the interlocutory stage of a defamation action and not at the trial itself. 234 235

236 237

238 239 240

West Australian Newspapers Ltd v Bond (2009) 40 WAR 164 at 184-5. In West Australian Newspapers Ltd v Bond (2009) 40 WAR 164 it was suggested that the special circumstances qualification is the more general qualification to the rule, and that the “necessary in the interests of justice” example is the prime example of this general qualification: at 183. John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346 at 358. John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346 at 351. For a more in depth discussion of the justifications see M Darian-Smith and M Hayes, “The Newspaper Rule: An Analysis” (1989) 63(6) Law Institute Journal 470; Kerrisk v The North Queensland Newspaper Co Ltd [1992] 2 Qd R 398. John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346 at 352. Attorney-General v Mulholland [1963] 2 QB 477 at 490 per Denning MR; British Steel Corporation v Granada Television Ltd [1981] AC 1096 at 1110. Adam v Fisher (1914) 30 TLR 288.

506 [7.580]

Chapter 7 – Confidentiality and Sources of Information

The most plausible and authoritative rationale for the existence of the rule is the special position occupied by media organisations, in terms of their responsibility and liability for the material they publish, and the desirability of protecting those who contribute to their news stories from the consequences of unnecessary disclosure of their identities. 241 This explanation recognises the special role played by the media in facilitating the free flow of information to the public, and thus provides a logical reason as to why the rule extends only to media organisations. It also explains why it applies only at the interlocutory stage of a defamation action, namely, because disclosure of the identity of the source is generally unnecessary at that stage of the proceedings if the media organisation accepts responsibility for what it publishes. 242

Pre-trial discovery orders Procedures for pre-trial discovery [7.590] There is an equitable procedure for discovery which enables a victim of wrongdoing by an unknown wrongdoer to apply to a court for an order directing a person to disclose the identity of the wrongdoer. The wrongdoing may consist of a tort, a breach of contract or some other type of legal wrong. It is clear that the person against whom such an order is made need not be guilty of wrongdoing. 243 However, it is necessary that that person, albeit innocently and without incurring any personal liability, has participated in, been involved in or facilitated the wrongdoing of the person whose identity the applicant is seeking to establish. 244 A media organisation which publishes information from a source that was wrongfully obtained is relevantly “involved” and thus capable of being subjected to an order for disclosure of the source’s identity. The weight of authority favours the view that it is not essential that the applicant for the pre-trial discovery must intend to commence legal proceedings against the

241 242

McGuinness v Attorney-General (Vic) (1940) 63 CLR 73 at 104-105 per Dixon CJ, cited with approval by the High Court in John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346 at 355. In Bateman v Fairfax Media Publications Pty Ltd [2014] NSWSC 400 McCallum J held that Dixon J’s reference to “newspapers, who accept responsibility for and are liable in respect of the matter contained in their journals” is “not a reference to accepting liability for the defamation”. Rather, the rule allows the editor “the freedom to hide the source behind the editor’s shield only so long as the editor himself was prepared and able to stand in battle”: at [23]. McCallum J proceeded to hold that this principle is put under strain where a media defendant seeks to rely on the defence of honest opinion of a commentator or a stranger, because in so doing the media defendant is actually seeking to deflect responsibility, by “defending the alleged defamation as the comment of the very person whose position the newspaper rule was designed to protect”. In such cases, disclosure of the sources is rendered “necessary” and the defendant may be required to provide these particulars or have the relevant parts of its defence struck out.

243

Ashworth Security Hospital v MGN Ltd [2002] 4 All ER 193 at 195-196, 199-200.

244

Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133; X Ltd v Morgan Grampian (Publishers) Ltd [1991] 1 AC 1; Ashworth Security Hospital v MGN Ltd [2002] 4 All ER 193. Thus a mere onlooker or witness cannot be subjected to an order to disclose the identity of the wrongdoer. A broader approach to the requisite degree of involvement has been taken in recent United Kingdom cases. See, eg: Various Claimants v News Group Newspapers (No 2) [2013] EWHC 2119 (Ch).

[7.590] 507

Australian Media Law

wrongdoer in respect of the allegedly wrongful act. 245 Courts have recognised that there are other ways in which an applicant might seek redress for legal wrongs or seek to protect itself against further wrongdoing. For example, the applicant may wish to discipline the wrongdoer by dismissing him or her from employment. However, in order to prevent the applicant from misusing material that has been disclosed pursuant to a pre-trial discovery order, the applicant must identify the purposes for which the disclosure will be used, and will be restricted to using the material for those purposes. 246 In most Australian jurisdictions, provision for the discovery of the identity of an unknown wrongdoer is now made by the Rules of Court. 247 Unlike the equitable procedure, the Rules usually stipulate or imply that discovery can be compelled only for the purpose of enabling the applicant to commence legal proceedings against the wrongdoer. 248 To obtain an order the applicant must generally demonstrate that, despite making reasonable inquiries, he or she was unable to ascertain the description of the wrongdoer sufficiently for the purpose of commencing a proceeding in the court against him or her, that some other person has knowledge of facts or possession of documents which would assist in identifying the wrongdoer and that that person will not disclose those facts or documents unless ordered to do so by the court. 249 If these threshold requirements are satisfied, the court may, in its discretion, order that person to attend and be orally examined or produce documents relating to the identity of the wrongdoer.

Application of the procedure to source identification [7.600] When a media organisation publishes material provided to it by an unnamed source and a person regards the publication of that material as constituting an actionable wrong – usually, but not necessarily, a defamation or a breach of confidence – the person may seek to 245

246 247

248

249

Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133 at 188; British Steel Corporation v Granada Television Ltd [1981] AC 1096 at 1174; X Ltd v Morgan Grampian (Publishers) Ltd [1991] 1 AC 1; Ashworth Security Hospital v MGN Ltd [2002] 4 All ER 193; Rugby Football Union v Consolidated Information Services Ltd [2012] 1 WLR 3333 at [15]. Ashworth Security Hospital v MGN Ltd [2002] 4 All ER 193 at 210. Federal Court Rules 2011, r 7.22 (see also B Kremer and R Davies, “Preliminary Discovery in the Federal Court: Order 15A of the Federal Court Rules” (2004) 24 Australian Bar Review 235); Court Procedures Rules 2006 (ACT), r 650; Uniform Civil Procedure Rules 2005 (NSW), Pt 5 r 5(2); Supreme Court Rules (NT), r 32.03; Supreme Court Civil Rules 2006 (SA), r 32; Supreme Court Rules 2000 (Tas), r 403C; Supreme Court of Victoria (General Civil Procedure) Rules 2005, r 32.03; Rules of the Supreme Court 1971 (WA), O 26A r 3. In Queensland, no express provision is made in the rules of court for pre-trial discovery to identify a wrongdoer (although see Uniform Civil Procedure Rules 1999 (Qld), r 229). The intention to sue need not, however, be “immutably fixed or unqualified” and is not a condition precedent to the exercise of the court’s discretion to compel discovery but rather, a factor to be taken into account: Liu v The Age Company Ltd [2012] NSWSC 12 at [71]. Indeed, where the procedure is deployed to compel disclosure of the identity of a source it may not be appropriate for the plaintiff to sue the source: the source may be an innocent disseminator, have a credible defence or have insufficient funds to meet a verdict. Nevertheless, an application for preliminary discovery that is brought with no intention of commencing proceedings against the source or for a purpose other than commencing proceedings is liable to be dismissed as an abuse of process: Liu v The Age Company Ltd [2012] NSWSC 12 at [77]. These matters are discussed and applied to factual scenarios in Nagle v Chulov [2001] NSWSC 9 and NRMA v John Fairfax [2002] NSWSC 563 and Liu v The Age Company Ltd [2012] NSWSC 12.

508 [7.600]

Chapter 7 – Confidentiality and Sources of Information

utilise the pre-trial discovery procedure to compel the journalist or a media organisation to disclose the identity of the source of the defamatory imputations or confidential information so that legal action can be commenced against him or her. In order to succeed in an application for pre-trial discovery under the Rules of Court, the applicant must satisfy the threshold requirements outlined above. This requires the applicant to disclose to the court the substance of the inquiries that have been made to identify the source and to demonstrate that these inquiries have not identified the source sufficiently to allow the applicant to commence legal proceedings. 250 What is reasonable is a question of fact which must be measured against the cost, delay and uncertainty of taking alternative measures, such as making an FOI application. 251 The inquiry is an objective one and is not determined by a mere belief on the part of the applicant that the inquiries made were reasonable or that an application under the rule is the most convenient means of obtaining the information. 252 If these preliminary hurdles are surmounted, the court’s discretion to order disclosure of the source’s identity is enlivened. However, as is the case with the equitable procedure for pre-trial discovery, 253 the court will generally not order disclosure of the identity of the source unless the applicant can demonstrate that an order compelling disclosure is necessary in the interests of justice. This is the same test that is applied to determine whether the newspaper rule should be overridden. However, it must be borne in mind that the newspaper rule is not the same as the pre-trial discovery procedure and cannot be relied upon as a basis for refusing to grant an order for pre-trial discovery, as the respondent to such an application is not a defendant in a defamation action and the application is not an interlocutory proceeding. 254 Indeed, there is no subsisting action. However, although not capable of applying directly to an application for pre-trial discovery, the policy considerations which underlie the newspaper rule are unquestionably factors to be taken into account in the exercise of judicial discretion in pre-trial discovery applications. 255 If it were otherwise, “the making of orders for preliminary discovery would undermine the status and strength of the rule in its application to defamation actions at the interlocutory stage”. 256 The High Court has held that an order for pre-trial discovery of a source’s identity must be made if this is necessary to provide the applicant with an effective remedy in respect of the 250 251

252 253 254 255 256

The Age Company Ltd v Liu [2013] NSWCA 26 at [52]. Roads & Traffic Authority (NSW) v Australian National Car Parks Pty Ltd [2007] NSWCA 114 at [14]; Liu v The Age Company Ltd [2012] NSWSC 12 at [69]. In Liu v The Age Company Ltd, an important factor in assessing the adequacy of the inquiries made by the plaintiff was the indisputable fact that whatever information was available from other sources, only the defendants knew with certainty the identity of the persons who had provided the material to them. The Age Company Ltd v Liu [2013] NSWCA 26 at [51], [87]. British Steel Corporation v Granada Television Ltd [1981] AC 1096. John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346 at 356. John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346 at 357; Hewitt v Pacific Magazines Pty Ltd [2009] SASC 323 at [19]; Liu v The Age Company Ltd [2011] NSWSC 53 at [27]. John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346 at 357.

[7.600] 509

Australian Media Law

actionable wrong of which he or she complains. 257 This requires the court to make a prospective assessment of the apparent strength of the applicant’s claim against the source: does the applicant have a cause of action against the source sufficient to make it proper to award preliminary discovery of the source’s identity? This will turn on the likely liability of the source for their disclosure or publication of the confidential or defamatory articles to the media organisation and for the media organisation’s re-publication of that information to the wider public. The court must also consider whether the applicant would have an effective remedy against persons other than the source of the information (in this context, the media organisation that published the information). If so, the court will generally refuse to compel the media organisation to identify the source. An applicant will have an effective remedy if the liability of the media organisation is co-extensive with that of the source; that is, if the applicant has the same opportunity to recover adequate monetary compensation from the media organisation as he or she would have from the source. 258 This assessment must be made prospectively. 259 Liability will not be co-extensive if the court considers that the media organisation can raise a defence that may not be available to the source, such as qualified privilege. If the court considers that the media organisation’s defence “might well succeed”, an order for discovery is likely to be made in the interests of justice. 260 It is open to a media organisation which does not want to reveal the identity of its source to relinquish any defence it might otherwise have relied upon, in order to bring about a situation in which its liability is co-extensive with that of the source. It has also been suggested that the liability of a media organisation will not be co-extensive with that of its source if there is cogent evidence before the court that exemplary damages might be available against the source but not the newspaper. 261 Example

John Fairfax & Sons Ltd v Cojuangco [7.610] John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346 On 13 February 1985, The Sydney Morning Herald published an article on corruption in the Philippines which stated that “one of the leading local US banks maintains that of the Philippines” $US26 billion foreign debt, the President and close “cronies” like coconut King Eduardo Cojuangco “… have totally squandered $US9 billion of it”. The sources of the article were referred to as a senior American bank official and prominent 257 258

John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346 at 357. Herald & Weekly Times Ltd v The Guide Dog Owners’ and Friends’ Association [1990] VR 451 at 458. Whether an “effective remedy” is to be considered solely in monetary terms is discussed in T Giannoukos, “The Newspaper Rule” (1991) 65(9) Law Institute Journal 831.

259 260

Liu v The Age Company Ltd [2012] NSWSC 12 at [40]. A defence “might well succeed” if it is likely or probable that it will succeed, in the sense that there is a substantial or real or good chance that it will succeed regardless of whether that chance is less or more than fifty per cent: Application of Cojuangco (No 2) (unreported, NSW Supreme Court, Hunt J, 6 January 1989); Herald & Weekly Times Ltd v The Guide Dog Owners’ and Friends’ Association [1990] VR 451 at 458-459. Herald & Weekly Times Ltd v The Guide Dog Owners’ and Friends’ Association [1990] VR 451 at 460.

261

510 [7.610]

Chapter 7 – Confidentiality and Sources of Information John Fairfax & Sons Ltd v Cojuangco cont. local businessmen. Cojuangco applied for preliminary discovery of the identity of the sources of information under the Rules of the Supreme Court of New South Wales, so that he could bring defamation proceedings against them. John Fairfax & Sons Ltd, the publisher of The Sydney Morning Herald, refused to disclose the identity of the sources without an order for preliminary discovery, on the ground that the information was provided by the sources on condition that their identity would remain confidential. An order compelling disclosure was made by the New South Wales Supreme Court 262 and upheld by the High Court, 263 but was subsequently set aside when the newspaper undertook not to rely on a statutory defence. 264 Other factors that have a bearing on whether the court will exercise its discretion to grant preliminary discovery of the source’s identity is whether the applicant alleges that the source’s information was falsified and whether a journalist, having received documents from a source, ignored a request from the source not to publish them.

Example

Liu v The Age Company Ltd [7.620] Liu v The Age Company Ltd [2012] NSWSC 12 Articles published in The Age in February 2010 alleged that Chinese-Australian businesswoman Helen Liu had made large payments of money to then federal defence minister Joel Fitzgibbon as part of a “campaign to cultivate him as an agent of political and business influence”. 265 The allegations were substantiated with quotes that were said to come from Liu’s personal and business records. Liu asserted that these documents were forgeries or were otherwise falsely attributed to her. She sought to ascertain the identity of the person(s) who had provided them to the newspaper, but the journalists who wrote the articles refused to name their sources, citing their obligation of confidentiality. Ms Liu sought preliminary discovery against their employer, The Age Company Ltd, under r 5.2 of the Uniform Civil Procedure Rules 2005 (NSW) to enable her to obtain the identity of the source for the purpose of suing them in defamation. After deciding that r 5.2 was constitutionally valid and must be applied according to its terms, 266 that Ms Liu had met the threshold requirements of the rule and that qualified privilege defences were open to be pleaded by The Age, had not been relinquished by the newspaper and appeared to be such as “might well succeed” (meaning that Ms Liu may not have an effective remedy against the newspaper),

262

Re Application of Cojuangco (1986) 4 NSWLR 513 per Hunt J; John Fairfax & Sons Ltd v Cojuangco (1987) 8 NSWLR 145 (CA).

263 264

John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346. Application of Cojuangco (No 2) (unreported, NSW Supreme Court, Hunt J, 6 January 1989); Cojuangco v John Fairfax & Sons Ltd (No 2) (1991) Aust Torts Reports 81-068.

265 266

Liu v The Age Company Ltd [2012] NSWSC 12 at [1]. See [7.630].

[7.620] 511

Australian Media Law Liu v The Age Company Ltd cont. McCallum J ordered The Age to give discovery to the plaintiff of all documents in its possession which related to the identity of the source. One of the reasons for Her Honour’s decision was Ms Liu’s allegation that some of the documents may have been forged or falsely attributed to her. While the journalists denied any knowledge of the fraud, it was not possible to make an assessment about the source’s knowledge. Accordingly, McCallum J was unable to form a view as to whether qualified privilege defences, if raised by the source, might succeed. Moreover, if Ms Liu was restricted to suing the newspaper, she would be unable to pursue a remedy that would see the issue of the alleged forgery properly litigated. Her Honour was also influenced by evidence that a source had requested one of the journalists not to publish some of the documents that had been provided. McCallum J regarded the newspaper’s decision to publish under these circumstances as undermining the “very protection sought to be achieved by the practice of not requiring journalists to disclose their sources unless such disclosure is necessary in the interests of justice’”. 267 In Her Honour’s view, the protection of sources is not an end in itself; rather, the rationale for any protection afforded to the source “lies in the public interest in cultivating trust between sources and journalists as a boon to free speech”. The journalist’s decision to defy the source’s wishes in favour of the public interest in the exposure of political corruption breached the source’s trust and substantially lessened the force of the newspaper rule in the circumstances. The decision was upheld on appeal 268 and the High Court refused The Age Company’s application for special leave to appeal. 269 Critics of this aspect of the decision maintain that a journalist’s only obligation to a source is to preserve his or her confidentiality, not to be told by the source what it can and cannot publish. 270

[7.630] If the material in respect of which the applicant seeks the identity of the source can be regarded as “political discussion”, 271 an issue arises as to whether the rule of court permitting pre-trial discovery of the identity of a wrongdoer is compatible with the implied freedom of political communication that was recognised in Lange v Australian Broadcasting Corporation. 272 In Liu v The Age Company Ltd, The Age argued that the pre-trial discovery rule in the Uniform Civil Procedure Rules 2005 (NSW) was rendered inoperative by the implied 267

268 269 270 271 272

In her judgment, McCallum J refers to the courts’ practice of not requiring source disclosure unless it is necessary in the interests of justice as the newspaper rule. Technically, however, the newspaper rule was not in issue, as the case concerned an application for preliminary discovery, but the concession to source protection is the same. The Age Company Ltd v Liu [2013] NSWCA 26. The Age Company Ltd v Liu [2013] HCATrans 205. J Cashin, “The Newspaper Rule – RIP?” Gazette of Law and Journalism, 8 February 2012 For a case which held that the subject matter of the publication in question was not political see: NRMA v John Fairfax Publications Pty Ltd [2002] NSWSC 563. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 as modified in Coleman v Power (2004) 220 CLR 1.

512 [7.630]

Chapter 7 – Confidentiality and Sources of Information

constitutional freedom of political communication because it unduly burdens the implied freedom. The Age submitted that, in order to preserve its validity, r 5.2 must be read down to preclude its application in cases where a plaintiff is seeking preliminary discovery from a journalist of the identity of a confidential source who has provided information that constitutes political communication or that is used in a publication that constitutes political communication. The argument was rejected, both at first instance and on appeal. While the first limb of the Lange test was held to be satisfied – that is, r 5.2 does effectively burden freedom of communication about government or political matters – the rule was held to be reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of government. At first instance, McCallum J was influenced by the fact that the power to order the disclosure of a confidential source is discretionary and will be made pursuant to the rule only when the interests of justice so require. The obligation to consider the policies underlying the newspaper rule in that assessment ensured that the rule was adapted to serving its object in a manner compatible with the implied constitutional freedom. 273 To hold otherwise, and automatically exclude all confidential sources of political information from the reach of preliminary discovery, would be likely to adversely affect the constitutionally prescribed system of government. 274 On appeal, Bathurst CJ held that r 5.2 is “appropriate and adapted …” because it: achieves the objective of protecting persons from false and defamatory statements by unidentified persons when they may otherwise have no redress, having regard to the defence of qualified privilege available to the newspaper journalist or media outlet which transmits the information. 275

An alternative argument – that the newspaper rule should be of absolute effect in protecting the identity of a journalist’s confidential source where the communication involves government or politics – was also rejected. To accede to such an argument would mean that journalists and sources would be protected from disclosure irrespective of whether their conduct was reasonable and whether their sources were unreliable or misleading. As noted above, the High Court refused special leave to appeal. Failure to comply with an order for pre-trial discovery is a contempt of court. Example

David Hellaby [7.640] David Hellaby David Hellaby was a journalist with the Adelaide Advertiser. In 1992 a defamation action was commenced against the Advertiser concerning a series of articles written by Hellaby on the State Bank of South Australia. In an application for pre-trial discovery brought by the bank, Hellaby was ordered by the Supreme Court of South Australia to hand over documents used in preparing articles concerning the Auditor-General’s

273

Liu v The Age Company Ltd [2012] NSWSC 12 at [49].

274

Liu v The Age Company Ltd [2012] NSWSC 12 at [58]-[59]. The Age Company Ltd v Liu [2013] NSWCA 26 at [99].

275

[7.640] 513

Australian Media Law David Hellaby cont. inquiry into the State Bank of South Australia. The bank argued that it needed to know the identity of the source in order to determine whether to sue Hellaby for injurious falsehood. Hellaby refused to hand over any documents that would reveal the identity of his source. The matter was eventually resolved by a confidential agreement between Hellaby and the bank, but Hellaby was fined $5,000 for the period he had been in contempt.

Statutory reform A guided judicial discretion [7.650] In New South Wales an amendment to the Evidence Act 1995 (NSW) in 1997 created a new category of privilege called a “professional confidential relationship privilege”. 276 In 2010, Tasmania enacted legislation in virtually the same terms and the Australian Capital Territory followed suit in 2011. Western Australia enacted similar, but not identical, legislation in 2012. 277 Although not directly expressed to apply to journalists and their sources, the privilege is broad enough to encompass the journalist/source relationship. 278 The professional confidential relationship privilege empowers a court to direct that evidence not be adduced in a proceeding if this would disclose a “protected confidence”, the “contents of a document recording a protected confidence”, or “protected identity information”. A “protected confidence” is a communication made in confidence by one person to another in the course of a relationship in which the recipient of the communication (the confidant) was acting in a professional capacity and was under an express or implied obligation not to disclose its contents. The obligation of non-disclosure need not arise under law, but can be inferred from the nature of the relationship between the recipient and the confider. “Protected identity information” means information concerning the identity of the confider. It is the latter that is most significant in this context, as a source who has provided information to a journalist usually expects it to be published. The court may give a direction that evidence not be adduced either on its own initiative or at the request of the protected confider or confidant. Since it is most likely that a journalist will 276 277

278

The Evidence Amendment (Confidential Communications) Act 1997 (NSW) inserted ss 126A-126F into the Evidence Act 1995 (NSW). Evidence Amendment Act 2010 (Tas) inserted ss 126A-126F into the Evidence Act 2001 (Tas); Evidence Amendment Act 2011 (ACT) inserted ss 126A-126F into the Evidence Act 2011 (ACT) and Evidence and Public Interest Disclosure Legislation Amendment Act 2012 (WA) inserted ss 20A-20F into the Evidence Act 1906 (WA). The Commonwealth enacted similar legislation in 2007 in the Evidence Amendment (Journalists’ Privilege) Act 2007 (Cth) but, unlike the position in New South Wales and Tasmania, the Commonwealth privilege applied only to journalists, not to professional confidential relationships in general. The Commonwealth repealed this legislation in 2011 and replaced it with a presumption of non-disclosure: Evidence Amendment (Journalists’ Privilege) Act 2011 (Cth). NRMA v John Fairfax Publications Pty Ltd [2002] NSWSC 563but see Price (2003) 8 Media and Arts Law Review 259 at 276-277. In Western Australia, a confidant is expressly defined to include a journalist: Evidence Act 1906 (WA), s 20A.

514 [7.650]

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be seeking such a direction from the court, it will usually be the journalist who will bear the onus of convincing the court that it should exercise its discretion in favour of non-disclosure. 279 In making a decision as to whether evidence should be adduced a court must take into account: • the probative value of the evidence and its importance in the proceeding; • the nature and gravity of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; • the availability of any other evidence concerning the matters to which the protected confidence or protected identity information relates; 280 • the likely effect of adducing the evidence, including the likelihood of harm and the nature and extent of harm that would be caused to the confider; • the means available to the court to limit the likely harm that might be caused if the evidence were disclosed (including ordering the evidence to be heard in camera or suppressing publication of the evidence); • if the proceeding is criminal in nature, whether the party seeking to adduce the evidence is the defence or the prosecution; 281 • whether the substance of the protected confidence or protected identity information has already been disclosed; and • the public interest in preserving the confidentiality of protected confidences and protected identity information. A court must direct that such evidence not be adduced if it is satisfied that it is likely that harm would or might be caused to the confider of the information and the nature and extent of the harm outweighs the desirability of the evidence being given. 282 A court must provide reasons for giving or refusing to give a direction under this provision. In Western Australia, a court is not permitted to give a direction that evidence not be adduced in a proceeding for defamation concerning the publication of alleged defamatory matter containing or relying on a protected confidence unless the court is first satisfied that the content of the protected confidence is true. The purpose of this provision is to limit the

279

280 281

282

L Ingham, “Australian Shield Laws for Journalists: A Comparison with New Zealand, the United Kingdom and the United States” (2008), http://www.cla.asn.au/Article/Shield_Laws_InghamL0803.pdf?zoom_highlight= ingham#search=“ingham”. If the source’s identity could have been discovered through other means, it is unlikely that the journalist would have been called to disclose it. This factor is worded differently in Western Australia. In that jurisdiction, courts must take into account the likely effect of the evidence in relation to a prosecution that has commenced but has not been finalised or an investigation (of which the court is aware) into whether or not an offence has been committed. “Harm” is defined to include actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional and psychological harm (such as shame, humiliation and fear).

[7.650] 515

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capacity of a court to disseminate defamatory material by requiring it to be satisfied that the material provided by the source is accurate. 283 The professional confidential relationship privilege is lost if the confider consents to the evidence being adduced. Moreover, the provisions do not prevent the adducing of evidence of a communication made or a document prepared in the furtherance of the commission of a fraud, an offence or an act that renders a person liable to a civil penalty. 284 To the extent that the unauthorised communication of government information by public servants constitutes an offence, this effectively means that the “privilege” is lost. It has been observed that the professional confidential relationship privilege does not differ greatly from the approach at common law. 285 In both cases, courts have a discretion to relieve a journalist from the obligation to reveal a source but in neither case does a journalist have a legal right to do so.

A rebuttable presumption of non-disclosure The introduction of the presumption [7.660] Since 2011, five Australian jurisdictions have introduced legislation which creates a presumption of non-disclosure of source identity, 286 in order to “foster freedom of the press and better access to information for the Australian public”. 287 This default position in favour of source confidentiality affords journalists stronger protection than they enjoy at common law or under the judicial discretion model. 288 The legislation is modelled on the rebuttable presumption of non-disclosure contained in s 68 of the Evidence Act 2006 (NZ). 289 A presumption of non-disclosure also exists in the United Kingdom. 290 The legislation in each Australian jurisdiction is similar but not uniform. It deals with four matters: the nature of the presumption and the circumstances in which it can be rebutted; the 283 284

285 286

287 288 289 290

Explanatory Memorandum to the Evidence and Public Interest Disclosure Amendment Legislation Bill 2011 (WA), s 9. The Western Australian legislation does not use these words. Rather, it uses the word ‘misconduct’ to describe the circumstances in which the privilege can be lost. “Misconduct” is defined to catch a range of behaviour by the confider that is much wider than the commission of an offence, including acting corruptly, misusing information acquired by the confider and conduct that provides reasonable grounds for terminating the confider’s employment or for disciplining the confider for unsatisfactory professional conduct. L McNamara and S McIntosh, “Confidential Sources and the Legal Rights of Journalists: Re-thinking Australian Approaches to Law Reform” (2010) 32(1) Australian Journalism Review 81 at 85. Evidence Act 1995 (Cth), ss 126G, 126H, 131A, 131B; Evidence Act 2011 (ACT), ss 126J-126L, 131A; Evidence Act 1995 (NSW), ss 126J-126L, 131A; Evidence Act 2008 (Vic), ss 126J, 126K, 131A; Evidence Act 1906 (WA), ss 20G-20M. Explanatory Memorandum to the Evidence Amendment (Journalists’ Privilege) Bill 2011 (Cth) [1]. The New Zealand High Court has held that the rebuttable presumption of non-disclosure contained in s 68 Evidence Act 2006 (NZ) has subsumed the newspaper rule: Slater v Blomfield [2014] NZHC 2221. The Evidence Act 2006 (NZ) also creates a general confidential relationship privilege: s 69. Contempt of Court Act 1981 (UK), s 10. This provision, and its relationship to the right to freedom of expression contained in Art 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (as set out in the Human Rights Act 1998 (UK)), has been considered in a number of cases: Secretary of State for Defence v Guardian Newspapers Ltd [1985] AC 339; Goodwin v United Kingdom

516 [7.660]

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courts in which, and the stage at which, the presumption can be raised; whether the presumption can be invoked in bodies other than courts; and who is a journalist for the purposes of the presumption. The nature of the presumption and circumstances in which it can be displaced [7.670] The Commonwealth legislation provides that if a journalist “has promised an informant not to disclose the informant’s identity, neither the journalist nor his or her employer is compellable to answer any question or produce any document that would disclose the identity of the informant or enable that identity to be ascertained”. 291 The same provision has been enacted in the other four jurisdictions in virtually the same terms. 292 The privilege belongs to the journalist and his or her employer, not the source. 293 An informant is defined as a person who gives information to a journalist in the normal course of the journalist’s work in the expectation that the information may be published in a news medium. 294 A news medium is defined as “a medium for the dissemination to the public or a section of the public of news and observations on news”. 295 In Slater v Blomfield, the New Zealand High Court held that a blog could constitute a news medium, observing that: The definition does not impose quality requirements and does not require the dissemination of news to be in a particular format. The focus is on the medium disseminating new or recent information of public interest. 296

In Ashby v Commonwealth of Australia (No 2) Rares J emphasised that these definitions tie the privilege to “the imparting of the particular information given by the informant and to the occasion of that imparting”. 297 The privilege cannot be claimed if the informant has already been identified in the public domain as the source of what a journalist has published or if the

291 292

293

294

295 296 297

(1996) 22 EHRR 123; Saunders v Punch Ltd [1998] 1 WLR 986; Camelot Group plc v Centaur Communications Ltd [1999] QB 124; Ashworth Hospital Authority v MGN Ltd [2001] 1 All ER 991; [2002] UKHL 29; Interbrew SA v Financial Times Ltd [2002] EWCA Civ 274 Mersey Care NHS Trust v Ackroyd (No 2) [2007] EWCA Civ 101. Evidence Act 1995 (Cth), s 126H(1). Evidence Act 2011 (ACT), s 126K(1); Evidence Act 1995 (NSW), s 126K(1); Evidence Act 2008 (Vic), s 126K(1); Evidence Act 1906 (WA), s 20I (the WA provision does not extend the presumption to the journalist’s employer but to “a person for whom the journalist was working at the time of the promise”). Ultrasonic Slimming Pty Ltd v Fairfax Media Publication Pty Ltd [2013] NSWSC 547 at [18]. Whether the journalist exercises the privilege on behalf of the source or as an agent of the public is an interesting question which is discussed in: D Carney, “Truth and the Unnamed Source” (2012) 4(1) Journal of Media Law 117. Evidence Act 1995 (Cth), s 126G(1); Evidence Act 2011 (ACT), s 126J; Evidence Act 1995 (NSW), s 126J; Evidence Act 2008 (Vic), s 126J(1); Evidence Act 1906 (WA), s 20G. The fact that the information must have been imparted to the journalist by the informant in the normal course of the journalist’s work suggests that the journalist cannot rely on the presumption where the information has been gleaned in other contexts, such as social settings. Evidence Act 1995 (Cth), s 126G(1); Evidence Act 2011 (ACT), s 126J; Evidence Act 1995 (NSW), s 126J; Evidence Act 2008 (Vic), s 126J(1); Evidence Act 1906 (WA), s 20G. Slater v Blomfield [2014] NZHC 2221 at [140]. The narrow definition of journalist in some Australian jurisdictions will, however, prevent many bloggers from being able to claim the privilege. Ashby v Commonwealth of Australia (No 2) [2012] FCA 766 at [24].

[7.670] 517

Australian Media Law

source’s identity is able to be ascertained. 298 In light of the “promise based” nature of the privilege, it would not apply where the journalist receives unsolicited information from an unknown source. The protection is not absolute. In each jurisdiction, the court may, on the application of a party, order that the presumption is not to apply, but only if it is satisfied that, “having regard to the issues to be determined in that proceeding”, the public interest in the disclosure of evidence of the informant’s identity outweighs two factors: • any likely adverse effect of the disclosure on the informant or any other person; 299 and • the public interest in the communication of facts and opinion to the public by the news media 300 and, accordingly also, in the ability of the news media to access sources of facts. 301 The onus is on the party seeking disclosure to lead evidence to rebut the presumption that the source need not be revealed. 302 An order that the presumption is not to apply may be made subject to such terms and conditions as the court thinks fit. This might include a suppression order that prohibits the name of the source from being published. The Western Australian legislation differs from the legislation in the other four jurisdictions in that it applies many of the provisions that appear in the judicial discretion model to the presumption of non-disclosure model. For example, in deciding whether to direct a journalist to give identifying evidence, a person acting judicially 303 must have regard to the same factors to which regard must be had in the judicial discretion model. 304 Moreover, the presumption of non-disclosure does not prevent the giving or adducing of identifying evidence with the informant’s consent. 305 A person acting judicially who finds that there was misconduct on the part of the journalist or the informant in relation to obtaining, using, giving or receiving information may, but is not bound to, give a direction that identifying evidence be given. 306 298 299 300 301

302 303 304 305 306

Ashby v Commonwealth of Australia (No 2) [2012] FCA 766 at [33]. Nor can the privilege be claimed if the information sought from a journalist would not lead to the disclosure of the identity of the source. Presumably the reference to “any other person” includes the journalist. This consideration will be particularly relevant where the information provided by the source turns out to be false. Evidence Act 1995 (Cth), s 126H(2); Evidence Act 2011 (ACT), s 126K(2); Evidence Act 2008 (Vic), s 126K(2); Evidence Act 1906 (WA), s 20J(2). The latter consideration recognises that “if an order is made that the information be disclosed, this may make it more difficult for journalists to access sensitive information from sources in the future, as they may not trust that their identity will remain confidential and may therefore be reluctant to provide the information”: Explanatory Memorandum to the Evidence Amendment (Journalists’ Privilege) Bill 2011 (Cth). See Police v Campbell [2010] 1 NZLR 483, where the High Court of New Zealand undertook this balancing exercise in respect of similar legislation in a case involving the theft of medals from an army museum. If Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290 is any indication, the public interest in ordering disclosure will have to be very strong in order to displace the presumption. The Western Australian legislation uses this phrase instead of “court”. Evidence Act 1906 (WA) s 20J(3). Evidence Act 1906 (WA) s 20L. Evidence Act 1906 (WA) s 20K(2). Misconduct is widely defined: s 20K(1). The person acting judicially must also have regard to six principles which, if satisfied, generally require a direction to be given in circumstances

518 [7.670]

Chapter 7 – Confidentiality and Sources of Information

In which courts, and at what stage in a proceeding, can the presumption be raised [7.680] The Evidence Act in each jurisdiction except Western Australia is expressed to apply to all proceedings in all courts in that jurisdiction, including proceedings that relate to bail, interlocutory proceedings, proceedings heard in chambers or proceedings that relate to sentencing (the latter with some qualifications). 307 The Evidence Act 1995 (Cth) goes further and extends its provisions to all proceedings in any other Australian court for an offence against a Commonwealth law, that is, to all prosecutions for Commonwealth offences whether heard in a Commonwealth, State or Territory court. A court is defined to include particular courts in the jurisdiction (such as the High Court, the Supreme Court and any other court created by that parliament, as the case may be), but also any person or body (other than a court) that, in exercising a function under the law of the State, “is required to apply the laws of evidence”. Information is often seized by police at the investigatory stage pursuant to search warrants, search and seizure powers and/or interception powers. On several occasions police have used these powers to raid newsrooms and journalists’ homes and to monitor journalists’ phones or bank records looking for the source of information that has been imparted to a journalist and published. 308 If the identity of a source could be obtained at the investigatory stage via these processes, the protection afforded by the presumption of non-disclosure would be easily circumvented. To avoid this result, except in Western Australia, the presumption of non-disclosure is not confined to the trial stage of a proceeding, but extends to court processes and court orders that operate at the pre-trial stage, including a summons or subpoena to produce documents or give evidence; pre-trial discovery; non-party discovery; interrogatories, a notice to produce and, in Victoria, a search warrant. 309 These are

307

308

309

of misconduct: s 20K(3). For example, a direction to disclose should ordinarily be given if the information could have been obtained by the journalist under FOI provisions or if the communication made to the journalist would, if published, give rise to a risk to national or State security. Evidence Act 1995 (Cth), s 4; Evidence Act 2011 (ACT), s 4; Evidence Act 1995 (NSW), s 4; Evidence Act 2008 (Vic), s 4. The Western Australia Evidence Act 1906 (WA) applies to every legal proceeding, which is defined to include “any action, trial, inquiry, cause or matter, whether civil or criminal, in which evidence is or may be given and includes an arbitration”: s 4. For example, in 2008, the offices of The Sunday Times newspaper in Western Australia were raided by police who were attempting to find the identity of a source who had leaked information to the paper’s journalist, Paul Lampathakis, regarding a government decision to use taxpayers’ money to fund an advertising campaign in the lead up to an election. Also in 2008, the home of The Canberra Times reporter Philip Dorling was raided by federal police seeking to identify the source of a leak inside the Defence Intelligence Organisation regarding revelations that China, North Korea, South Korea and Japan were priority targets for Australian intelligence. In 2011, the Sydney Morning Herald published an article asserting certain misconduct within the NSW Crime Commission over the seizure of criminals’ assets. The NSW Crime Commission subpoenaed the newspaper and two of its reporters to produce documents regarding their contact with the Police Integrity Commission (PIC), plus their mobile phones and SIM cards, in an attempt to unearth the source of a suspected leak in the PIC, which was investigating the Crime Commission. Ultimately, the demands were not pressed. Evidence Act 1995 (Cth), s 131A; Evidence Act 2011 (ACT), s 131A; Evidence Act 1995 (NSW), s 131A; Evidence Act 2008 (Vic), s 131A. See Ashby v Commonwealth of Australia (No 2) [2012] FCA 766 at [4]-[7] (journalist must prove that the requirements of s 126H have been met; a mere claim to the protection afforded by s 131A is not sufficient). Western Australia lacks a provision in similar terms to s 131A. The reasons for this omission are unknown. Various explanations have been proffered: Hancock Prospecting Pty Ltd v

[7.680] 519

Australian Media Law

collectively referred to as “disclosure requirements”. If a person is required by a disclosure requirement to give information or produce a document which would result in the disclosure of a source and the person objects to giving that information or providing that document, the court must determine the objection by applying the presumption of non-disclosure, with any necessary modifications, as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence. Invoking the presumption in bodies other than courts [7.690] As explained above, the definition of “court” includes any person or body (other than a court) that, in exercising a function under the law of the State, “is required to apply the laws of evidence”. Accordingly, the statutory presumption of non-disclosure can be claimed in respect of any body that fits this description. However, some jurisdictions do not entitle a journalist to rely on the presumption of non-disclosure before certain bodies. In Victoria, for example, the operation of the presumption of non-disclosure is excluded under the Independent Broad-based Anti-corruption Commission Act 2011 (Vic), the Major Crime (Investigative Powers) Act 2004 (Vic), the Ombudsman Act 1973 (Vic), the Police Integrity Act 2008 (Vic), the Victorian Inspectorate Act 2011 (Vic) and the Whistleblowers Protection Act 2001 (Vic). This cuts back the benefit of the presumption considerably. 310

Definition of a journalist [7.700] The protection afforded by the presumption of non-disclosure can be claimed only by persons who meet the definition of “journalist”. Defining who is a journalist has proven to be one of the most controversial aspects of the legislation. In the Commonwealth and Australian Capital Territory, a journalist is defined broadly as “a person who is engaged and active in the publication of news and who may be given information by an informant in the expectation that the information may be published in a news medium”. This definition is said to: Broaden the definition of a journalist from the traditional, where someone works for a newspaper, radio, television station or newswire, to include those who work in what we call the new media–for example, those who blog, Tweet or who use Facebook or YouTube to publish news. They too are engaged and active in the publication of news and they too will sometimes be given information by an informant on the condition of anonymity. They too deserve protection. 311

310 311

Hancock [2013] WASC 290 at [170]. However, even though its presumption of non-disclosure does not apply directly in these circumstances, in Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290 it was relied on to support an argument that subpoenas requiring the production of documents to an arbitrator in an arbitration were an oppressive abuse of process on the basis that they undermined the shield laws. This argument was accepted by Pritchard J, one reason being that the impact of the subpoena on West Australian Newspapers Ltd “having regard to the legislative landscape that now prevails following the enactment of the Shield Laws, cannot be ignored”: at [172]. The decision was regarded as a significant win for journalists. It is discussed in M Douglas, “A Broad Reading of WA’s Shield Laws” (2013) 18 Media and Arts Law Review 377. Media Entertainment and Arts Alliance, Secrecy and Surveillance: The Report into the State of Press Freedom in Australia in 2014 (2014) 30. Commonwealth, Parliamentary Debates, House of Representatives, 21 March 2011, pp 2393-2394 (Andrew Wilkie). See also: Sara Phung, “Function Not Form: Protecting Sources of Bloggers” (2012) 17 Media and Arts Law Review 121.

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This definition was opposed by the then Federal Coalition Opposition on the basis that it breaks the nexus between the privilege and the work of a journalist and accords protection to anyone who wants to publish “anything anywhere that might be considered to be news”. 312 A narrower definition was adopted in New South Wales, Victoria and Western Australia. In those jurisdictions a journalist is defined as “a person engaged in the profession or occupation of journalism in connection with the publication of information (and, in Victoria, comment, opinion or analysis) in a news medium”. 313 In Victoria, the legislation lists a number of indicative factors to which a court must have regard when determining whether a person is engaged in the profession or occupation of journalism. They are: whether a significant proportion of the person’s professional activity involves the practice of collecting and preparing information having the character of news or current affairs or commenting or providing opinion on or analysis of news or current affairs for dissemination in a news medium; whether the news or current affairs information, etc is regularly published in a news medium; and whether the person or the publisher of the information, comment, opinion or analysis is accountable to comply (through a complaints process) with recognised journalistic or media professional standards or codes of practice.

312 313

Commonwealth, Parliamentary Debates, Senate 3 March 2011, p 1097 (George Brandis). Evidence Act 1995 (NSW), s 126J; Evidence Act 2008 (Vic), s 126J(1); Evidence Act 1906 (WA), s 20G. The word “engaged” is broader than the word “employed”, as it can also mean “occupied”: Explanatory Memorandum to the Evidence Amendment (Journalist Privilege) Bill (Vic) 3.

[7.700] 521

Privacy

8

[8.10] INTRODUCTION ...................................................................................... 524 [8.20] PRIVACY OF INFORMATION .................................................................... 525 [8.20] Previous regime ........................................................................................ 525 [8.30] [8.40] [8.50] [8.60] [8.70]

Australian Privacy Principles ............................................... Journalism exemption ....................................................... Remedies .......................................................................... States and Territories ......................................................... Relationship with common law .........................................

526 526 528 529 529

[8.80] PRIVACY OF COMMUNICATIONS .......................................................... 529 [8.90] Telephone conversations ......................................................................... 530 [8.90] [8.120] [8.130] [8.140]

Prohibition ........................................................................ Communication of information obtained .......................... Exceptions ......................................................................... Penalties and civil remedies ...............................................

530 532 532 533

[8.150] Other conversations .............................................................................. 533 [8.160] [8.370]

Listening devices legislation: Australian Capital Territory, Queensland, South Australia, Tasmania ............... 533 Surveillance devices: New South Wales, Northern Territory, Western Australia, Victoria ................................... 546

[8.440] PERSONAL PRIVACY ............................................................................... 552 [8.450] Protection of personal privacy in other countries .............................. 553 [8.460] [8.510] [8.600]

United States ..................................................................... 553 England ............................................................................. 556 New Zealand ..................................................................... 564

[8.630] Current protection of personal privacy in Australia ............................ 570 [8.640] [8.930] [8.990]

Intrusion cases ................................................................... 570 Disclosure cases ................................................................. 585 Other cases ....................................................................... 591

[8.1000] A possible shape of things to come in Australia ............................... 592 [8.1010] [8.1060] [8.1070] [8.1100] [8.1130] [8.1160]

Common law .................................................................... Statutory cause of action ................................................... Australian Law Reform Commission Report 123 (2014) ..... New South Wales Law Reform Commission Report 120 (2008) ............................................................ Victorian Law Reform Commission Report 18 (2010) ......... Endnote ............................................................................

593 605 605 609 611 612

[8.1170] Statutory offence for breach of personal privacy ............................. 613 [8.1180] Self regulation ...................................................................................... 614 [8.1180] [8.1190]

Codes of Practice ............................................................... 614 Press Council ..................................................................... 616

523

Australian Media Law

Introduction [8.10] An individual’s right to privacy has been recognised at an international level, although no attempt to define or describe the concept is made. 1 It is a concept that means different things to different people. The Australian Law Reform Commission has suggested in the past that privacy concerned: Material which so closely pertains to a person to his innermost thoughts, actions and relationships that he may legitimately claim the prerogative of deciding whether, with whom and under what circumstances he will share it. 2

The media are often the focus of concerns regarding the invasion of privacy. As two commentators once wrote in what proved to be an important article: The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery … the intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury. 3

For some, these words may appear as apt today as they seem to have been when they were written over 125 years ago. There may be a tendency for the media to look upon privacy as antithetic to freedom of the press. 4 Competing interests such as free speech, the public’s “right to know” and the “public interest” are frequently asserted as a justification for breach of privacy. However, it can be argued that both free speech and privacy support a system of private rights and thereby serve the same goal of sustaining democracy. 5 Further, the so-called “right to know” lacks specific definition and sound philosophical foundation, and the “public interest” concept has variable meaning and significance. 6 Whatever its precise meaning, “privacy” has been used as an umbrella term that may embrace within its ambit matters of privacy of information, privacy of communications and personal privacy. 7 In Australia, the first and second of these areas are afforded protection by statute. However, in relation to the third area, a patchwork of different laws, both common law and statute, has long been relied upon to provide redress in particular circumstances without the prospect of complete protection for all aspects of personal privacy. 8 The inadequacy of 1 2 3

See Universal Declaration of Human Rights 1948, Art 12; International Covenant on Civil and Political Rights 1966, Art 17; European Convention on Human Rights, Art 8. ALRC, Unfair Publication: Defamation and Privacy, Report No 11 (1979), p 109. SB Warren and LD Brandeis, “A right to privacy” (1890) 4 Harv L Rev 193 at 196.

4 5 6

P Chadwick and J Mullaly, Privacy and the Media (1997), p 17. R Wacks, Privacy and Press Freedom (1995), p 22. Chadwick and Mullaly (1997), pp 14-21.

7

Chadwick and Mullaly (1997), p 11, the different aspects are conceptualised as a series of zones radiating outwards from the individual: privacy of the body; privacy of personal space and place; freedom from eavesdropping, surveillance and spying; and information privacy. See also B Markesinis, “Our patchy law of privacy – Time to do something about it” (1990) 53 Mod LR 802.

8

524 [8.10]

Chapter 8 – Privacy

such a piecemeal approach, viewed in the context of the increased potential for invasion of privacy by advances in technology, has prompted the question whether a generalised tort protecting personal privacy should be recognised. The question has been considered by a number of law reform commission inquiries both at Commonwealth 9 and State 10 levels. Two common law approaches have emerged: to develop existing causes of action, such as breach of confidence, to protect privacy interests (as has occurred in England) or to recognise a new tort or torts providing redress for invasion of privacy (as has occurred in New Zealand). 11 A frequently expressed concern about the second option is that it would require the resolution of substantial definitional problems. 12 However, as the New South Wales Law Reform Commission has pointed out, to suggest that it is impossible to protect privacy for that reason alone would be to succumb to “the perennial fallacy that because something cannot be cut and dried or lightly weighed or measured therefore it does not exist.” 13 A third option, recommended by two Law Reform Commissions, is the enactment of a statutory cause of action to protect privacy. 14 In addition to whatever protection may be offered by the law, an individual may have an avenue for complaint for invasion of his or her privacy through industry-based complaints procedures.

Privacy of information 15 Previous regime [8.20] Australia was a signatory to the International Covenant on Civil and Political Rights, which requires contracting states to ensure that their domestic legal systems provide adequate protection against interference with privacy. The Federal Government gave effect to its obligations by enacting the Privacy Act 1988 (Cth), which establishes the office of Privacy Commissioner, and provides a code for the protection of privacy of information which originally consisted of 11 Information Privacy Principles (IPPs). These principles constituted standards with respect to the collection, storage and use of “personal information”, that is information or opinion, whether true or false, about an individual whose identity is apparent or can

9

10

11

Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice Report 108 (2008) (ALRC Report 108), Australian Law Reform Commission, Serious Invasions of Privacy in a Digital Era Report 123 (2014) (ALRC Report 123). New South Wales Law Reform Commission, Invasion of Privacy Report 120 (2009) (NSWLRC Report 120); Victorian Law Reform Commission, Surveillance in Public Places, Report 18 (2010). At the time of writing an inquiry was also being conducted in South Australia: South Australian Law Reform Institute, Too Much Information: A Statutory Cause of Action for Invasion of Privacy, Issues Paper 4 (2013). See also Giller v Procopets (2008) 24 VR 1 at [448]-[449].

12 13

See, for example, Giller v Procopets (2008) 24 VR 1 at [167] per Ashley J. Ridge v Baldwin [1964] AC 40 at 64-65 (per Lord Reid) cited in New South Wales Law Reform Commission, Invasion of Privacy (NSWLRC 120) at [4.16].

14 15

ALRC Report 108; ALRC Report 123; NSWLRC Report 120. See generally G Tucker, Information Privacy Law in Australia (1992).

[8.20] 525

Australian Media Law

reasonably be ascertained from the information or opinion. 16 The IPPs applied to both Federal and ACT Government Departments and agencies and the credit reporting industry. Subsequently, concerns were expressed concerning the fact that those organisations were not the only ones who collected private information. Consequently, the Howard Federal Government enacted the Privacy Amendment Act 2000 (Cth), which provided for a code of ten National Privacy Principles (NPPs), derived from the IPPs and designed to govern the privacy of personal information held by private organisations. Unfortunately, however, while covering many of the same issues as the IPPs, the NPPs adopted different numbering and were in some respects inconsistent with the IPPs. This caused problems, particularly for Government contractors and business enterprises like Australia Post which were subject to both regimes. 17

Australian Privacy Principles [8.30] Following a recommendation by the ALRC, 18 the Commonwealth government sought to address the inconsistencies between the IPPs and NPPs in the Privacy Act 1988 (Cth) by replacing both with a new set of principles, called the Australian Privacy Principles (APPs), which apply equally to Commonwealth and ACT government agencies and private organisations 19 with the exception of small business organisations with a turnover of $3 million or less. 20 These principles came into effect on 12 March 2014. The APPs are enacted as Sch 1 of the Privacy Act 1988 (Cth). They govern how agencies and organisations deal with “personal information”, that is information or opinion, whether true or false, about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion. 21 They apply to (inter alia) the collection of personal information and sensitive information (APP 3); dealing with unsolicited personal information (APP 4); use or disclosure of personal information (APP 6); and security of, access to and correction of personal information (APP 11-13). The APPs are subject to a number of exemptions, including the employee records exemption, the political exemption (for “planning, fundraising, advertising strategy and policy deliberation”) 22 and most importantly for present purposes, a journalism exemption.

Journalism exemption [8.40] The media are in the business of collecting personal information. Arguably the obligations imposed in the NPPs and the APPs that followed them could have a detrimental effect on media activities, with adverse consequences for the free flow of information to the 16 17 18

See Privacy Act 1988 (Cth), s 6(1). Australian Law Reform Commission, Review of Australian Privacy Law, DP 72 (2007), [15.68]. Australian Law Reform Commission, Review of Australian Privacy Law, Report 108 (2008), [18.86] and Recommendation 18-2.

19 20 21 22

Privacy Amendment (Enhancing Privacy Protection) Bill 2012 (Cth). Privacy Act 1988 (Cth), s 6(1) (definition of “APP entity”), s 6D (definition of “small business”). Privacy Act 1988 (Cth), s 6(1). Canadian Press, Tory Database Draws Ire of Privacy Experts for Including Constituency Files, CTV (online), www.ctv.ca.

526 [8.30]

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public. This was acknowledged by the inclusion of an exemption for the acts and practices of media organisations carried out “in the course of journalism”. 23 A “media organisation” is an organisation whose activities consist of or include collecting, preparing, or disseminating to the public (a) news, current affairs, information or documentaries, or (b) commentary or opinion on or analysis of such material. 24 It seems that “journalism” has its everyday meaning and is not dependent on the technology used. To avail itself of the exemption, the media organisation must be able to show that it is publicly committed to observe standards which deal with privacy in the context of the activities of a media organisation and which have been published in writing by the organisation or a person or body representing a class of media organisations. For example, a media organisation might show that it is a member of an industry body that requires its members to observe a code of ethics that deals with privacy exclusively or among other things. 25 Such a wide exemption was not the only possible response to the problem. For example, in New Zealand there is an express limitation to “news activities”, 26 while in England journalists are exempt from data protection principles (except for those related to security of data) where the information is processed with a view to publication of journalistic, literary or artistic material, and there is a reasonable belief that publication would be in the public interest and that compliance would be incompatible with the purposes of journalism. 27 Nevertheless, it may still be possible for particular acts or practices to fall outside the terms of the wide exemption, such as media acts or practices that use personal information but which are deemed not connected with journalism. The ALRC had recommended that the exemption for journalistic acts and practices be retained since it represented an important balance between the public interest and freedom of expression and the public interest in adequately safeguarding the handling of personal information. 28 However, the ALRC had also noted that the lack of a definition of the term “journalism” together with the wide definition of the term “media organisation” effectively allowed anyone to claim the exemption by setting up a publishing enterprise. 29 Accordingly, it recommended that “journalism” be defined as meaning the collection, preparation of the dissemination or dissemination of the following material for the purpose of making it available to the public: • material having the character of news, current affairs for a documentary; • material consisting of commentary or opinion on, or analysis of, news, current affairs or a documentary; or 23

See Privacy Act 1988 (Cth), s 7B(4).

24 25

See Privacy Act 1988 (Cth), s 6. See [8.1180].

26 27

Privacy Act 1993 (NZ), s 2(1). Data Protection Act 1998 (UK), s 32(1).

28 29

ALRC Report 108, [42.3]. ALRC Report 108, [42.26].

[8.40] 527

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• material in respect of which the public interest in disclosure outweighed the public interest in maintaining the level of privacy protection afforded by the APPs. 30 The ALRC recognised that the definition focused on the character of the relevant publication rather than the manner in which the information is disseminated. Thus while it would embrace traditional journalism in the character of news, current affairs and documentaries and commentaries on these materials, the exemption could also extend to cases where the material was disseminated through a different medium such as in a blog or in the course of an advertisement. 31 In view of this definition, the Commission recommended simplifying the definition of “media organisation” to mean “an organisation whose activities consist of or include journalism”. 32 This would ensure that the exemption would cover both traditional and evolving categories of media publication. 33 The ALRC’s recommendation was not addressed in the first stage of the Government’s response, 34 and the journalism exemption continues in its existing form.

Remedies [8.50] The Australian Privacy Commissioner has jurisdiction under the Act to investigate complaints by individuals regarding an act or practice that may have interfered with privacy. The Commissioner may make determinations, including declarations that an individual is entitled to redress, such as the award of monetary compensation. 35 However, the Commissioner may decide not to investigate in certain circumstances, including, where in the opinion of the Commissioner (rather than the complainant), the respondent has adequately dealt with the matter. 36

30 31

ALRC Report 108 Recommendation 42-1. ALRC Report 108, [42.41].

32 33

ALRC Report 108 Recommendation 42-2. ALRC Report 108, [42.50].

34

Australian Government, First Stage Response to the Australian Law Reform Commission Report 108, October 2009 http://www.alrc.gov.au/sites/default/files/pdfs/government_1st_stage_response.pdf.

35 36

See Privacy Act 1988 (Cth), s 52. See Privacy Act 1988 (Cth), s 41(2)(a).

528 [8.50]

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States and Territories [8.60] Many States have enacted complementary legislation to extend the IPPs to personal information held by the State’s public sector. 37 The ACT has enacted legislation that adopts the APPs. 38 In each case Privacy Commissioners are empowered to investigate and resolve complaints.

Relationship with common law [8.70] The High Court has recognised as a general principle of confidentiality law, at least in relation to information compulsorily collected by governments, that personal information which is collected for one purpose should not be used for any other purpose without consent, statutory authority or other exceptional circumstances. 39 This general law right may be stronger than that contained in the privacy principles, to which a number of exceptions may apply. This may have ramifications for the sharing of personal information between, for example, government agencies. 40

Privacy of communications [8.80] The ability to covertly listen to, record or film conversations can be an essential aspect of investigative journalism. Indeed, without it there may be no other means of gathering or presenting certain information of great public interest or significance. Such listening to, recording or publication is, however, regulated by statute at both Commonwealth 41 and State/Territory levels. 42 This legislation affords a measure of protection for what might be termed privacy of communication, 43 while seeking to strike a balance with freedom of action and speech. 44 The different legislation applies to the listening or recording of different forms of communication. The Telecommunications (Interception and Access) Act 1979 (Cth) (the 37

38 39 40 41 42

43 44

See Privacy and Personal Information Protection Act 1998 (NSW); Information Act (NT); Information Privacy Act 2009 (Qld); Privacy Data and Protection Act 2014 (Vic). Tasmania has enacted ten Personal Information Protection Principles (PIPPs): Personal Information Protection Act 2004 (Tas). South Australia only has administrative procedures in place that are based on, or are similar to, the former Federal IPPs: Department of Premier and Cabinet (SA), Cabinet Administrative Instruction 1/89, 5 August 2013. Western Australia also does not currently have a legislative privacy regime. The Information Privacy Bill 2007 (WA) was introduced into the WA Parliament in March 2007. If passed it would have enacted a set of Information Privacy Principles. Since then there has been legislative inertia regarding the issue. Information Privacy Act 2014 (ACT). Johns v Australian Securities Commission (1993) 178 CLR 408. G Greenleaf, “High Court confirms privacy right against governments” (1994) 1 PLPR 1. Telecommunications (Interception) Act 1979 (Cth). Listening Devices Act 1992 (ACT); Surveillance Devices Act 2007 (NSW); Invasion of Privacy Act 1971 (Qld); Listening and Surveillance Devices Act 1972 (SA); Listening Devices Act 1991 (Tas); Surveillance Devices Act 1998 (WA); Surveillance Devices Act 1999 (Vic); Surveillance Devices Act (NT). Queensland has also prohibited visual recordings where there is a reasonable expectation of privacy: see Criminal Code 1899 (Qld), s 227A(1). See [8.1110]. R v Edelsten (1990) 21 NSWLR 542 at 549; Green v The Queen (1996) 124 FLR 423; R v Evans (1999) 152 FLR 352 at 363. R v Workman (2004) 60 NSWLR 471 at 475.

[8.80] 529

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Interception Act) 45 applies to communications using telecommunications while State/Territory Listening Devices Act or Surveillance Devices Acts apply more generally. It has been held that the Commonwealth Interception Act evinces a clear intention to be the whole law on the matter of telephonic interception. Accordingly, the Commonwealth Interception Act applies to telecommunications interception to the exclusion of all State and Territory Acts concerning the listening to or recording of conversations. 46 However, if there is no relevant interception there is nothing upon which the Commonwealth Interception Act can operate, and the State/Territory Acts may apply. In other words, it is possible for a court to find that there was no breach of the Commonwealth Interception Act, but that there was nevertheless a breach of the relevant State/Territory Listening Devices Acts or Surveillance Devices Acts. 47

Telephone conversations Prohibition [8.90] Section 7(1) prohibits the interception of a communication passing over a telecommunication system. The subsection also makes it unlawful to authorise, suffer or permit another person to intercept, or to do any act or thing that will enable a person to intercept such a communication. For the purposes of the Act, “interception of a communication passing over a telecommunication system” is defined as consisting of four elements: • listening to or recording, by any means; • a communication; • in its passage over a telecommunications system; and • without the knowledge of the person making the communication. 48 While “listen to” is not defined by the Act, “record” means a record or copy, whether in writing or otherwise, of the whole or part of the communication. 49 “Communication” may be in the form of speech, music or other sounds, data, text, visual images, signals or a combination of these forms. 50 It would seem, therefore, that email may qualify as a relevant communication. The prohibition only applies to interceptions during the passage of communications over a system run by means of guided or unguided electromagnetic energy. The prohibition will cover direct tapping into the telecommunications system as well as other interceptions before the communication is transformed from an electromagnetic into an audible form. 45

46 47

The name of this Act was changed from the Telecommunications (Interception) Act 1979 in 2006 as part of a raft of anti-terrorism legislation. As the name change suggests, these amendments focus on giving greater access to telecommunications by law enforcements agencies such as ASIO, and to this extent do not concern the media. For this reason the short form reference to Interception Act has been chosen. Miller v Miller (1978) 141 CLR 269 at 276; Edelsten v Investigating Committee of New South Wales (1986) 7 NSWLR 222 at 230.

48

Edelsten v Investigating Committee of New South Wales (1986) 7 NSWLR 222 at 226; T v Medical Board of South Australia (1992) 164 LSJS 430 at 448. See Telecommunications (Interception and Access) Act 1979 (Cth), s 6(1).

49 50

See Telecommunications (Interception and Access) Act 1979 (Cth), s 5. See Telecommunications (Interception and Access) Act 1979 (Cth), s 5.

530 [8.90]

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Example

R v Migliorini [8.100] R v Migliorini (1981) 53 FLR 221 The accused telephoned Mr Hill and demanded payment of $20,000 or harm would be caused to him or members of his family. Prior to the call Mr Hill had alerted the police. They affixed a suction cup to the hand set of the telephone which was then connected to a tape recorder. This enabled the telephone conversation between the accused and Mr Hill to be recorded. In the Supreme Court of Tasmania it was held that at the time of its interception, the communication was still in electromagnetic form in its passage over the telecommunication system. The communication had not yet been converted into audible sound. Accordingly, the recording breached the Telecommunications (Interception) Act 1979 (Cth) (as it then was).

[8.110] By contrast, it has been held that the Interception Act is not breached by an interception after the communication has been transformed into audible speech, for example, by recording a telephone conversation by means of placing a tape recorder beside the telephone receiver. 51 Similarly, it has been held that a “logger tape” of a radio talk-back program recorded by a tape recording device forming part of the studio equipment of the radio station was a recording of the radio waves of a public broadcast transmitted and received. It was not a recording of a communication in its passage over the telecommunication system. 52 The question in such cases, therefore, will be whether in the circumstances a State or Territory Listening Devices Act or Surveillance Devices Act has been breached. The definition of a telecommunications service as being a service for carrying communications by means of guided or unguided electromagnetic energy or both, expressly excludes communication solely by means of radio communication. This definition may be significant in relation to communications involving mobile phones. These devices work by converting speech or data into electromagnetic energy which is then used to transmit a radio signal to a base station. There the signal is converted into electric energy and is transmitted through ordinary telephone lines to a telephone which converts it back into speech or data. Accordingly, where a radio scanner is locked on to the frequency of the radio signal and used to listen to and/or record communications involving a mobile telephone, there is an interception of electromagnetic impulses or signals making up the communication which are radiating through the air and, therefore, a breach of the Interception Act. 53 There may be cause for doubt, however, where the conversation involves a mobile telephone on each end. If this communication utilises the system of electromagnetic impulses 51

R v Oliver (1984) 57 ALR 543 at 548 (NSW); T v Medical Board of South Australia (1992) 164 LSJS 430; R v Workman (2004) 60 NSWLR 471; Chao v Chao [2008] NSWSC 584 at [6]; WK v The Queen (2011) 33 VR 516 at [6]; cf R v Curran & Torney [1983] 2 VR 133.

52 53

Clyne v Bowman (1986) 11 NSWLR 341 at 346. Edelsten v Investigating Committee of New South Wales (1986) 7 NSWLR 222 at 227.

[8.110] 531

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and base stations, it would seem that there would still be a relevant interception and, therefore, a breach of the Act. However, if the communication utilises technology in the form of satellite links there may be grounds for arguing that the communication is solely by means of radio communication and therefore falls outside the scope of the Act. 54 The definition of “telecommunication system” would seem wide enough to include all networks irrespective of whether they are within any part of a carrier’s network, or even connected to a carrier’s network, such as a Local Area Network (LAN). “Connected” equipment will be part of such a network, including any servers that store email, modems and arguably even a user’s personal computer. This may have wide ramifications. For example, there may be a question whether the Interception Act would be breached by the monitoring or recording of any aspect of employees’ or clients’ email, whether as sent or received, or by the monitoring or recording the caches of pages browsed by any identifiable individuals, whether on a user’s PC or on any intermediate server. It may be that such interceptions may attract a defence under the Act such as consent of the persons making the conversation, or where the listening or recording uses equipment that is part of the system. The problem is that such defences are based on outmoded notions of communications. For example, in the case of asynchronous email, http requests and replies and similar internet facilities, there may be difficulty deciding who is “making” the communication at any given time.

Communication of information obtained [8.120] The prohibition against unlawful interceptions of telephone communications is supported by the prohibition in s 63 of the Interception Act against, the communication to another person, the making use of, or making a record of, any information obtained by the interception. This ban on dealings with intercepted information would prevent not only publication of unlawfully intercepted information to the public but even, for example, a journalist who unlawfully obtained intercepted information from sharing that information with his or her editor, executive producer or colleague. 55 Further, the prohibition does not require that the person attempting to make use of the information be the person who was responsible for the interception. Accordingly, s 63 will apply where transcripts of an interception by Federal Police come into the possession of a media defendant. 56

Exceptions [8.130] There are exceptions to the prohibition on interception. These include anything done by an employee of a carrier in the course of his or her duties relating to installation, connection or maintenance of equipment or a line; interceptions resulting from action by an ASIO officer pursuant to a warrant; and interceptions by an officer of a Commonwealth agency 54 55

56

See also A Collier, “When does unauthorised listening become interception” (1994) Law Institute Journal 59 at 61. However, the information may be communicated to a court for the purposes of seeking relief against a newspaper attempting to publish the information: John Fairfax Publications Pty Ltd v Doe (1995) 130 ALR 488. John Fairfax Publications Pty Ltd v Doe (1995) 130 ALR 488.

532 [8.120]

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or eligible State authority in cases where there is a reasonable suspicion of actual or threatened serious personal injury or property damage and the circumstances are so urgent it is not practicable to obtain a warrant. 57 These exceptions are of little or no benefit to the media.

Penalties and civil remedies [8.140] Any person who contravenes the prohibition on interception or on dealings with information obtained by interception commits an indictable offence which is punishable by a fine and/or imprisonment. 58 Further, the court has power to grant to an “aggrieved person” such relief as the court considers appropriate. An “aggrieved person” must be a party to the relevant intercepted communication, while the defendant must be the person who contravenes a prohibition on interception, that is, intercepted or authorised or enabled an interception. 59 A party to any intercepted communication may therefore be able to obtain an injunction preventing dealings with information obtained from the interception. 60 Apart from the penalties and civil remedies available under the Act, a person contravening the Act may be liable by reason of that conduct on other grounds, such as for breach of confidentiality or invasion of privacy.

Other conversations [8.150] The Australian Capital Territory, Queensland, South Australia and Tasmania have enacted Listening Devices Acts 61 that govern the use of listening devices to listen to or record private conversations other than telephone conversations. The other jurisdictions have given greater recognition to developments in technology by replacing their Listening Devices Acts with Surveillance Devices legislation, which now cover, inter alia, video devices. 62 Unfortunately, however, there is no uniformity with different prohibitions and exceptions applying in different jurisdictions

Listening devices legislation: Australian Capital Territory, Queensland, South Australia, Tasmania [8.160] The Listening Devices Acts in Tasmania and the Australian Capital Territory are essentially the same but differences exist in Queensland and South Australia. 57 58

See s 7(2) – (5). Telecommunications (Interception and Access) Act 1979 (Cth), s 105.

59 60 61

Section 107A. See John Fairfax Publications Pty Ltd v Doe (1995) 130 ALR 488. Listening Devices Act 1992 (ACT); Invasion of Privacy Act 1971 (Qld); Listening and Surveillance Devices Act 1972 (SA); Listening Devices Act 1991 (Tas). Surveillance Devices Act 2007 (NSW); Surveillance Devices Act 1998 (WA); Surveillance Devices Act 1999 (Vic); Surveillance Devices Act (NT). Although the South Australia statute is the Listening and Surveillance Devices Act 1972 (SA) the surveillance devices provisions only relate to the use of a device pursuant to a warrant.

62

[8.160] 533

Australian Media Law

Private conversations [8.170] The prohibitions in these statutes relate to listening or recording a “private conversation”. “Private conversation” is defined variously as a conversation, or words spoken by one person to another person or persons, in circumstances that may reasonably be taken to indicate that any party to the conversation desires it to be listened to only by the parties to the conversation themselves, 63 or by the parties themselves and by some other person who has the express or implied consent of all the parties to the conversation to do so. 64 “Conversation” is not further defined in any of the legislation. It has been held that, according to the definition provided in the Macquarie dictionary, while the term should not be given a restricted meaning, for the purposes of the Act the communications should have the characteristics of a conversation that includes a degree of informality in the exchange of thoughts. 65 The word would therefore not apply to, for example, proceedings of a committee. Example

Alliance Craton Explorer Pty Ltd v Quasar Resources Ltd [8.180] Alliance Craton Explorer Pty Ltd v Quasar Resources Ltd [2010] SASC 266 Two companies, Alliance and Quasar, entered into a joint venture agreement in respect of an exploration licence in regional South Australia. At a series of management committee meetings representatives from Alliance sought to tape record the proceedings. While partial recording was allowed for one meeting and Quasar again allowed the following meeting to be recorded it objected to any further meetings being recorded. The chairman proposed a vote as to whether recordings should be allowed, which he treated as having passed when Quasar voted in support and Alliance objected to voting. When Alliance attempted to record the following meeting the chairman indicated that it was contrary to prior rulings and the meetings was closed. Sulan J of the Supreme Court of South Australia held that proceedings at a management committee meeting were an entirely different character to a “private conversation”. They had a commercial character and purpose, with each party to the joint-venture being a body corporate that acted through representatives who have a duty to report to the corporation. Meetings have formal written agendas upon which the parties exchange positions orally and in writing, including the provision of reports. The parties sought to reach decisions affecting the legal rights and duties of the parties to the joint-venture. A formal record was kept at the meeting and there was a formality about the conduct of the meetings. Accordingly, statements made in positions taken by those entitled to speak at the meeting could not be said to be conversations within the ordinary meaning of the word. A conversation may be “private” even if the participants are at liberty to tell others about it later: “private” in the Act does not mean secret or confidential but rather “not 63

SA: s 3.

64

ACT: s 2; Qld: s 4; Tas: s 3(1). Alliance Craton Explorer Pty Ltd v Quasar Resources Ltd [2010] SASC 266 at [31].

65

534 [8.170]

Chapter 8 – Privacy Alliance Craton Explorer Pty Ltd v Quasar Resources Ltd cont. public”. 66 Thus, for example, a telephone conversation with a friend is a private conversation even though the friend may be at liberty to later tell another person about it. By contrast, a telephone conversation on talkback radio is not a private conversation. 67

[8.190] The Queensland legislation expressly excludes a conversation made in circumstances in which the parties to the conversation ought reasonably to expect that the conversation may be overheard, recorded, monitored or listened to by some other person. 68 This exclusion would seem to be implicit in the shorter definition adopted by other jurisdictions. Accordingly, a conversation held, for example, on a public street or footpath, or in a shopping centre is unlikely to be considered a private conversation. However, it has been held that an open door to a room in which a conversation is held, which may have enabled the conversation to have been heard if a person was walking past the door and listening, does not cause the conversation to cease to be a private one. 69 Naturally, a person will be a “party” to a conversation where he or she is a person by or to whom words are spoken in the course of the conversation. Legislation in some jurisdictions extends the meaning of “party” to also include a person who, with the express or implied consent of any of the persons by or to whom words are spoken in the course of the conversation, records or listens to those words. 70 It is implicit in such definitions that a conversation must consist of words being exchanged between persons capable of speaking and listening. A corporation does not have this capacity. Accordingly, a media organisation, as opposed to its individual employees such as journalists and producers, is not susceptible to being charged with any offences that require proof of the fact that it was party to a private conversation. 71 It has also been suggested that merely because an employee is party to a private conversation is insufficient to make the employer a party to it. 72 This may be based on a refusal to attach criminal liability to a person in the absence of a guilty mind. Criminal law regards a person as responsible for his or her own crimes only. 73

66 67 68

Thomas v Nash [2010] SASC 153 at [37]. Thomas v Nash [2010] SASC 153 at [37]. Qld: s 4.

69 70

Miller v TCN Channel Nine (1988) 36 A Crim R 92 at 106 (NSW Supreme Court). ACT: s 2; Qld: s 42; Tas: s 3(1).

71

Director of Public Prosecutions (NSW) v Fordham (2010) 202 A Crim R 254; [2010] NSWSC 795 at [91], [94].

72

Miller v TCN Channel Nine (1988) 36 A Crim R 92 at 108. Cf Director of Public Prosecutions (NSW) v Fordham (2010) 202 A Crim R 254; [2010] NSWSC 795 at [101] where Fullerton J declined to state a concluded view on the point. Tesco Supermarkets Ltd v Nattrass [1972] AC 153 at 179 (Lord Morris), 199 (Lord Diplock).

73

[8.190] 535

Australian Media Law

Example

Miller v TCN Channel Nine [8.200] Miller v TCN Channel Nine (1988) 36 A Crim R 92 The Willesee current affairs television program wished to do a story on a talent scout agency which was alleged to be engaging in borderline fraudulent activity. In the course of compiling the story, a researcher visited the agency pretending to be a genuine applicant for employment as a model and recorded a conversation by means of a concealed microphone while a sound recordist sat outside operating the necessary sound equipment. Finlay J of the Supreme Court of New South Wales held that the researcher was clearly a party to a private conversation. However, the producers of the program were not a party simply because their employee was a party. 74

Journalist as a party to conversation Use of device [8.210] Prohibition. South Australia, Tasmania and the Australian Capital Territory, but not Queensland, prohibit the use of a listening device to record a conversation by a party to the conversation. 75 This prohibition would apply to conduct including a person entering into a conversation “wired for sound” 76 or recording a conversation on a pocket tape recorder, as well as situations where the other party to the conversation is aware that it is being recorded such as a “walk in” with a camera rolling while the subject is barraged with questions. However, specific evidence of personal use is required, as distinct from participating in a conversation that is known to be recorded. 77 Example

Director of Public Prosecutions (NSW) v Fordham [8.220] Director of Public Prosecutions (NSW) v Fordham (2010) 202 A Crim R 254; [2010] NSWSC 795 The A Current Affair program broadcasted a story concerning arrangements for the kidnapping, torture and murder of a male escort by a contract killer engaged by a former city mayor. The story featured a secretly recorded conversation referred to as the “car

74

75

The sound recordist was not prosecuted even though he seems to have satisfied the extended definition in the then New South Wales Listening Devices Act 1984 because his role only became evident in the course of the defence evidence and was therefore not proved by the prosecution evidence in chief. He, therefore, had no case to answer: (1988) 36 A Crim R 92 at 95. ACT: s 4(1); SA: s 4; TAS: s 5(1).

76 77

See, for example, Miller v TCN Channel Nine (1988) 36 A Crim R 92. Director of Public Prosecutions (NSW) v Fordham (2010) 202 A Crim R 254; [2010] NSWSC 795 at [52].

536 [8.200]

Chapter 8 – Privacy Director of Public Prosecutions (NSW) v Fordham cont. conversation”) in which Fordham, a reporter on the program, masqueraded as a contract killer who was introduced to the former mayor by his nephew. This conversation included negotiations about the methods to be adopted by Fordham to fulfil the terms of the contract. It was held that the failure by the prosecution to lead evidence of the specific device that had been used to record the conversation in the car, or any evidence from a technician about the use or installation of the device meant that Fordham was not guilty of the “use” of a listening device. It was not sufficient that he was merely aware that the car conversation was being recorded, given that he was present when the nephew was being fitted with a listening device and knew that the car had been installed with audio equipment (and likely actively participated in the arrangements to enable that to occur). In view of the criminal standard of proof required, no inference could be drawn from the simple fact that Fordham could be heard more clearly on the recording than the former mayor because that could be reasonably explained by the fact that they spoke with different levels of articulation or elocution.

[8.230] Exceptions. Exceptions are provided to the prohibition of the use of a device, including recording pursuant to a warrant and consent. However, it has been held that such consent must be an informed one, obtained in advance and not procured after the recording has been made. 78 Example

Miller v TCN Channel Nine [8.240] Miller v TCN Channel Nine (1988) 36 A Crim R 92 A researcher with the Willesee current affairs television program was “wired for sound” with a hidden microphone to record a conversation she had with a director of a talent scout agency, which was alleged to have engaged in fraudulent activities. Prior to attending the agency’s premises, the researcher was schooled by the reporter compiling the story, Mike Munro, in relation to the words she should use in the conversation. In particular, she rehearsed the following words, to be spoken at the end of the conversation, devised by Munro with the intention of trying to legitimise the use of the recording in any broadcast: “our conversation has been recorded for the purpose of broadcast. I am a researcher for the Michael Willesee program. We have had numerous complaints about you. I suggest you talk to our reporter Michael Munro”. This formula was deliberately chosen to avoid a direct question since it was thought that the director would be unlikely to agree to the broadcast of a secretly recorded conversation. When the words were used at the end of the conversation, the director responded “OK, sure, fine”.

78

Miller v TCN Channel Nine (1988) 36 A Crim R 92 at 105.

[8.240] 537

Australian Media Law Miller v TCN Channel Nine cont. It was held that the formula used could not ratify the use of a listening device to record the private conversation. The offence was completed once there had been a simultaneous listening to, or recording by, a listening device of the private conversation to which the researcher was a party. Any so-called subsequent consent could in practice make prosecution less likely or be to the defendant’s benefit on penalty but it did not make the offence, the commission of which had already been completed, cease to be an offence.

[8.250] In the case of a minor, who may be expected to be unable to give informed consent, it may be sufficient to obtain the consent of the child’s parent or guardian. 79 Further, these jurisdictions provide for an exception from the prohibition where the principal party to the conversation consents to the use of a listening device and the recording is reasonably necessary for the protection of the lawful interest of that party. 80 The test is objective and requires evidence of a lawful interest existing at the time of the recording. 81 In South Australia the exception applies where a party to a conversation uses a listening device to overhear, record, monitor or listen to the conversation in the course of duty of that person, in the public interest or for the protection of the lawful interest of that person. 82 There are other exceptions but these are of no application to the media. The protection of a lawful interest of a party to the conversation might include making the record in circumstances where the party is concerned that the truth may not be spoken by another party to the conversation, or in circumstances where some allegation may be made against the party using the listening device. However, it is clear that a court must be satisfied that the claim to the exception must be bone fide and not artificial. 83 This might include a situation where a journalist is in fear of being sued, for example for defamation, and/or branded a liar and wishes to have a means of later establishing the veracity of his or her version of the story. 84 Communication of content of conversation [8.260] Prohibition. While Queensland does not prohibit the recording of a private conversation by a party to the conversation, it joins only the Australian Capital Territory, South Australia and Tasmania in prohibiting the knowing communication or publication of the 79 80

81 82 83 84

Director of Public Prosecutions v Nakhla [2006] NSWSC 781 at [27]. ACT: s 4(3)(b); Tas: s 5(3)(b). See, for example, Chao v Chao [2008] NSWSC 584 at [8] (at the time of the conversation a serious dispute had erupted between the defendant and the plaintiff and it was highly contentious who was going to be believed as to the different versions of the arrangements made between them in respect of certain premises). Marsden v Amalgamated Television Services Pty Ltd [2000] NSWSC 465; Violi v Berridale Orchards Ltd (2000) 99 FCR 580; [2000] FCA 797; Director of Public Prosecutions v Nakhla [2006] NSWSC 781. SA: s 7(1). Miller v TCN Channel Nine (1988) 36 A Crim R 92 at 106. R v Le (2004) 60 NSWLR 108 at 125; cf T v Medical Board of South Australia (1992) 164 LSJS 430 at 440, 472.

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substance or meaning, or report of a private conversation, by parties to the conversation. 85 The word “communicate” in this sense has its dictionary meaning, namely to impart, to infer, transmit and especially to impart information or to inform a person of something. 86 This means that in all jurisdictions, a journalist cannot communicate or publish anything that may have been recorded, or a summary of what was recorded, to not only the public but even, for example, to his or her editor, executive producer or other colleague. [8.270] Exceptions. The exceptions to the prohibition of communication in the legislation in the various jurisdictions share some common concepts, but are not uniform. In Tasmania and the Australian Capital Territory, communication or publication of a private conversation is permitted (as it is relevant to the media) where it is: • to another party to the conversation; • with the express or implied consent of all of the parties to the conversation; • made in the course of legal proceedings; • not more than is reasonably necessary for the protection of the lawful interests of the person making the communication or publication; or • made to a person reasonably believed to have an interest in the private conversation so as to make the communication or publication reasonable under the circumstances. 87 The Queensland exceptions are similar, although the fourth item on the list is more expansive. In that State the exceptions are where the communication or publication is: • to another party to the conversation; • with the express or implied consent of all of the parties to the conversation; • made in the course of legal proceedings; • no more than is reasonably necessary (1) in the public interest; or (2) in the performance of a duty of the person making the communication or publication; or (3) for the protection of the lawful interests of that person; or • made to a person reasonably believed to have an interest in the private conversation so as to make the communication or publication reasonable under the circumstances. 88 The South Australian exceptions are also similar but expressed differently, being where the communication or publication is: • to a person who was a party to the conversation; • with the consent of each party to the conversation; • in the course of duty or in the public interest; • as reasonably required for the protection of that person’s lawful interests; or 85 86

ACT: s 6(1); Qld: s 45(1); SA: s 5; Tas: s 9(1). Miller v TCN Channel Nine (1988) 36 A Crim R 92.

87 88

ACT: s 5(2); Tas: s 10(2). Qld: s 45(2).

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• if the information or material has been taken or received in public as evidence in a relevant proceeding. 89 It seems, therefore, that all jurisdictions will permit communication or publication of the substance or meaning of, or information or material from, a private conversation where the parties to the conversation consent, either expressly or impliedly. It is clear that such consent must be obtained in advance. It will not be sufficient, for example, to obtain an acquiescence or assent of the other party once the conversation has been recorded, with or without the other party’s subsequent participation in an interview concerning the substance of the conversation. 90 Queensland and South Australia permit communications or publications that in the course of duty or, in the public interest. It may be difficult for the media to rely on the option relating to communication or publication in the course of duty. It may be more likely to be able to rely on the communication or publication being in the public interest. In this connection, there would seem to be no reason why a different meaning would be accorded to “public interest” as is applicable in defamation. 91 All jurisdictions provide an exception where it is “reasonably necessary for the protection of lawful interest”. 92 It would seem from the authorities that the meaning of “lawful interests” does not fall for precise definition and that the term may be left best to be applied on a case-by-case basis. A mere desire to have an accurate record of the conversation is not sufficient to constitute a “lawful interest”. 93 By contrast, where the conversation relates to a serious crime or resisting such an allegation, the court may be more likely to find a recording of the conversation was made in the protection of the person’s “lawful interests”. 94 The desire of a witness to protect her credibility generally, to support her credibility if she had to give evidence in a court proceeding about a particular matter and to protect herself against exposure to being charged with making false allegations against other people about matters of considerable seriousness has been held to be a “lawful interest”. 95 The exception was held to apply where a serious dispute had arisen and it was anticipated that there would be different versions of an arrangement would be claimed by the parties in dispute, 96 and where a complainant’s recording of graphic threats, belittlement and sounds of forced sex while the complainant was crying was held to be in the complainant’s lawful interest in defending herself against “extreme levels of harm and danger”. 97 89 90

SA: s 7(3). Cf Miller v TCN Channel Nine (1988) 36 A Crim R 92 at 105.

91 92

See, for example, [3.1160]. The South Australian provision refers to “reasonably required”: see SA: s 7(3).

93 94 95

Thomas v Nash [2010] SASC 153 at [48]; Alliance Craton Explorer Pty Ltd v Quasar Resources Ltd [2010] SASC 266 at [48]. Thomas v Nash [2010] SASC 153 at [48]. R v Le (2004) 60 NSWLR 108 at [83].

96 97

Chao v Chao [2008] NSWSC 584 at [8]. R v Coutts [2013] SADC 50 at [26].

540 [8.270]

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Reasonable necessity is to be judged objectively upon grounds that exist at the time of the recording. 98 Further, it is sufficient if the recording of the conversation be reasonably appropriate, rather than essential, for the protection of the lawful interests of the recording party. 99 However, there have been different views expressed concerning when a recording will be “reasonably necessary”. It had been suggested by a majority of the New South Wales Criminal Court of Appeal in relation to a similar exception in that state’s previous Listening Devices Act that the question should not be whether it was reasonably necessary for a person to record a conversation but should instead, for example, have reported the matter to the police but rather whether, having decided to do so, it was reasonably necessary to record that conversation for the reasons relied upon, such as to support credibility against accusations of lying. 100 However, the Court subsequently reconsidered the issue in Sepulveda v The Queen 101 and reached a contrary view. It was said that it was important that a construction of the legislation should not be adopted that would serve to undermine, in a significant respect, a primary purpose of the legislation which was to protect privacy by prohibiting the covert recording of conversations other than, usually, by way of a warrant under the statute. 102 Where, therefore, a 29-year-old male recorded a conversation in which general admissions were made by the accused of sexual behaviour and relationships the complainant when he was aged 9-14 years old and his brothers, purportedly for the protection of the complainant’s lawful interests and to “get justice for everyone” it was held that the exception did not apply since it was open for the complainant to have instead gone directly to the police. The recording was not “reasonably necessary”. 103 Nevertheless, Sepulveda v The Queen 104 was later distinguished by the same court in DW v The Queen, 105 a case where a 14 year old girl made a recording that was reasonably necessary for the protection of the law in protecting herself from being indecently assaulted and photographed by her father for the purposes of child pornography. The fact that she had her own mobile phone did not mean that, as a 14-year-old, she should be expected to have understood the legal avenues that she could take in order to have her complaints investigated such as contacting the Department of Community Services or the police. Unlike Sepulveda, which had concerned a recording by an adult some years after the alleged assaults, this case involved a child who made the recording while the assaults were ongoing and prior to any investigation by the police of allegations of sexual misconduct by her father. The complainant was frightened of her father, with whom she 98

Sepulveda v The Queen [2006] NSWCCA 379 at [117], [139].

99 100

Sepulveda v The Queen [2006] NSWCCA 379 at [117], [139]. R v Le (2004) 60 NSWLR 108 at [83] (Channel 9 employee helped a defendant to use a concealed microphone to record a conversation in which another person confessed to murder – the recording was held to be reasonably necessary to protect defendant’s lawful interests, whether or not she was also serving Channel 9’s interests, and it was not material that she could have instead reported the matter to police). Sepulveda v The Queen [2006] NSWCCA 379. Sepulveda v The Queen [2006] NSWCCA 379 at [142]. Sepulveda v The Queen [2006] NSWCCA 379 at [144].

101 102 103 104 105

Sepulveda v The Queen [2006] NSWCCA 379. DW v The Queen [2014] NSWCCA 28. This case actually involved the Surveillance Devices Act 2007 (NSW), which replaced the Listening Devices Act 1984 (NSW). The defence of protection of lawful interests appears in both statutes.

[8.270] 541

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was living, as a result of his abuse and exploitation of her and the only other adult in the house has been convinced by the father that she was lying. Tasmania and the Australian Capital Territory permit publication to a person reasonably believed to have an interest in the communication so as to make the communication or publication reasonable. 106 The exception as drafted bears some similarity to the qualified privileged defence provided in the old Queensland and Tasmanian defamation Codes which applied prior to adoption of the uniform defamation legislation. 107 It was held that due to the wording of these sections the traditional common law requirement of reciprocity, requiring every reader or listener to have the requisite interest in the publication, was not required for the Code defence. 108 There may be good grounds, therefore, for arguing that reciprocity is not an essential requirement of the exception to the prohibition on communication or publication of a private conversation contained in the Listening Devices Acts in Tasmania and the Australian Capital Territory. An important limitation of the Listening Devices legislation is that the various prohibitions on recording private conversations and communicating or publishing the content of private conversations do not extend to videotaping of filming such conversations where the sound is neither recorded nor broadcast. This therefore means that, for example, the media may use hidden cameras without sound with impunity. It may be possible to argue, however, that this position has recently been changed, at least in some cases, in Queensland. 109

Journalist as a third party to conversation Use of device [8.280] Prohibition. The Australian Capital Territory, Queensland, South Australia and Tasmania all prohibit the use of a listening device to listen to or record a private conversation to which the person is not a party. 110 This prohibition would contemplate conduct such as secretly planting a bug or listening device on premises to record the conversation between other persons. In Tasmania the offence is widened to also catch those who “cause” a listening device to be so used. 111 In order to be guilty of “causing” the use of a listening device, a person must be in a position of dominance and control so as to be able to decide whether the act should be done or not, and it must be established that he or she gave some order, command, direction or authority to the person actually doing the act. 112 106

109

Sepulveda v The Queen [2006] NSWCCA 379 at [138]-[139]. This exception is also permitted in Queensland but is accompanied by the more broadly stated exception referring to performance of duty, public interest or protection of lawful interest: see s 45(2). Defamation Act 1889 (Qld), s 16(1); Defamation Act 1957 (Tas), s 16(1). Musgrave v Commonwealth (1937) 57 CLR 514 at 548; Calwell v Ipec Australia Ltd (1975) 135 CLR 321 at 330. See [8.1170].

110 111

ACT: s 4; Qld: s 43; SA: s 4; Tas: s 5. See Tas: s 5(1).

112

O’Sullivan v Truth and Sportman Ltd (1957) 96 CLR 220 at 228.

107 108

542 [8.280]

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Example

Director of Public Prosecutions (NSW) v Fordham [8.290] Director of Public Prosecutions (NSW) v Fordham (2010) 202 A Crim R 254; [2010] NSWSC 795 The A Current Affair program broadcasted a story concerning arrangements for the kidnapping, torture and murder of a male escort by a contract killer engaged by a former city mayor. The story featured a secretly recorded conversation in which Fordham, a reporter on the program, masqueraded as the contract killer who was introduced to the former mayor by his nephew, who acted as an agent provocateur. This conversation was recorded by means of an audio device installed in the car in which the conversation took place and a second audio device that had been fitted on the nephew’s body. Byrne, the A Current Affair producer who worked on the story, was guilty of having “caused” the use of a listening device contrary to the then Listening Devices Act 1984 (NSW). While there was no clear evidence regarding the installation of the audio device in the car, the technicians who supplied the device and who fitted it to the nephew’s body did so on Byrne’s authority and in exercise of the authority vested in him as a producer of the show to direct it to be done.

[8.300] By contrast, a journalist who simply collaborates with the use of a listening device will not be regarded as having “caused” its use. Example

Miller v TCN Channel Nine [8.310] Miller v TCN Channel Nine (1988) 36 A Crim R 92 A researcher with the Willesee current affairs program wore a hidden microphone when posing as an applicant for employment to obtain information for a story on a talent scout agency being compiled by one of the program’s reporters, Mike Munro. Munro collaborated with the use of the listening device, even to schooling his fellow employee as to what she should say in the conversation. It was held that Munro was not in a position to control the person who actually used the device, nor in fact exercised that control. Instead, he merely participated in a common design, both the researcher and him acting in obedience to the common employer, the program’s production company. Accordingly, Munro was not criminally liable for “causing” a listening device to be used. However, the use of the listening device was clearly at the instigation of Transmedia, the program’s production company, and it was therefore guilty of “causing” a listening device to be used.

[8.320] Exceptions. All four jurisdictions provide for exceptions to the prohibition of use of a device. Generally, these relate to the use of a listening device pursuant a warrant or

[8.320] 543

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authority, 113 or an unintentional hearing of a private conversation by means of a listening device. 114 In South Australia, the prohibition also does not apply where those involved in the conversation expressly or impliedly consent to the recording. 115 Any such consent, however, must be obtained in advance of the use of the listening device, rather than being subsequently obtained. 116 Communication of content of conversation [8.330] Prohibition. As in the case of a journalist or other person being a party to the conversation, all four jurisdictions support the prohibition against the use of listening devices to listen to or record a conversation between other persons with some kind of prohibition against the knowing communication or publication of the conversation or any information or material derived from the unlawful use of a listening device. 117 Like before, the word “communicate” in this sense has its dictionary meaning, namely to impart, to infer, transmit and especially to impart information or to inform a person of something. 118 This prohibition is apt to catch not only a journalist but also others associated with the story. In an appropriate case it may also extend to production companies and other media organisations. Example

Director of Public Prosecutions (NSW) v Fordham [8.340] Director of Public Prosecutions (NSW) v Fordham (2010) 202 A Crim R 254; [2010] NSWSC 795 The A Current Affair program broadcasted a story concerning arrangements for the kidnapping, torture and murder of a male escort by a contract killer engaged by a former city mayor. The story featured a secretly recorded conversation (the “car conversation”) in which Fordham, a reporter on the program, masqueraded as a contract killer who was introduced to the former mayor by his nephew. This conversation included negotiations about the methods to be adopted by Fordham to fulfil the terms of the contract. The excerpts of the conversation that were broadcast were accompanied by subtitles. The story also included Byrne, a producer for the program, who was shown listening to an earlier conversation recorded on a mobile phone (the “mobile phone conversation”) by the nephew. Fordham questioned Byrne about the conversation, which he said involved the former mayor and his nephew discussing plans in which the escort would be lured to

113

Although the grant of a warrant or authority to use a listening device does not imply a power to effect an otherwise tortious entry to install such devices: Coco v The Queen (1994) 179 CLR 427 at 439-441, 447, preferring the dissenting judgments of Stevens J (with whom Brennan and Marshall JJ concurred) in Dalia v United States 441 US 238 (1979) and Dickson J in Re Application for an Authorization (1984) 14 DLR (4th) 546 to a like effect.

114 115 116

See ACT: s 4(2); NSW: s 5(2); Qld: s 43(2); SA: ss 4, 6; Tas: s 5(2). SA: s 4. Miller v TCN Channel Nine (1988) 36 A Crim R 92 at 105.

117 118

ACT: s 6(1); Qld: s 44(1); SA: s 5; Tas: s 9(1). Miller v TCN Channel Nine (1988) 36 A Crim R 92.

544 [8.330]

Chapter 8 – Privacy Director of Public Prosecutions (NSW) v Fordham cont. a remote location and there tortured and had serious sexual violence inflicted upon him, with death the likely outcome. A brief excerpt of that conversation was then broadcast. In addition, the story featured an interview with the nephew by Fordham in which he explained that he recorded both conversations to publicly expose his uncle and to explain that while he took money in return for making the necessary arrangements to lure the escort, he had no intention to carry out his uncle’s wishes. It was held that although the reporter Fordham did not recite the words of the private conversation between the former mayor and his nephew, it was by his questioning of Byrne that the mobile phone conversation was both spoken about and its content was described, albeit by Byrne. In view of the breadth of the concept of communication, Byrne was guilty of communicating a report of both conversations. By producing for broadcast over the Nine Network the segments concerning the former mayor, he participated with Fordham in communicating to viewers a report of the mobile phone conversation. By making arrangements for the car conversation to be secretly recorded and, as a senior producer of the program, by supervising or participating in styling the content of the segments that went to air, he communicated a report of the conversation to not only other persons in the network but also members of the viewing public. It was not necessary to show that he had actually authorised or had the responsibility of authorising the broadcast. Fordham was similarly guilty of being a party to communicating a report of a private conversation. However, whilst acknowledging that in an appropriate case a company may be found guilty of knowingly communicating a private conversation by taking an active part in transmitting the program to the public, in this case the prosecution had failed to prove on the criminal standard that TCN Nine had knowingly communicated the private conversation in breach of the Act. There was no evidence as to the corporate structure of TCN Nine, the identity of its directors or executive officers and the role, if any, they might have had in deciding upon, or being consulted upon, the form and content of A Current Affair.

[8.350] A company may be found to have the necessary mens rea where, for example, the company is the producer of the program, with the executive producer being the embodiment of the company. 119 [8.360] Exceptions. The Queensland, South Australian, Tasmanian and the Australian Capital Territory legislation all provide that no offence is committed where the communication or publication is: • to a person who was party to the conversation; • with the express or implied consent of each party to the conversation; or • for the purposes of proceedings for an offence against the Act. 120 119 120

See, for example, Miller v TCN Channel Nine (1988) 36 A Crim R 92. ACT: s 6(2); Qld: s 44(2); SA: s 5(2); Tas: s 9(2)(a). South Australia also expressly includes “relevant investigation” of contravention. That may be implied in the other jurisdictions in as much as it may not be possible to hold a proceeding without first having an investigation.

[8.360] 545

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In addition the ACT statute allows communication or publication where the recording is to protect the lawful interests of a principal party to the conversation who consented to the use of the device, 121 and the Tasmanian statute allows communication or publication is an connection with either an imminent threat of serious violence the person or substantial damage to property, or a serious narcotics offence. 122 Moreover, the legislation in Queensland, Tasmanian and the ACT provides that the prohibition does not apply where a person also obtained knowledge of the conversation in some other manner, notwithstanding that he or she obtained knowledge of the conversation by means of the listening device. Accordingly, if a journalist had another source for the information besides the recording he or she would still be entitled to publish the information. 123

Surveillance devices: New South Wales, Northern Territory, Western Australia, Victoria Use of device Prohibition [8.370] New South Wales, Western Australia, Victoria and the Northern Territory have replaced their Listening Devices legislation with Surveillance Devices legislation. 124 However, there are differences in the statutes. In Victoria and the Northern Territory, the statutes provide that a person must not knowingly install, use or maintain: • a listening device to record, monitor or listen to a private conversation to which the person is not a party, without the express or implied consent of each party to the conversation; or • an optical surveillance device to record visually or observe a private activity to which the person is not a party, without the express or implied consent of each party to the activity. 125 In Western Australia the statute provides that a person must not knowingly install, use or maintain or cause to be installed, used or maintained: • a listening device to record, monitor or listen to (a) a private conversation to which that person is not a party or (b) a private conversation to which that person is a party; or 121

ACT: s 6(2)(a)(iv).

122

Tas: s 9(2)(b).

123 124

ACT: s 6(2)(b); Qld: s 44(2)(b); Tas: s 9(2)(c). Surveillance Devices Act 2007 (NSW); Surveillance Devices Act 1998 (WA); Surveillance Devices Act 1999 (Vic); Surveillance Devices Act (NT). Although the South Australia statute is the Listening and Surveillance Devices Act 1972 the surveillance devices provisions only relate to the use of a device pursuant to a warrant. NT: ss 11 – 12; Vic: ss 6 – 7. The Acts also contain prohibitions concerning tracking devices and data surveillance devices.

125

546 [8.370]

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• an optical surveillance device to record visually or observe (a) a private activity to which that person is not a party or (b) a private activity to which that person is a party. 126 In New South Wales the statute provides that a person must not: • knowingly install, use or maintain or cause to be installed, used or maintained a listening device to record, monitor or listen to (a) a private conversation to which that person is not a party or (b) a private conversation to which that person is a party; or • knowingly install, use or maintain an optical surveillance device on or within premises or a vehicle or other object to record visually or observe the carrying on of an activity, where that involves: (a) entry onto or into the premises or vehicle without the express or implied consent of the owner or occupier, or (b) interference with the vehicle for other object without the express or implied consent of the person having lawful possession or control of the vehicle or object. 127 Accordingly, the prohibitions in Western Australia and New South Wales would cover both instances where the journalist is one of the persons involved in the conversation/activity and where the journalist is a third party to a conversation/activity involving others, while those in Victoria and the Northern Territory only apply where the journalist is a third-party to a conversation/activity involving others. In those jurisdictions it is legal for a person to record a private conversation to which they are a party. 128 The West Australian and New South Wales prohibitions also extend to persons who “cause” the installation, use or maintenance of the device. “Private conversation” is defined as a conversation carried on in circumstances that may reasonably be taken to indicate that any of the parties to it desire it to be heard only by themselves, but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it may be overheard by someone else. A “party” to a private conversation is either a person (1) by or to whom words are spoken in the course of the conversation (also known in Western Australian as a “principal party”), or (2) who, with the express or implied consent of any principal party, records, monitors or listens to those words. Similarly, in Western Australia, Victoria and the Northern Territory a “party” to a private activity is a person (1) who takes part in the activity (also known in Western Australia as a “principal party”), or (2) who with the express or implied consent of any principal party, observes or records the activity. 129 In New South Wales a “party” to an activity is simply a person who takes part in the activity. 130 In Western Australia and the Northern Territory “private activity” is defined as meaning an activity carried on in circumstances that may reasonably be taken to indicate that any of the parties to it desire it to be observed only by themselves, but does not include an activity 126

NSW: ss 7 – 8; WA: ss 5 – 6.

127

NSW: ss 7 – 8; WA: ss 5 – 6. See, for example, WK v The Queen (2011) 33 VR 516. NT: s 4; Vic: s 3; WA: s 3. In the Northern Territory “party” only refers to a principal party (as called in Western Australia). NSW: s 4.

128 129 130

[8.370] 547

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carried on in any circumstances in which the parties to it ought reasonably to expect that they may be observed by someone else. 131 In Victoria, “private activity” is similarly defined but also excludes “an activity carried on outside a building”. 132 It would seem that the term “building” might not be restricted to the four walls of a building. It has been held that a transaction in the yard of a private residence may still be considered to be a public activity where the parties are shielded from sight and out of earshot of other people in the vicinity. In such a case the location and physical environment in which the incident takes place will be of significance to what, objectively, the parties expected with regards to privacy. 133 A primarily subjective test is applied when deciding whether, for the purposes of the definition of “private conversation” or “private activity”, any of the parties “desire it to be heard/observed only by themselves”. Thus a person must actually hold the desire, although the circumstances must show that the desire is reasonable. An objective test is then applied to the exclusion in the definitions of “circumstances in which the parties to the conversation/ activity ought reasonably to expect that the activity may be heard/observed”. 134 Moreover, the reference to “parties” in this exclusion does not mean all parties ought reasonably to have intended the incident to be restricted to themselves. Clearly an operative who wears a surveillance device knows the incident is being observed or listened to by third parties. Instead, the relevant “party” in the exclusion refers to the “person” appearing earlier in the definition. It is enough in such circumstances to show that the target desired the conversation or activity to be private and for there to be no grounds to reasonably expect that it may be overheard or observed. 135 The prohibition may be contravened even where a camera capable of recording is installed, even if it is turned off and not actually recording. 136 However, some other matters involving interpretation of the statutes remain unresolved. For example, if what is being filmed is unlawful activity, it might be argued that such an activity cannot be regarded as private on public policy grounds. 137 Further, there is provision in the Western Australian statute that no court sanction may be obtained where in the course of using a surveillance device an unlawful act is done. 138 On a broad interpretation this could be satisfied where the incident being filmed is an unlawful act, for example, a drug transaction. However, a better view may be that the unlawful act must be associated with the use of the device, such as filming whilst trespassing or if the operator had broken into premises in order to install the device. 139

131 132

NT: s 4; WA: s 3. Vic: s 3.

133

Re Surveillance Devices Act 1998; Ex parte TCN Channel Nine Pty Ltd [1999] WASC 246 at [18].

134 135 136 137

Re Surveillance Devices Act 1998; Ex parte TCN Channel Nine Pty Ltd [1999] WASC 246 at [19], [21]. Re Surveillance Devices Act 1998; Ex parte TCN Channel Nine Pty Ltd [1999] WASC 246 at [19], [21]. Brown v Palmer [2008] VSC 335. Re Surveillance Devices Act 1998; Ex parte TCN Channel Nine Pty Ltd [1999] WASC 246 at [22].

138 139

WA: s 25. Re Surveillance Devices Act 1998; Ex parte TCN Channel Nine Pty Ltd [1999] WASC 246 at [29].

548 [8.370]

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Exceptions [8.380] The statutes provide several exceptions to the prohibitions against the use, installation and maintenance of surveillance devices. Most have no relevance to the media. However, in New South Wales and Western Australia there are exceptions to their prohibitions against the recording of a conversation or activity to which the person is not a party where: • each principal party to the activity expressly or impliedly consents; or • a principal party expressly or impliedly consents and it is reasonably necessary for the protection of the lawful interests of that principal party. 140 Similar observations concerning the interpretation of “reasonably necessary for the protection of the lawful interests” under these statutes may be made as for the similar exception under the Listening Devices Acts. 141 Accordingly, “reasonably necessary” is construed as meaning appropriate, but not essential or unavoidable. Whether the use of the device is reasonably necessary is an objective test, judged on the circumstances that existed at the time of the use. Finally, lawful interests are distinguishable from “legal interests”. Thus, for example, a recording made may be legally made under this exception where a serious dispute has erupted and there may be different versions of an arrangement. 142 It would also apply where there were, for example, threats of violence against the person by another person in the course of the recorded conversation between them or if one person was subjected to blackmail during the recorded conversation. 143 Western Australia also provides an exception where the use, installation or maintenance is for the purposes of publication or communication in the public interest. 144

Communication of content Prohibition [8.390] These statutes also generally provide that a person must not knowingly communicate or publish a record or report of a private conversation or private activity that has been made as a direct or indirect result of the use of a listening device or an optical surveillance device. 145 This includes Victoria and Northern Territory, where recording a private conversation to which the person is a party is not prohibited but publication of the recording is regulated due to its privacy implications. Again, the New South Wales prohibition only refers to an “activity” and therefore is not restricted to private activities.

140

142 143

NSW: s 7(3); WA: s 5(3), 6(3). See Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72; Farris v Boase [2013] WASC 227; DW v The Queen [2014] NSWCCA 28. For a discussion of the meaning of protection of lawful interests under the Listening Devices Acts. Farris v Boase [2013] WASC 227 at [13]. WK v The Queen (2011) 33 VR 516 at [41]-[42].

144

WA: s 5(2)(d), 6(2)(d). See [8.410]-[8.430].

145

NSW: s 11; NT: s 15; Vic: s 11(1); WA: s 9(1).

141

[8.390] 549

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Exceptions [8.400] Generally. In New South Wales exceptions to the prohibition against communication are provided (so far as is relevant to the media) with respect to: • a communication or publication made with the express or implied consent of all the principal parties to the private conversation or activity; or • a communication or publication that is no more than is reasonably necessary in connection with the imminent threat of (1) serious violence to persons or of substantial damage to property or (2) commission of a serious narcotics offence. 146 In Victoria, Western Australia, and the Northern Territory exceptions are provided (so far as is relevant to the media) with respect to: • a communication or publication made with the express or implied consent of each party to the private conversation or private activity; or • a communication or publication that is no more than is reasonably necessary (1) in the public interest; (2) for the protection of the lawful interests of the person making it. 147 Once again, the observations concerning the meaning of “protection of lawful interests” are pertinent. 148 The defence will embrace cases where there is a dispute between parties and the recording is intended to support one party’s version of affairs, 149 or recorded threats of violence or blackmail. 150 [8.410] Court authorisation for publication in the public interest. Western Australia additionally allows publication or communication in the public interest if the court’s sanction is obtained. For these purposes, “public interest” is defined as including the interests of national security, public safety, the economic well-being of Australia, the protection of public health and morals and the protection of the rights and freedoms of citizens. 151 Two situations are contemplated: • where the use of a listening device or optical surveillance device is (1) used with the express or implied consent of a principal party, and (2) is believed on reasonable grounds to be in the public interest; 152 or • where it is believed on reasonable grounds that the “circumstances are so serious and the matter is of such urgency” that the use of a listening device or optical surveillance device is in the public interest. 153 146 147

NSW: s 11(2). Vic: s 11(2); WA, s 9(2); NT s 15(2).

148 149 150 151

See [8.270]. Metz Holdings Pty Ltd v Simmac Pty Ltd (No 1) [2011] FCA 263. WK v The Queen (2011) 33 VR 516 at [41]-[42]. WA: s 24.

152 153

WA: ss 26, 27. WA: ss 28, 29.

550 [8.400]

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In the latter case the use and certain other information must be reported to a judge “without delay”. 154 In either case a judge may make an order authorising publication or recording of a report or record of a private conversation or private activity in order to “protect or further the public interest”. 155 This is a criterion not easily satisfied. Example

Channel Seven Perth Pty Ltd v “S” (A Company) [8.420] Channel Seven Perth Pty Ltd v “S” (A Company) (2007) 34 WAR 325; [2007] WASCA 122 M was a casual receptionist/data input processor with the respondent company. After she became pregnant and informed the general manager she was told that her employment would be terminated. The general manager maintained that this was because it was an occupational health and safety issue. The matter came to the attention of the producers of a current affairs program, who arranged for M to go back to the respondent with a hidden camera to record her asking the general manager to explain why her employment had been terminated. An application was then made for an order permitting the conversation and activity recorded by the hidden camera to be broadcast, on the basis that the interview raised issues concerning equal opportunity and unfair dismissal laws and that promoting a debate on those subjects was in the public interest. The application was rejected both at first instance and on appeal. The West Australian Court of Appeal held that the relevant question was whether the publication should be made to protect or further the public interest. The general manager’s purpose was to explain to M in good faith why her services have been terminated. Such conduct should be encouraged on the part of employers. The prospect of appearing on “candid camera” may instead serve as a disincentive. Further, the current affairs program proposed to publish the covertly obtained private information to the community at large. The scheme of the Surveillance Devices Act 1998 (WA) is not to prohibit the publication of the content of private conversations or private activities generally. Instead, the Act reflected a legislative acceptance that there is a strong public interest and public policy against the use, in relation to private conversations and private activity, of covert devices and the publication of such information obtained by the use of covert devices. Thus, for example, the Act would not have been infringed if M had simply informed the current affairs program and its audience of what the general manager said to her about the termination of employment. She could also have done so after the covert surveillance provided she had not refreshed her memory from the record of the covert devices. The current affairs program may have been able to more effectively stimulate audience interest by use of the covertly obtained images and audio. That may have been a reflection of the great entertainment value in witnessing people who are unaware of

154 155

WA: s 30. WA: s 31.

[8.420] 551

Australian Media Law Channel Seven Perth Pty Ltd v “S” (A Company) cont. being filmed but did not contribute in any meaningful way to the public interest. If the matter as relied on by the current affairs program here were seen as sufficient to satisfy the criteria of being in order to “protect or further the public interest” there could be widespread use by the media of covertly obtained private information contrary to the language and purpose of the Act.

[8.430] The Court of Appeal noted, however, that at present the general manager had no legally enforceable right under Australian law, whether at common law or under statute, to protect his personal privacy. 156 Accordingly, there was no public interest in protecting the privacy of the general manager’s conversation, and that alone would not have been a valid reason for exercising the discretion against allowing publication. The judge is entitled to impose such conditions as thought fit. Thus, while the requirement of a court sanction may make a journalist’s position more certain with respect to publications or communications in the public interest, it may constitute a hurdle that could slow the process of some investigative journalism in that State. 157

Personal privacy [8.440] For many years Victoria Park Racing and Recreation Grounds Co Ltd v Taylor 158 had been cited as authority for the proposition that Australian law does not recognise a general right of privacy. 159 However, in the High Court case Australian Broadcasting Corp v Lenah Game Meats Pty Ltd 160 several judges indicated that Victoria Park should not be regarded as precluding the development at common law of a tort of invasion of privacy, although such a tort would only be for the benefit of natural persons and would not protect the goodwill of a corporation. 161 Indeed, Callinan J was inclined to support a tort of invasion of privacy that would be available to natural persons, corporations and governments. 162 It has been said that the foundation for a tort of invasion of privacy is that the intensity of modern life renders desirable some retreat from the world and the increasing exposure of personal modesty, dignity and self-respect to practices which overstep the bounds of propriety. 163 Elsewhere, the foundation of any rights of privacy has been expressed as being 156

See [8.440].

157 158 159

Re Surveillance Devices Act 1998; Ex parte TCN Channel Nine Pty Ltd [1999] WASC 246. Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 at 496, 521. See, for example, Cruise and Kidman v Southdown Press (1993) IPR 125 at 125.

160 161

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 248-249, 256-258 per Gummow and Hayne JJ (with whom Gaudron J agreed).

162 163

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 327-328. J Fleming, Law of Torts (9th ed, 1998), p 664.

552 [8.430]

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either human dignity 164 or the fundamental value of personal autonomy. 165 It has been said that the law must change to accommodate developments in technology and changes in attitudes, practices and values in society. 166 Advances in technology, including miniature cameras and listening devices and more powerful telephoto lenses, allow greater ease of intrusion into private lives than ever before whilst the internet provides ready access to a means of worldwide dissemination of private affairs. In the age of technology there is now nowhere on the planet that can be regarded as offering a completely safe haven for one who wishes to be left alone. These kinds of considerations have prompted some lower courts to recognise claims for breach of privacy and the Australian Law Reform Commission, 167 the New South Wales Law Reform Commission 168 and Victorian Law Reform Commission 169 to recommend the enactment of a statutory cause of action for invasion of privacy. Such a move is strongly opposed by both the print and electronic media, which argue that a cause of action would create uncertainty as to the scope of protection, which in turn would have a chilling effect on free speech. This may curb legitimate reporting activities, including investigative journalism as to inappropriate for illegal conduct by public figures, reports as to which often begin from rumour and innuendo. 170

Protection of personal privacy in other countries [8.450] If Australia were to develop protection for personal privacy, it would be natural to seek guidance from the experience in other countries. Protection of privacy is common amongst the civil law countries such as Germany, France and Italy. 171 However, as a common law country Australia may regard the position in other common law countries such as the United States, United Kingdom and New Zealand as of greater relevance.

United States [8.460] An independent tort of invasion of privacy evolved in the United States as the consequence of a seminal article which appeared in the Harvard Law Review in 1890. 172 This article synthesised a number of mainly English authorities, which were on their face based on matters such as defamation, invasion of some property rights, breach of confidence by contract, and concluded that there was in reality a common thread based on a right of 164

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 226 per Gleeson CJ.

165 166 167

Douglas v Hello! Ltd [2001] QB 967 at 1001. Hosking v Runting [2005] 1 NZLR 1 at [3]. ALRC Report 108, ALRC Report 123.

168

NSWLR Report 120.

169

VLRC Report 18.

170

ALRC Report 108, [74.85]-[74.104]; NSWLRC Report 120, para [3.3]. See also P Leonard, “Proposals for a statutory cause of action for invasion of privacy in Australia: A brief comparison” (2010) 6(5/6) Privacy Law Bulletin 1.

171 172

B Markesenis (ed), Protecting Privacy (1999), Chs 2-4. SD Warren and LD Brandeis, “The right to privacy” (1890) 4 Harv L Rev 193.

[8.460] 553

Australian Media Law

privacy. 173 After some initial hesitation, the tort has now developed such that in one form or another a right of privacy is recognised in virtually all United States’ jurisdictions. 174 It has transpired that invasion of privacy in America is not a single tort but a complex of four distinct kinds of invasion of different interests of the plaintiff, which may be conveniently referred to as: • unreasonable intrusion on solitude; • public disclosure of private facts; • publicity which presents the plaintiff in a false light in the public eye; and • appropriation of the plaintiff’s name or visage. 175

Unreasonable intrusion [8.470] The first manifestation of an invasion of privacy is the physical invasion upon the plaintiff’s private domain. The cause of action might be reduced to four elements: (1) an intentional interference; (2) with another’s interest in solitude or seclusion (either as to person or private affairs or concerns); (3) which would be highly offensive and objectionable to a reasonable person of ordinary sensibilities; and (4) which is not outweighed by a sufficient legitimate public interest in disclosure. 176 The last element might alternatively be regarded as a defence of disclosure in the public interest. This concept of an invasion of privacy by unwanted intrusion is particularly relevant to the media’s newsgathering activities. Essentially, this manifestation of privacy relates to the plaintiff’s right to some peace and quiet. The focus is on the “type of interest involved and not the place where the invasion occurs”. 177 Offending conduct has been held to include entering the plaintiff’s home or premises in pursuit of a story, 178 as well as eavesdropping, 179 peering through windows 180 and making persistent and unwanted telephone calls. 181 By contrast, merely photographing someone in or from a public place may be insufficient unless the photographer’s conduct amounts to harassment. 182 There must in any event be an affirmative act. 183 Further, the plaintiff must be able to show an objectively reasonable expectation of seclusion or solitude in the circumstances. 184 173 174

Prosser and Keeton (5th ed, 1984), p 849. Prosser and Keeton (5th ed, 1984), p 851.

175 176 177 178

W Prosser, “Privacy” (1960) 48 Cal LR 383. Restatement (Second) of Torts §652B. Evans v Detlefsen 857 F 2d 330 (6th Cir 1988) at 338. See, for example, Dietemann v Time Inc 449 F 2d 245 (1971) (entry of home to surreptitiously take photographs and record conversation held to be an invasion of privacy); Mistral Inc v CBS 402 NYS 2d 815 (1978) (photographing interior of restaurant over objections by management held to be invasion of privacy); cf Florida Publishing Co v Fletcher 340 So 2d 914 (1976) (photograph of interior of fire-damaged house not an invasion of privacy since photographer was present at the invitation of investigating officer).

179 180 181 182

See, See, See, See,

183 184

Kane v Quigley 203 NE 2d 338 (Ohio 1964) at 340. Shulman v Group W Productions, Inc 955 P 2d 469 (Cal 1998) at 490.

for for for for

554 [8.470]

example, example, example, example,

Dietemann v Time Inc 449 F 2d 245 (1971). Souder v Pendleton Detectives Inc 88 So 2d 716 (1956) (La App). Harms v Miami Daily News Inc 127 So 2d 715 (1961) (Fla). Galella v Onassis 487 F 2d 986 (1973).

Chapter 8 – Privacy

Whether the intrusion was “highly offensive and objective” is a question of fact according to social conventions or expectations, taking into account matters such as the degree of intrusion, context, conduct and circumstances of the intrusion, the motive and objectives of the intruder and the expectations of those whose privacy is invaded. 185

Public disclosure of private facts [8.480] The second manifestation of an invasion of privacy comprises four elements: (1) a public rather than private disclosure; (2) of private rather than public facts; (3) which would be highly offensive and objectionable to a reasonable person of ordinary sensibilities; and (4) which is not outweighed by a sufficient legitimate public interest in disclosure. 186 An alternative formulation supported in many American jurisdictions is that one person gives publicity to a matter concerning the private life of another which is matter of a kind that (a) would be highly offensive to a reasonable person and (b) is not a legitimate concern to the public. 187 In order for a fact to be a “public” fact, so as to enable its publication by the media with impunity from this action, it may not be enough that the event took place in a public place in the view of the general public or that it can be found in a public record. The matter should not receive widespread publicity unless it involves a matter of public concern: there can be highly offensive publicity given to something that happened long ago, even though it occurred in a public place or was publicly known at the time. 188

Display in a false light [8.490] The third manifestation of invasion of privacy is publicity which presents the plaintiff in a false light in the eyes of the public. The elements may be seen as: (1) intentionally or recklessly (2) giving false publicity to a matter concerning another (3) where that false light would be highly offensive and objectionable to a reasonable person of ordinary sensibilities. 189 The false light need not be defamatory, but often may be, in which case there may be both an action for invasion of privacy (to protect the plaintiff’s interest in being left alone) and an action for defamation (to protect the plaintiff’s reputation). The distinction is that the action for invasion of privacy allows a person to sue when portrayed falsely but not in a way which damages his or her reputation. The action will catch certain instances of inaccurate reporting. For example, an action for invasion of privacy in this respect might be brought where a reporter misrepresents the facts of a story, such as invented responses by the plaintiff, in 185 186

Miller v National Broadcasting Co 187 Cal App 3d 1463 (Cal Ct App 1986) at 1483. See Prosser and Keeton (5th ed, 1984), pp 856-857.

187

Restatement (Second) of Torts §652D.

188

Prosser and Keeton (5th ed, 1984), p 859; Melvin v Reid 112 CA 285 (1931) (Cal App) (film revealing past activities of former prostitute charged and acquitted of murder – held there was an invasion of privacy, the publication serving little social utility and therefore no longer in the public interest). Restatement (Second) of Torts §652E.

189

[8.490] 555

Australian Media Law

order to produce a “good story”. 190 A photograph may be vulnerable where its caption creates a false impression about the subject of the photograph. 191 A defence may lie for non-malicious but erroneous publications involving matters of public interest. 192

Appropriation [8.500] The final form of invasion of privacy recognised by American courts involves the appropriation, for the defendant’s benefit or advantage, of the plaintiff’s name or likeness. It would seem that three elements must be shown: (1) identification of the plaintiff, whether by name, visage or otherwise; (2) intentional appropriation of the name or likeness by the defendant (3) for his or her own commercial advantage. Mere incidental mention of the plaintiff’s name or use of his or her picture is not sufficient. 193 The effect of the cause of action is to recognise or create an exclusive right in the individual plaintiff to the commercial use of his or her name, likeness and reputation. 194 It may for this reason be seen more as a right to publicity rather than a right to privacy. 195 The main defence available is consent.

England No common law protection [8.510] In Kaye v Robertson 196 a journalist and photographer gained access to a hospital room where a television star was recuperating from serious head injuries sustained in an accident during a storm. Although the judges regarded such a case as a “monstrous invasion of privacy” and an archetypal example of a situation in which personal privacy should be protected by the law, no remedy was available under English law. 197 The House of Lords has since confirmed that there is no general tort for infringement of privacy. 198

190

191

192 193 194 195

See, for example, Cantrell v Forest City Publishing Co 419 US 245 (1974) (reporter following up effect of father’s death in bridge disaster on family stressed the family’s poverty included many inaccuracies including the wife’s mood and attitude in his story when he had not even talked to her - held to be an invasion of privacy). See, for example, Gill v Curtis Publishing 38 Cal 2d 273 (1952) (a photograph of a couple sitting closely together used to illustrate unrelated story on the dangers of love at first sight with a caption that “love at first sight is a bad risk” – held to be an invasion of privacy); cf Gill v Hearst Corporation 40 Cal 2d 224 (1953) (same photograph used by a different magazine with the caption “immortalized in a moment of tenderness” not an invasion of privacy). Time Inc v Hill 385 US 374 (1967). See also Restatement (Second) of Torts §652C. See Prosser and Keeton (5th ed, 1984), pp 851-854.

196

See, for example, MB Nimmer, “The right of publicity” (1954) 19 Law & Contemporary Problems 203; Wacks (1989), p 38. Kaye v Robertson (1991) 19 IPR 147; [1991] FSR 62.

197 198

Kaye v Robertson (1991) 19 IPR 147; [1991] FSR 62 at 150 (IPR). Wainwright v Home Office [2004] 2 AC 406 (no claim of privacy for prison strip search).

556 [8.500]

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Expansion of breach of confidentiality [8.520] Nevertheless, a form of protection from disclosure of private information has developed in England. The catalyst for change has been the Human Rights Act 1988 (UK), s 6(1) which provides that English courts should, when making their determinations, take into account the European Convention on Human Rights. This Convention recognises both a right to privacy and a right to freedom of expression. Cause for change was also signalled, by a ruling by the European Commission of Human Rights in a case involving photographs taken surreptitiously with a telephoto lens, that English law had not been exhausted since an action for breach of confidence was available and could be developed. 199 It has been seen that there has been authority which has applied this doctrine beyond the original sphere of trade and business secrets to include secrets of a more personal nature as having the necessary quality of confidence. 200 Subsequent cases have further expanded the doctrine, recognising that the obligation of confidence may extend to parties other than confidants where they ought to realise that the information is confidential because they have needed to obtain access to it by surreptitious means. 201 Breach of confidence therefore has been seen as a sufficient means of protecting privacy. 202 Indeed some English judges have said that whether the cause of action is called breach of privacy or breach of confidentiality is merely a matter of labels 203 Later cases have, however, pushed further beyond a rationale of binding the conscience of a confidant or third party who acquires information that he or she knows or ought know is confidential. In Venables v News Group News Papers Ltd 204 the notorious infant murderers of toddler James Bulger wished to prevent the media from disclosing their identities and whereabouts following their release from custody. It was held that this confidential information could be protected where not to do so would likely lead to the serious physical injury or death of the claimant, there being no other way to protect him or her. Then in A v B plc, 205 which involved two women who wish to take details of their sexual affair with a married professional footballer to the media, it was held that a duty of care should arise whenever the party subject to the duty is in the situation where he or she knows or ought to know that the other person can reasonably expect his or her privacy to be protected. It might be suggested that the formulation in Venables can be seen as an example of the broader A v B formulation.

199 200

Earl Spencer v United Kingdom (1998) 25 EHRR CD 105 at 117-118. See [7.60].

201

Shelley Films v Rex Features Ltd [1994] EMLR 134; Hellewell v Chief Constable of Derbyshire [1995] 4 All ER 473; Creation Records Ltd v News Group Newspapers Ltd (1997) 39 IPR 1.

202 203

Douglas v Hello! [2001] QB 967. Sedley LJ, however, suggested that it was time for English law to recognise a right to privacy per se: at 1001. See, for example, Keene LJ in Douglas v Hello! Ltd [2001] 2 All ER 289 at 330.

204 205

Venables v News Group Newspapers Ltd [2001] 1 All ER 908. A v B plc [2003] QB 195; [2002] 2 All ER 545 (CA).

[8.520] 557

Australian Media Law

Misuse of private information [8.530] The issue finally reached the House of Lords in Campbell v MGN Ltd, 206 which concerned a well-known model, who falsely professed to not be a user of drugs, being photographed leaving a Narcotics Anonymous meeting. The court was in general agreement concerning the law but split 3-2 on the application of that law to the facts. It was suggested that the nomenclature “breach of confidence” was now outdated and misleading. There was no real difference between obtaining confidential personal information in breach of a confidential relationship and obtaining the same information by other means. Instead of thinking in terms of whether information had a quality of confidence, whether it was obtained under an obligation of confidence, and whether there was a public interest defence, under the influence of the Human Rights Act 1988 and the European Convention on Human Rights the query now was more properly centred on the right to respect for private life (which included privacy) under Art 8 of the Convention and the countervailing right to freedom of expression under Art 10. Their Lordships therefore thought that the exercise involved two stages: (1)

a determination of whether the person publishing the information knows or ought to know that there is a reasonable expectation that the information in question will be kept confidential; 207

(2)

once that threshold is reached, balancing, as a matter of fact and degree, the interest of the recipients in publishing the information, giving full recognition to the importance of free expression and with a measure of latitude shown for the practical exigencies of journalism such as the fact that editorial decisions must often be made in the context of tight deadlines. 208

What would be considered “highly offensive to a reasonable person of ordinary sensibilities” might be regarded as a matter informing the balancing exercise, rather than, for example, a test for what information might be regarded as private. 209 Accordingly in England the equitable action for breach of confidence – which Lord Nicholls in Campbell v MGN suggested should be now relabelled “misuse of private information” 210 – provides a means for protecting private facts. However, it comes at the price of distorting the cause of action by removing it from its original rationale, which is the preservation of duties of good faith 211 or obligations of conscience. 212 Nevertheless, as Lord Nicholls explained in the 206

Campbell v MGN Ltd [2004] 2 AC 457.

207

Campbell v MGN Ltd [2004] 2 AC 457 at [21] (per Lord Nicholls), [84] per (Lord Hope), [134] (per Baroness Hale), citing A v B plc [2003] QB 195; [2002] 2 All ER 545 (CA) and Venables v News Group Newspapers Ltd [2001] 1 All ER 908. Campbell v MGN Ltd [2004] 2 AC 457 at [62] (per Lord Hoffman); [120] (per Lord Hope); [169] (per Lord Carswell). As was suggested by Gleeson CJ in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199.

208 209 210 211

Campbell v MGN Ltd [2004] 2 AC 457 at [14]. See, for example, Fraser v Evans [1969] 1 QB 349 at 361 per Lord Denning MR.

558 [8.530]

Chapter 8 – Privacy

later House of Lords decision in Douglas v Hello! Ltd, 213 it is important to keep distinct the two causes of action covered by “misuse of private information”, as the law has developed in England: In some instances information may qualify for protection both on grounds of privacy and confidentiality. In other instances information may be in the public domain, and not qualify for protection as confidential, and yet qualify for protection on the grounds of privacy. Privacy can be invaded by further publication of information or photographs already disclosed to the public. Conversely, and obviously, a trade secret may be protected as confidential information even though no question of personal privacy is involved. 214

A developing jurisprudence [8.540] Subsequent cases have begun fleshing out the nuances of the cause of action. One cause of action or two? [8.550] The majority of English authority has concerned invasions of privacy by disclosure of private facts. A question still to be authoritatively settled is whether the common law in that country now also embraces invasions by way of intrusion, or whether the rejection of such a claim in Kaye v Robertson 215 still represents good law. In CTB v News Group Newspapers Ltd 216 a prominent English football player who had been involved in an extramarital affair with a former contestant on the Big Brother reality show obtained a “super-injunction” that not only restrained the woman from selling her story to a newspaper and the newspaper from publishing the story but also prevented the newspaper from publishing his identity. 217 Within a week the football player had been identified in over 75,000 tweets on Twitter. Nevertheless, Eady J refused to vary the injunction to allow the newspaper to name the football player, despite arguments that his identity had entered the public domain, on the ground that while that information was available on the internet to those who took the trouble to look it up it had not yet been published in the mainstream media, which would be significantly more intrusive and distressing to those concerned. 218 As a response to that ruling, a Member of Parliament named the player under parliamentary privilege later that day. Nevertheless, a different judge still refused to vary the terms of the injunction. While Tugendhat J acknowledged that if the purpose of the injunction were to preserve a secret, it had failed that purpose. However, he thought that it still served its purpose in protecting the football player and his family from “taunting and other intrusion and harassment in the print media”. 219 Subsequently, in Goodwin v NGN Ltd 220 Tugendhat J went 212

See, for example, Attorney-General v Guardian Newspapers (No 2) [1990] 3 WLR 776 at 268 per Lord Griffiths.

213

Douglas v Hello! Ltd [2007] UKHL 21.

214 215 216 217

Douglas v Hello! Ltd [2007] UKHL 21 at [255]. Kaye v Robertson (1991) 19 IPR 147; [1991] FSR 62 (CA). CTB v News Group Newspapers Ltd [2011] EWHC 1232. CTB v News Group Newspapers Ltd [2011] EWHC 1232.

218 219

CTB v News Group Newspapers Ltd [2011] EWHC 1232 at [24]. CTB v News Group Newspapers Ltd [2011] EWHC 1232 at [3].

[8.550] 559

Australian Media Law

further and suggested that the right to respect for private life guaranteed by Art 8 and protected under the balancing exercise recognised in Campbell v MGN embraced two core components: unwanted access to private information, which he called “confidentiality”, and unwanted access to or intrusion into one’s personal space, which he called “intrusion”. As such the balancing exercise applied in both types of case: first a reasonable expectation of privacy must be established, and if it is then it must be balanced against the freedom of expression guaranteed by Art 10. Recognition of a cause of action for intrusion may therefore be defensible in terms of the European Convention on Human Rights. It does, however, represent a further advance in the law protecting personal piracy. His Honour’s views are yet to be endorsed by a superior court. Establishing whether there is a reasonable expectation of privacy [8.560] The first element was expressed in varying language by the Law Lords in Campbell v MGN. While Lord Hoffmann thought that there was “no significant differences” in the approach between the judges, one point of distinction was that Lord Hope did not appear to include the limiting requirement of “knows or ought to know”, whereas such a requirement appeared to be supported by Lord Nicholls and Baroness Hale. The view of Lord Hope has been described as better aligned with the test set out in Art 8 of the European Convention on Human Rights. 221 It has been suggested that the phrase “knows or ought to know”, in the early judgments was explicable on the basis that the action for misuse of private information originated in the action for breach of confidentiality, where it was necessary to show that a person receiving information knew or ought to known that it was subject to an obligation of confidentiality. 222 However, as the law has continued to develop there has been greater recognition that the cause of action, being based in Art 8, had now shaken off that limiting constraint of the need to show an initial confidential relationship. As a consequence it is now sufficient to show that there was a reasonable expectation of privacy in the circumstances, without the need to show that the publisher knew or ought to known that that was the case at the time. 223 In Murray v Express Newspapers the Court of Appeal held that determining whether or not there is a reasonable expectation of privacy is a broad question that takes into account all the circumstances of the case. These will include: • the attributes of the claimant; • the nature of the activity in which the claimant was engaged; • the place at which it was happening; • the nature and purpose of the intrusion; • the absence of consent and whether it was known or could be inferred; • the effect on the claimant; and 220 221

Goodwin v NGN Ltd [2011] EWHC 1437 at [85]. Weller v Associated Newspapers Ltd [2014] EWHC 1163 at [29].

222 223

Weller v Associated Newspapers Ltd [2014] EWHC 1163 at [36]. Weller v Associated Newspapers Ltd [2014] EWHC 1163 at [37].

560 [8.560]

Chapter 8 – Privacy

• the circumstances in which and the purposes for which the information came into the hands of the publisher. 224 This test has since gained support as the relevant test for the first element of the cause of action. 225 It may be relevant to consider not only the interests of the plaintiff but also the interests of third parties who may be affected by the publication, such as the plaintiff’s family, 226 even where the impact of the invasion of privacy is greater on the third parties than the plaintiff. 227 Under the law of confidentiality, information loses its quality of confidentiality if it enters the public domain but does not where there is a limited disclosure. 228 Similarly, while there will be no expectation of privacy where personal information has already been so widely publicised that restraint upon repetition would be pointless, 229 there may still be such an expectation where the information has been shared with a limited group of others who are not intended to make the information generally available. 230 Whether what starts as information which is private has become information known to the public at large is a matter of fact and degree for determination in each case depending on its specific circumstances. 231 There is, for example, potentially an important distinction between information available to a person’s circle of friends or work colleagues and information that is published in a newspaper. 232 Above all, a distinction must be drawn with disclosure of trade secrets. In the case of private information “entering the public domain” should be taken to mean that that there is no longer anything by way of privacy left to be protected and that an injunction would serve no useful purpose. 233

224 225

227 228

Murray v Express Newspapers Plc [2009] Ch 481 at [36]. AAA v Associated Newspapers Ltd [2012] EWHC 2103 at [64] not disturbed on appeal AAA v Associated Newspapers Ltd [2013] EWCA Civ 554; RocknRoll v News Group Newspapers Ltd [2013] EWHC 24 at [5]; Othman v English National Resistance [2013] EHWC 1421 at [60]; Weller v Associated Newspapers Ltd [2014] EWHC 1163 at [37]. ETK v News Group Newspapers Ltd [2011] EWCA Civ 439 at [17]-[18]. Ntuli v Donald [2011] 1 WLR 294. In CDE v MGN Ltd [2010] EWHC 3308 at [7] Eady J noted that the rights of the plaintiff’s family were a legitimate consideration to be weighed in the balance and could not simply be ignored on the basis of traditional arguments along the lines of who has a cause of action and who does not. King v Sunday Newspapers Ltd [2011] NICA 8 at [20]. See [7.110].

229

Mosley v News Group Newspapers Ltd [2008] EWHC 1117.

230

231

Douglas v Hello! Ltd (No 3) [2006] QB 125 at [55]. See, for example, HRH Prince of Wales v Associated Newspapers Ltd [2006] EWHC 522 (Ch) at [99]-[116] (Prince Charles’ private diary with his private thoughts about the handover of Hong Kong to the Chinese available to inner circle of up to 75 people – nevertheless not in public domain and therefore, had a reasonable expectation of privacy); McKennitt v Ash [2008] QB 73 (tell-all book about author’s friendship with famed folk singer – held that there was a reasonable expectation of privacy regarding private thoughts, feelings and relationships despite some of the information also being known by singer’s inner circle). ETK v News Group Newspapers Ltd [2011] EWCA Civ 439 at [10].

232 233

Browne v Associated Newspapers Ltd [2008] QB 103 at [61]. RocknRoll v News Group Newspapers Ltd [2013] EWHC 24 at [25].

226

[8.560] 561

Australian Media Law

Determining the balance [8.570] Once it is established that there is a reasonable expectation of privacy in the circumstances, it is necessary to focus on the comparative importance of the right of free expression, taking into account the justifications for interfering with or respecting each right. 234 It is said that there is a broad spectrum of free speech. At one end is information that if disclosed will contribute to genuine public debate in a democratic society, while at the other lies “tawdry allegations about an individual’s private life or press reports concentrating on sensational and, at times, lurid news, intending to titillate and entertain, which are aimed at satisfying the curiosity of a particular readership regarding aspects of a person’s strictly private life”. 235 The decisive factor when balancing the protection of private life against the freedom of expression lies in the contribution that the published material makes to a debate of general interest. 236 Other relevant factors may be how well known is the person concerned and what is the subject of the report; any prior conduct of the person concerned; the content, form and consequences of publication; and the circumstances in which the photos or information were taken. 237 Judges must not apply their own standards in public or private morality when evaluating the question whether a particular publication would contribute to a genuine public debate. 238 The public interest is not limited to exposure of conduct that is illegal. Not all conduct that is socially harmful is unlawful – there may be conduct that is private and unlawful but which, according to public opinion and acceptable standards of behaviour, should be discouraged. An important aspect of free speech is public discussion and freedom to criticise. 239 However, the focus on striking a balance in the particular circumstances means that broad generalisations, such as “public figures must expect to have less privacy” and “people in positions of responsibility must be seen as ‘role models’ and set us an example of how to live upstanding lives” may sometimes inform the balancing exercise but can never be determinative. 240 Instead the “proportionality test” must be applied to each right – in other words, as Lord Steyn called it, “the ultimate balancing test” under which the focus should be on the comparative importance of the competing claims by reference to the specifics of the rights and interests to be balanced in the particular case. 241 One example where the public interest may outweigh the right to privacy may be in correcting a false image. 242 However, truth is important when correcting false image – there will only be a balance in favour of the public interest where the 234 235 236 237 238 239

In Re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593 at [17]. Mosley v United Kingdom [2011] ECHR 774 at [114]. Von Hannover v Germany (2005) 40 EHRR 1 at [76]; Ntuli v Donald [2011] 1 WLR 294 at [20]; ETK v News Group Newspapers Ltd [2011] EWCA Civ 439 at [10], [23]. Von Hannover v Germany (2005) 40 EHRR 1 at [109]-[113]; Axel Springer AG v Germany [2012] EMLR 15 at [89]-[95]. Terry v Persons Unknown [2010] EWHC 119 at [101]-[105].

240

Terry v Persons Unknown [2010] EWHC 119 at [100] per Tugendhat J approved in Hutcheson v News Group Newspapers Ltd [2011] EWCA Civ 808 at [29] per Gross LJ; Ferdinand v MGN Ltd [2011] EWHC 2454 at [64]. Mosley v News Group Newspapers Ltd [2008] EWHC 1117 at [12].

241 242

Re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593 at [17]. See, for example, Campbell v MGN Ltd [2004] 2 AC 457; Ferdinand v MGN Ltd [2011] EWHC 2454.

562 [8.570]

Chapter 8 – Privacy

individual’s image is indeed false and there is therefore something to be corrected. 243 In a like vein, the public interest may prevail where there is a risk of a distorted and partial picture in a public dispute being presented to the public. 244 It has been held that unduly fettering the freedom to report as editors judge to be responsible would undermine the pre-eminence of the media as a powerful pillar of democracy. It would have an undesirable chilling effect on this freedom if publication were restricted “simply to save the blushes of the famous, fame invariably being ephemeral”. 245 On the other hand, it will not be enough to deprive a person of his or her right to privacy that he or she is a celebrity and that his or her private life is newsworthy. 246 Where children will be affected by publication their interests, while not a decisive factor per se, will be a significant factor in determining the balance. 247 Example

ETK v News Group Newspapers Ltd [8.580] ETK v News Group Newspapers Ltd [2011] EWCA Civ 439 The plaintiff, who was a married man working in the entertainment industry, was involved in a sexual relationship with X, a married woman, who was his co-worker. The man’s wife learnt of the affair and confronted him. Although it was distressing for the wife, they determined to rebuild their marriage, not least for the sake of their two teenage children. To this end, the man informed X that their sexual relationship was over. Continuing their working relationship was awkward, so the man told his employers that in an ideal world he would prefer that he would not have to see her any more and that one or other of them should leave. Subsequently their employers informed X that her services were no longer required, but publicly announced that her leaving was amicable. News of these events were leaked to the News of the World newspaper, which made enquiries that alerted the plaintiff to its wish to publish the fact that the affair was the real cause behind X leaving her employment. The plaintiff, supported by both his wife and X, sought an injunction against the story being published. The trial judge found that there was a reasonable expectation of privacy but held that the balance was in favour of the newspaper’s freedom of expression because there was a public interest in the effect of adultery and the defendant intended to go no further than reporting the fact of the affair and the resultant dismissal of X. On appeal, the English and Wales Court of Appeal agreed that there was a reasonable expectation of privacy in the circumstances. The sexual relationship was essentially a private one – while it had

243 244

See, for example, McKennitt v Ash [2008] QB 73. Hutcheson v News Group Newspapers Ltd [2011] EWCA Civ 808 at [45].

245

ETK v News Group Newspapers Ltd [2011] EWCA Civ 439 at [13]. For an example of matters upheld by a court as being in the public interest according to a good faith judgment by an editor, see: Trimingham v Associated Newspapers Ltd [2012] EWHC 1296. Campbell v MGN Ltd [2004] 2 AC 457 at [120] (per Lord Hope). ETK v News Group Newspapers Ltd [2011] EWCA Civ 439; RocknRoll v News Group Newspapers Ltd [2013] EWHC 24 at [39].

246 247

[8.580] 563

Australian Media Law ETK v News Group Newspapers Ltd cont. become known by one way or another to their work colleagues, their knowledge did not put information into the public domain. The plaintiff was recently entitled to expect that his colleagues would treat the information as confidential, whether they had acquired that information from their own observations of the plaintiff or X, a confidential confession to a colleague or office gossip. A reasonable person of ordinary sensibilities would find the disclosure offensive. Moreover, weight needed to be given to not only the right to respect for the private and family life of the plaintiff himself, but also to the rights of X and the plaintiff’s wife and children. Further, when determining where the balance should be struck between the expectation of privacy and that the newspaper’s freedom of expression, the decisive factor was the contribution that the published information would make to the debate of a matter of general interest. There was no political edge to the publication. The organisation of the economic, social and political life of the country was not enhanced by the publication. Nor would the intellectual, artistic or personal development of members of society be stunted by ignorance of the sexual frolics of figures known to the public. By contrast, the purpose of the injunction was to both preserve the stability of the family while the plaintiff and his wife pursued reconciliation and to save the children the ordeal of playground ridicule by bullies who would feed on the personal discomfort and embarrassment that would inevitably follow publicity. The balance therefore favoured the grant of the injunction.

[8.590] It has been suggested that when determining whether the balance should be in favour of the public interest in publication, the court should determine whether the decision prior to publication was reached as a result of carrying out enquiries and checks consistent with “responsible journalism”, having regard to the same considerations now regarded as relevant to that concept when determining whether there has been a publication in the public interest for the purposes of defamation law. 248

New Zealand A new tort recognised: public disclosure of private facts [8.600] Protection from a breach of privacy in the form of disclosure of private facts has now also been developed as an independent tort in New Zealand. 249 The New Zealand courts proceeded with caution, particularly keeping in mind that the rights and concerns of the

248

Mosley v News Group Newspapers Ltd [2008] EWHC 1117 at [141] referring to Jameel (Mohammed) v Wall Street Journal Sprl [2007] 1 AC 359 and Lord Nicholls’ guidelines to determining “responsible journalism” in Reynolds v Times Newspapers Ltd [2001] 2 AC 127. See further [3.1020].

249

Hosking v Runting [2005] 1 NZLR 1, See aksi Tucker v News Media Ownership Ltd (unreported, New Zealand High Court, Jeffries J, 20 October 1986) without adverse comment by Court of Appeal [1986] 2 NZLR 716; Craig v Attorney-General (1986) 2 CRNZ 551; T v Attorney-General (1988) 5 NZFLR 357; Morgan v Television New Zealand Ltd (unreported, New Zealand High Court, Holland J, 1 March 1990); Bradley v Wingnut Films Ltd [1993] 1 NZLR 415 at 423.

564 [8.590]

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individual must be balanced against the right to freedom of expression under s 14 of the Bill of Rights Act 1990 (NZ) and the corresponding right of the news media to publish information. 250 Unlike the United Kingdom, the New Zealand tort of breach of privacy was not recognised as a development of the equitable action for breach of confidence. 251 Instead, lower New Zealand courts were heavily influenced by the American tort of public disclosure of private facts. 252 However, the element in the American formulation that the claim’s privacy was “not outweighed by a sufficient legitimate public interest in disclosure” was thought better expressed as a defence of publication in the public interest. Further, whether the claimant was a public figure would be a relevant factor in this respect. 253 It was also no defence that the publication of private facts was true or published without malice. 254 A majority of the New Zealand Court of Appeal in Hosking v Runting 255 confirmed the place of the tort of invasion of privacy in the common law of New Zealand. It was considered that advances in technology, changing societal attitudes and a greater focus on human rights at an international level provide a strong impetus for such a development. The case concerned an attempt by a television personality and his wife to prevent publication of photographs of their 18 month-old twins. The leading judgment was the joint judgment of Gault P and Blanchard J, with which Tipping J indicated “general agreement”. 256 The joint judgment saw the absence of a broad right of privacy in the New Zealand Bill of Rights as no impediment to the courts incrementally developing the common law to protect aspects of privacy in appropriate circumstances. 257 Two “fundamental requirements” for a successful claim of interference with privacy were recognised: (1)

the existence of facts in respect of which there is a reasonable expectation of privacy; and

250

Bradley v Wingnut Films Ltd [1993] 1 NZLR 415 at 423; L v G [2002] DCR 234.

251 252

Hosking v Runting [2005] 1 NZLR 1 at [46]. See Tucker v News Media Ownership Ltd [1986] 2 NZLR 716 (plaintiff who conducted a campaign for a heart operation sought to prevent the publication of certain private details, including criminal convictions – interim injunction granted but later lifted when it was shown that convictions were in the public domain); P v D [2000] 2 NZLR 591 (public figure granted injunction to restrain the publication of a newspaper story that revealed that he had been treated in a psychiatric hospital and that he had been attended by police in an emergency medical situation); L v G [2002] DCR 234 (damages awarded where a client took sexually explicit photographs of a prostitute and then had one of them published in an adult magazine without her consent); cf Bradley v Wingnut Films Ltd [1993] 1 NZLR 415 (“splatter film” filmed near gravesite was not a breach of privacy because the information on the tombstone was not private information and because the filming was not highly offensive and objectionable to a reasonable person of ordinary sensitivities in the absence of any overt link between the film and the gravesite).

253 254 255

P v D [2000] 2 NZLR 591; L v G [2002] DCR 234. Tucker v News Media Ownership Ltd [1986] 2 NZLR 716 at 732-733. Hosking v Runting [2005] 1 NZLR 1.

256 257

Although see D Butler (2005) 29 MULR 339 at 355-356 in relation to apparent differences in the judgments. Hosking v Runting [2005] 1 NZLR 1 at [7].

[8.600] 565

Australian Media Law

(2)

publicity given to those private facts that would be considered highly offensive to an objective reasonable person. 258

The precise boundaries of the tort were left to be worked out through future decisions. In particular, it was acknowledged that “private facts” did not have a simple test, but were nevertheless facts known to some people but not the world at large – in much the same way as information may have the quality of confidence. Also, it was thought that the criterion of the publicity being “highly offensive to a reasonable person” would exclude trivial claims. Since the action was based on humiliation, distress or loss of dignity it was considered unnecessary to require some form of personal injury such as a recognised psychiatric injury or economic loss. 259 Legitimate public concern – as opposed to information which is merely of interest to the public – was recognised as an appropriate defence. 260 This defence would be analogous to the public interest defence to breach of confidence in the United Kingdom. It should allow judges to determine the appropriate balance in the circumstances being considered between freedom of expression and the plaintiff’s claim to privacy. For example, where there is a risk of serious injury, as in Venables, a “very considerable level” of legitimate public concern would be needed to outweigh it. 261 While the third judge of the majority, Tipping J, “generally agreed” with the joint judgment, he preferred to use “highly offensive to a reasonable person” as a test for whether a plaintiff has a reasonable expectation of privacy about particular information rather than the extent of publicity. Further he thought that the plaintiff ought to show that he or she had a reasonable expectation of privacy, unless the information or material constituted a matter of the legitimate public concern justifying publication in the public interest, rather than legitimate public concern constituting a defence to be established by the defendant. 262 Although the New Zealand position was strongly influenced by the American tort of public disclosure of private facts, in the end result it is not greatly different from the position prevailing in the United Kingdom, without needing to rely on transformation of the equitable action for breach of confidence. 263 The New Zealand Court of Appeal did not think it necessary to comment on whether there ought to be other forms of privacy protection such as those stated in the American Second Restatement. 258 259 260 261 262

263

Hosking v Runting [2005] 1 NZLR 1 at [117]. This was therefore akin to the formulation of the tort in the Second Restatement. Hosking v Runting [2005] 1 NZLR 1 at [128]. As Prosser did and as adopted in the Second Restatement formulation. Hosking v Runting [2005] 1 NZLR 1 at [134]. Hosking v Runting [2005] 1 NZLR 1 at [259]. In Brown v Attorney-General [2006] NZAR 552 at [57] the differences in formulations were acknowledged but did not give rise to concern because the outcome would be the same under either approach. See Hosking v Runting [2005] 1 NZLR 1 at [90], [148] per Gault P and Blanchard J, [247] per Tipping J.

566 [8.600]

Chapter 8 – Privacy

Subsequent developments [8.610] Hosking v Runting was decided before the establishment of the Supreme Court of New Zealand as the highest court in the New Zealand hierarchy. That court has not yet had the opportunity to properly consider the principles of privacy established in that case. Privacy was raised as one of the issues in the 2008 Supreme Court case Rogers v Television New Zealand, 264 where in the course of a videotaped police interview a man charged with murder carried out a reconstruction of the way he said he had committed the murder. Police passed a copy of the video tape to TVNZ on condition that it not be broadcast until after the man’s trial. Subsequently the reconstruction and recording of it were held to be inadmissible as evidence. After the trial the accused man became aware that TVNZ intended to broadcast the recording and applied for an injunction preventing it from doing so, relying on a number of grounds including the potential breach of his privacy. The case proceeded as an urgent hearing with no pleadings. An injunction was granted by the High Court but discharged on appeal by the Court of Appeal. On appeal to the Supreme Court, several judges expressed a reluctance to fully consider the privacy principles pronounced by the majority in Hosking v Runting in the absence of pleadings and the proper identification and argument of the issues. 265 Issues regarded as remaining open included whether the tort of privacy required not only a reasonable expectation of privacy but also whether the publicity needs to be “highly offensive” as suggested. It was noted that the test had been doubted by members of the House of Lords in Campbell v MGN. 266 Another significant issue raised by the facts was the relevant time at which expectations of privacy must be assessed – the time of the activity said to be private or the time of publication. 267 Nevertheless, a majority of the Supreme Court were prepared to proceed on the basis that Hosking v Runting represented the law of New Zealand. They decided that the relevant time for assessing whether there was a reasonable expectation of privacy was at the time of the activity said to be private. 268 That view was determinative of the privacy claim, since it was held that it must be well understood by a person who elects to make a statement to the police that the very purpose of the police is to put the statement into evidence before a court where it will become public knowledge. As a court record it will then remain available for search in accordance with court rules. It would be fanciful to suggest that such a statement maker would be influenced in deciding whether or not to make a statement by the belief that the evidence might possibly be ruled inadmissible and then not given in court.

264

Rogers v Television New Zealand Ltd [2008] 2 NZLR 277.

265 266 267 268

Rogers v Television New Zealand Ltd [2008] 2 NZLR 277 at [23]-[26] per Elias CJ, [151] per Anderson J. Rogers v Television New Zealand Ltd [2008] 2 NZLR 277 at [25]. Rogers v Television New Zealand Ltd [2008] 2 NZLR 277 at [26]. Rogers v Television New Zealand Ltd [2008] 2 NZLR 277 at [48] per Blanchard J, [63] per Tipping J and [104]-[105] per McGrath J.

[8.610] 567

Australian Media Law

Lower courts have since applied Hosking v Runting or treated it as representing the law regarding breach of privacy. 269 For example, it has been held that: • There was a reasonable expectation of privacy in relation to a photograph and street address placed on a flyer warning of the presence of a convicted paedophile in the neighbourhood, and publicity given to those private facts that would be considered highly offensive to an objective reasonable person because of the high risk of vigilante response, which could have been reasonably expected, and which destroyed any hope that the plaintiff had had in living quietly in the community after his release from prison. 270 • While there may not be a reasonable expectation of privacy for a victim of a motor vehicle accident given fleeting coverage on the nightly news, the opposite may be true for prolonged footage shown on a rescue television reality series, which showed close-ups and an accumulation of intimate and highly personal communications. However, such footage would not be considered highly offensive to an objective reasonable person when faces were pixelated, there was no reference to surnames or identification of their vehicle and no other information, such as the possible cause of the accident, that depicts the victim in a bad light. 271 • The principal of a high profile private school could have no reasonable expectation of privacy with regard to an allegation that his past conduct was being investigated by the police. In any event, while public disclosure of such an investigation would undoubtedly be embarrassing to such an individual and distressing for his family it would not be reasonable to describe such disclosure as offensive or objectionable. 272 • While it was arguable that a person who has visited a club and used the services of a sex worker had a reasonable expectation of privacy as to those facts, there could be no such expectation regarding disclosure of marital or parental status since they are matters of public record. 273 These cases also recognised that legitimate public interest would be a defence to a claim for breach of privacy. Accordingly, distribution of a flyer warning of a convicted paedophile in the vicinity may have been regarded as being in the public interest, so that those for whom there may be a potential source of danger could make arrangements to address the risk. However, the provision of a photograph and street name in the flyer would go beyond what was considered to be a legitimate public concern. 274 The defence would also be enlivened where 269

270 271 272 273 274

See, for example, Brown v Attorney-General [2006] NZAR 552 (NZDC); Andrews v Television New Zealand Ltd [2009] 1 NZLR 220 (NZHC); Clague v APN News and Media Ltd [2012] NZHC 2898; C v Holland [2012] NZHC 2155; [2012] 3 NZLR 672; NR v MR [2014] NZHC 863; Faesenkloet v Jenkin [2014] NZHC 1637. Brown v Attorney-General [2006] NZAR 552. Andrews v Television New Zealand Ltd [2009] 1 NZLR 220. Clague v APN News and Media Ltd [2012] NZHC 2898 at [37]-[38]. NR v MR [2014] NZHC 863. Brown v Attorney-General [2006] NZAR 552 at [92]-[93], citing with approval Green Corns Ltd v Claverley Group Ltd [2005] EWHC 958 (newspaper publishing addresses of local houses being used to rehabilitate young child offenders and sufferers of abuse – relief provided effectively prohibiting publication due to perceived risk of vigilante action by members of the community).

568 [8.610]

Chapter 8 – Privacy

a television reality series highlighted the efforts of those involved in rescue services in the context of the public cost of road accidents and the impact of such accidents on rescue teams. 275

Protection from unreasonable intrusion [8.620] Hosking v Runting went no further than the facts considered in that case, which involved public disclosure of private facts. It said nothing as to the possibility of a cause of action that provided protection from an invasion of privacy in the form of an unreasonable intrusion. 276 Whilst not strictly a privacy case per se, the New Zealand Supreme Court considered the question of surveillance in Hamed v The Queen. 277 A majority of the court supported the test for determining whether surveillance of a public place by police amounted to a search as being whether the surveillance involves State intrusion into reasonable expectation of privacy. 278 Subsequently, in C v Holland 279 Whata J in the High Court was called on to decide New Zealand’s first case involving invasion of privacy by way of intrusion upon seclusion. The plaintiff had been surreptitiously filmed by the defendant, her boyfriend, who had installed a camera into a roof cavity above the shower that the plaintiff used. The videos were not published but the plaintiff brought an action for invasion of privacy by virtue of the recording. Whata J held that while invasion of privacy by way of intrusion upon seclusion had never been previously recognised in New Zealand 280 there were a number of reasons for now doing so. Case authorities in the United States, New Zealand, United Kingdom, Australia and Canada and international conventions on human rights demonstrated a consensus that the concept of privacy, linked to personal autonomy, is a value worth protecting. 281 This is reinforced by legislative recognition in New Zealand of expectations of privacy and the right to be secure for unreasonable search and seizure. 282 His Honour thought that it was functionally appropriate for the common law to establish a tort equivalent to the North American tort of intrusion upon seclusion. Affirmation of such a tort was commensurate with the value already placed on privacy and the protection of personal autonomy, and its similarity to the tort recognised in Hosking v Runting was sufficiently proximate to enable an intrusion tort to be

275

Andrews v Television New Zealand Ltd [2009] 1 NZLR 220 at [91]-[92].

276 277 278 279 280

Hosking v Runting [2005] 1 NZLR 1 at [118]. Hamed v The Queen [2012] 2 NZLR 305. Hamed v The Queen [2012] 2 NZLR 305 at [161], [167] per Blanchard J; see also Elias CJ at [10]-[12]; McGrath J at [265]; Gault J at [281]. See also Lorigan v The Queen [2012] NZCA 264 at [22]. C v Holland [2012] NZHC 2155; [2012] 3 NZLR 672 (NZHC). C v Holland [2012] NZHC 2155; [2012] 3 NZLR 672 at [8].

281 282

C v Holland [2012] NZHC 2155; [2012] 3 NZLR 672 at [65], [67]. C v Holland [2012] NZHC 2155; [2012] 3 NZLR 672 at [70].

[8.620] 569

Australian Media Law

seen as a logical extension or adjunct to it. 283 He therefore declared that a tort of intrusion upon seclusion was part of New Zealand law 284 and that to establish a claim a plaintiff would need to show: (a)

an intentional and unauthorised intrusion;

(b)

into seclusion (namely intimate personal activity, space or affairs);

(c)

involving infringement of a reasonable expectation of privacy;

(d)

that is highly offensive to a reasonable person. 285

A legitimate public concern in the information would be a defence to the claim. 286 Requiring the intrusion to be intentional means an affirmative act is needed and that unwitting or careless acts are insufficient, while “unauthorised” excludes consensual or lawfully authorised acts. The reference to intimate personal activity reflects the need to establish intrusion into matters that are most directly related to personal autonomy. Finally, the last two elements parallel the Hosking v Runting requirements, making this tort resonate with existing privacy law. It therefore adopts the boundaries that only private matters are protected and that an intrusion is only objectionable where it is objectively determined, due to its extent and nature, to be offensive by causing real hurt or harm. There is therefore a workable barrier to the unduly sensitive litigant. 287 C v Holland has since been followed. 288

Current protection of personal privacy in Australia [8.630] In the absence of a general tort against invasion of personal privacy in Australia, piecemeal protection may be found in a variety of causes of action. For convenience, and using the established jurisprudence in the United States as a guide, these may be broadly grouped as cases involving intrusion, those involving disclosure of facts and other cases.

Intrusion cases [8.640] In Australia there has been a decision recognising a right to privacy in this sense, but only by a lower level court. Otherwise, some protection for solitude may be derived from trespass to land (both as a tort and as a crime), nuisance and various other torts. As already seen, prohibitions on intercepting or recording communications may also be relevant.

283 284 285 286

C C C C

v v v v

Holland Holland Holland Holland

287 288

C v Holland [2012] NZHC 2155; [2012] 3 NZLR 672 at [95]-[97]. Faesenkloet v Jenkin [2014] NZHC 1637

570 [8.630]

[2012] [2012] [2012] [2012]

NZHC NZHC NZHC NZHC

2155; 2155; 2155; 2155;

[2012] [2012] [2012] [2012]

3 3 3 3

NZLR NZLR NZLR NZLR

672 672 672 672

at at at at

[86]. [93]. [94]. [96].

Chapter 8 – Privacy

Invasion of privacy [8.650] A tort of privacy was recognised for the first time in Australia in the Queensland District Court case Grosse v Purvis. 289 The case involved intrusion on solitude in the form of a prolonged course of stalking of the plaintiff by her former lover, including loitering near her places of residence, work or recreation, instances of unauthorised entry to her house and yard, offensive telephone calls and the use of offensive language and behaviour to her, her friends and colleagues. Skoien SJDC saw the tort he was recognising as having four elements: • a willed act by the defendant, • which intrudes upon the privacy or seclusion of the plaintiff, • in a manner which would be considered highly offensive to a reasonable person of ordinary sensibilities, • which causes the plaintiff detriment in the form of mental, psychological or emotional harm or distress or which prevents or hinders the plaintiff from doing an act which she is lawfully entitled to do. 290 These elements are based on the American tort of unreasonable intrusion upon solitude or seclusion, as set out in the American Second Restatement. However, the fourth element was the creation of Skoien SJDC, and may be open to doubt since it could be argued that unreasonable intrusion, as a form of trespass, should be actionable without proof of damage. 291 Skoien SJDC acknowledged the possibility of a public interest defence but did not see a need to consider any defences in the circumstances. 292 The plaintiff was awarded $178,000 in compensatory, aggravated and exemplary damages. 293 The defendant lodged an appeal to the Queensland Court of Appeal, but the parties settled before the case was heard.

289

Grosse v Purvis [2003] QDC 151; [2003] Aust Torts Reports ¶81-706. See also Butler, “Personal privacy: Boldly going where no Australian court has gone before” (2003) 24 QL 72 (Part I), (2004) 25 QL 183-187 (Part II).

290 291

Grosse v Purvis [2003] QDC 151; [2003] Aust Torts Reports ¶81-706 at [444]. Platt v Nutt (1988) 12 NSWLR 231; Hutchins v Maughan [1947] VLR 131. In relation to this characterisation of unreasonable intrusion, see further [8.1010]. Grosse v Purvis [2003] QDC 151; [2003] Aust Torts Reports ¶81-706 at [447]. Skoien SJDC also made alternative assessment in respect of other pleaded causes of action that had been upheld (viz trespass, nuisance and intentional infliction of harm based on Wilkinson v Downton [1897] 2 QB 57). Since some, but not all, of the defendant’s conduct was relevant to these actions, the appropriate damages were less than those awarded for invasion of privacy. As an exercise this demonstrates the advantage to a plaintiff of a single, more widely-embracing tort of privacy than the piecemeal protection otherwise available.

292 293

[8.650] 571

Australian Media Law

The subsequent reaction to Grosse v Purvis and the possibility of a tort of unreasonable intrusion has been divided, with some judges reluctant to embrace such a tort 294 but others more open to such a development and not prepared to preclude it. 295

Trespass Elements of the tort [8.660] The tort of trespass may be the relevant means of redress in cases where the invasion of a person’s personal privacy involves an intrusion upon that person’s land or premises. 296 A trespass to land is committed where there is an unlawful interference with land which is in the possession of another. Since the tort is based on possession, a tenant rather than a landlord would be the appropriate plaintiff. 297 Even a person who has no legal title to the land and who is himself or herself in wrongful occupation as regards another, such as a squatter, is in possession of land for the purposes of being able to sue for trespass. 298 By the same token, a person without possession, such as a visitor, someone who takes temporary refuge in premises, or child member of the family 299 is unable to bring an action for trespass to land. A plaintiff who has a right to immediate possession is deemed on re-entry of the land to have been in possession ever since the right to entry accrued, and may therefore sue for any trespasses committed by third parties between that time and the entry. 300

294

295

296

297 298 299

300

See, for example, Kalaba v Commonwealth [2004] FCA 763 at [6] per Heerey J; Chan v Sellwood [2009] NSWSC 1335 at [37] per Davies J; Giller v Procopets (2008) 24 VR 1 at 35–6 per Ashley JA, 106–7 per Neave JA. Gee v Burger [2009] NSWSC 149 at [53] where McLaughlin AsJ described an unreasonable intrusion tort as “arguable”. Cf Maynes v Casey [2010] NSWDC 285 where Sidis DCJ noted the reluctance of the court in Giller v Procopets (2008) 24 VR 1 to recognise a tort of privacy, but nonetheless found the elements listed in Grosse v Purvis were not established on the facts. On appeal the New South Wales Court of Appeal thought that Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 “may well lay the basis for development of liability for unjustified intrusion on personal privacy, whether or not involving breach of confidence” but that due to the findings of fact the case was not an appropriate vehicle to consider possible developments of the law with respect to intentional invasion of privacy: Maynes v Casey [2011] NSWCA 156 at [34]-[36]. There may also be instances of media defendants committing trespass to person, for example, where a media “scrum” comes into contact with the body of the person who is the subject of the scrum or some bystander who unwittingly is trampled by the scrum. Rodrigues v Ufton (1894) 20 VLR 539. Although no action would lie against the true owner: NRMA Insurance Ltd v B&B Shipping and Marine Salvage Co Ltd (1947) 47 SR (NSW) 273. Cf Khorasandjian v Bush [1993] 3 WLR 476, where a daughter was held to have title to sue for nuisance but was overruled by the House of Lords in Hunter v Canary Wharf Ltd & London Docklands Development Corporation [1997] AC 655 on the ground that she did not have possession or a right to immediate possession. Ebbells v Rewell [1908] VLR 261; Wynne v Green (1901) 1 SR (NSW) 40.

572 [8.660]

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Relevant media conduct [8.670] Media conduct that may attract the law of trespass to land includes entering land without consent, remaining on land after consent has been withdrawn, leaving objects on land, and filming, photographing or observing from other premises, public areas or from the air. Not all of this conduct may result in a remedy for trespass to land. [8.680] Entering land without consent. A trespass to land is committed whenever a person without excuse and without consent or invitation of a landholder enters that holder’s property. 301 The consent of the holder may be express or implied. 302 The High Court has held that a landholder grants an implied licence related to the means of access, whether path, driveway or both, leading to the entrance of the premises. If (1) the path or driveway leading to the entrance of the premises is unobstructed and with any entrance gate unlocked, and (2) there is no notice or other indication that entry by visitors generally or particular designated visitors is forbidden or unauthorised, then there will be an implied licence in favour of any member of the public to go onto the path or driveway to the entrance for the purpose of lawful communication with, or delivery to, any person in the premises. 303 Such an implied licence would be extended whether the premises are an ordinary suburban dwelling house or business premises. 304 It follows that a journalist may enter domestic or business premises by the access leading to the entrance for the purpose of communication with any person in the premises, which would include seeking an interview with that person. There would be no licence or consent, however, to a foot-in-the-door “walk-in” with cameras rolling and for the purpose of subjecting persons who are on the premises to a harassing interrogation, including assertions that some wrongdoing had been committed. This will be the case even if could be established that the subject matter of the investigation was of great public importance or interest. 305 The media has no power to enter property to pursue the truth, let alone simply to pursue a “good story”. 306 The attitude of the courts was reflected by the following words of a magistrate who was considering an attempt to justify a “walk-in” as being in the “public interest”: It may well be in the interest of the TV station’s ratings, to cater for the morons of this world who enjoy the spectacle of the discomfort of those branded by the TV executives as wrongdoers, and in the privacy of their own home to boot! It can not be in the public interest that such gutter

301

302 303 304 305 306

Coco v The Queen (1994) 179 CLR 427 at 435. In Grosse v Purvis [2003] QDC 151; [2003] Aust Torts Reports ¶81,706 trespass was an alternative finding to the invasion of privacy for some of the defendant’s behaviour. Barker v The Queen (1983) 153 CLR 338. Halliday v Nevill (1984) 155 CLR 1 at 7-8. See also Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457; TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 at 346. Emcorp Pty Ltd v Australian Broadcasting Corporation [1988] 2 Qd R 169 at 174; Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457 at 461. TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 at 346-347.

[8.680] 573

Australian Media Law journalism be the means by which alleged wrongdoers are brought to justice. We might as well scrap the courts, repeal the laws and leave it to the Television Stations to control the country. 307

Our society jealously protects the individual against a police officer freely entering a home or office armed with a video to search for evidence of the commission of an offence. It would be unthinkable if, under the guise of freedom of speech, the media were allowed to engage in precisely the same conduct, particularly in a situation where competition for ratings was a motivating factor. 308 Such entry by the media constitutes trespass from the moment of entry. 309 The implied licence or consent also cannot be relied upon for entry to seek an interview where the proposed subject has previously and unequivocally stated that he or she does not wish to be interviewed. 310 Indeed, the entry will be unlawful in circumstances in which it would be reasonable to infer that the reporter knew or understood that consent for an interview would not be granted. 311 It makes no difference if the media is accompanying police or some other authority at the time. 312 Otherwise, it will be a question of fact whether a person who is given express or implied permission to enter premises for a particular purpose, acts outside the scope of that permission and commits a trespass by entering the premises for a different purpose. 313 [8.690] Remaining on land or premises after consent withdrawn. A trespass will be committed if a person who has entered premises with an express or implied permission fails to leave within a reasonable time after the occupier revokes the permission. Accordingly, a journalist who has obtained express consent to enter premises, for example to conduct an interview, is obliged to leave within a reasonable time of that consent being withdrawn.

307 308 309 310 311 312 313

Magistrate Ward in Willis v Wilkinson (unreported, ACT Magistrates’ Court, 3 March 1994) noted by J Hoogstad in (1995) 2 Media Law Reporter 59. Emcorp Pty Ltd v Australian Broadcasting Corporation [1988] 2 Qd R 169 at 170-174; adopted in Rinsale Pty Ltd v Australian Broadcasting Commission (1993) Aust Torts Reports 81-231 at 62,381. Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457; Emcorp Pty Ltd v Australian Broadcasting Corporation [1988] 2 Qd R 169. Rinsale Pty Ltd v Australian Broadcasting Corporation (1993) Aust Torts Reports 81-231; TV3 Network Services Ltd v Broadcasting Standards Authority [1995] 2 NZLR 720 at 732. TV3 Network Services Ltd v Broadcasting Standards Authority [1995] 2 NZLR 720 at 732; TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 at 348. TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 at 348. See, for exampe, Whiskisoda Pty Ltd v HSV Channel Seven Pty Ltd (unreported, Vic Supreme Court, McDonald J, 5 November 1993) (journalist and camera crew from Real Life current affairs program entered a hotel with hidden camera in order to record footage of nude tabletop dancing – the premises had signposted that no filming was permitted); TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 (journalist and camera crew from A Current Affair accompanying officers from the Environmental Protection Authority on a raid of the plaintiffs property – plaintiff’s words “hang on until I’ve got a statement to make” followed by “stop what you are doing” to the camera crew held not to operate retrospectively to authorise continued presence and filming).

574 [8.690]

Chapter 8 – Privacy

Similarly, the implied licence to enter premises by the access leading to the entrance may be expressly or impliedly revoked by the occupier of the premises. 314 [8.700] Leaving objects on land or premises. A continuing trespass is committed where an object is placed and left on land or premises, without the consent of the occupier. 315 Therefore, the secreting of a listening device or hidden camera on the plaintiff’s land or premises would amount to a continuing trespass. 316 [8.710] Filming, photographing or observing from other premises. No trespass is committed where there is no entry onto the land or premises. A defendant does no wrong to a plaintiff by looking at what takes place on the plaintiff’s land from other premises. 317 Similarly, filming or photographing land or premises without entering the land or premises does not amount to trespass. 318 [8.720] Filming, photographing or observing from the air. An occupier’s rights are not limited to the surface of land but also extend above and below ground. However, “above ground” does not extend to unlimited air space. Instead, it is limited to the height of an “ordinary user”. The question of whether there is a trespass when there is an incursion into air space is not whether the incursion actually interferes with the actual use of the land at the time, but rather whether it is of a nature and at a height which may interfere with the ordinary uses of the land which may be undertaken. 319 An aircraft flying at normal height will therefore not impinge upon the height of ordinary user and will not constitute a trespass, even where the purpose of flying over the land or property was to film, photograph or observe that land or property. 320 This common law is supported by legislation which provides that a mere transient invasion of air space by aircraft in ordinary flight does not amount to trespass or nuisance. 321 A different result may come where there is an incursion by an aircraft into the air space at a height which may interfere with the ordinary user of the land. 322 Accordingly, a photographer hovering in a helicopter in order to film or photograph land or premises, or proceedings thereon, may be at risk of committing an infringement of airspace amounting to trespass to land. 314

315 316 317

318 319 320 321 322

Halliday v Nevill (1984) 155 CLR 1; see also Church of Scientology Inc v Transmedia Productions Pty Ltd (1987) Aust Torts Reports 80-101 (reporter and film crew entering premises accompanied by family members were asked to leave). Hudson v Nicholson (1839) 5 M&W 437; 151 ER 185; Konskier v Goodman [1928] 1 KB 421. Coco v The Queen (1994) 179 CLR 427 at 439. See also the prohibition on recording or publishing material obtained by listening device or surveillance device: [8.150]-[8.430]. Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479, affirmed Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414; cf Haisman v Smelcher [1953] VLR 625 (“peeping tom” convicted of an offence when entering an enclosed garden in order to look through a bedroom window at the female occupant of the premises getting undressed). Bathurst City Council v Saban (1985) 2 NSWLR 704; Sports and General Press Agency v “Our Dogs” Publishing Co Ltd [1916] 2 KB 880, affirmed [1917] 2 KB 125. LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490 at 495-496. Bernstein v Skyviews and General Ltd [1978] QB 479. Civil Aviation (Damage by Aircraft) Act 1958 (Cth); Damage by Aircraft Act 1952 (NSW); Wrongs Act 1958 (Vic); Damage by Aircraft Act 1964 (WA); Damage by Aircraft Act 1963 (Tas). Bernstein v Skyviews and General Ltd [1978] 1 QB 479 at 486.

[8.720] 575

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Remedies [8.730] Damages. Trespass is actionable per se, that is without the need to prove damage was suffered. Generally damages are assessed on the basis of a depreciation in selling value or the cost of reinstating and restoring the property to its original condition. However, such a measure is not appropriate for the types of media intrusion that may amount to trespass to land. In the case of a business, it may be that a plaintiff’s goodwill may not have been affected at all or it may not be possible to demonstrate a fall-off of business. 323 Nevertheless, merely because the plaintiff has suffered no pecuniary loss does not mean that he or she should be entitled to recover merely nominal damages. Indeed, substantial damages may be appropriate to vindicate the plaintiff’s rights. 324 Moreover, depending on the circumstances, a trespass to land may attract aggravated or exemplary damages, where available. Aggravated damages are awarded to compensate for any added injury to the plaintiff’s feelings or dignity resulting from the trespass, 325 while exemplary damages are awarded in order to punish the defendant and to demonstrate the court’s disapproval of a contemptuous disregard of the plaintiff’s rights inherent in the trespass. 326 The power of the mass media in comparison with an individual is a material consideration when determining whether conduct should be punished or deterred. 327 Example

TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd [8.740] TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd (2008) 71 NSWLR 323 A producer from the A Current Affair program telephoned the managing director of a home builder, against whom allegations of defective building practices had been made by former customers. The producer made an appointment, ostensibly to discuss the construction of a home. The producer attended the appointment with a man posing as her husband, who in fact was a reporter on the program. He carried a bag which concealed a camera and recorder and, by pre-arrangement, excused himself to answer his mobile phone. Instead he walked to the front of the building and admitted a film crew with cameras and a microphone. At that point, with cameras running, the reporter confronted the managing director and insisted that he answer questions. 323

Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457 at 464.

324

Plenty v Dillon (1991) 171 CLR 635 at 645; Grosse v Purvis [2003] QDC 151; [2003] Aust Torts Reports ¶81-706 ($25,000 compensatory damages for emotional upset and annoyance plus $25,000 aggravated damages). Greig v Greig [1966] VR 376 (aggravated damages awarded where the defendant secreted a microphone in a defendant’s brother’s lounge room to tape the housekeeper’s conversations in order to demonstrate her true nature to defendant’s brother); TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 ($25,000 aggravated damages awarded where the defendant’s reporter and film crew confronted the plaintiff with cameras rolling and indicated that it was filming for the purpose of broadcast to the public at large).

325

326

327

XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd (1985) 155 CLR 448; Carmyllie Pty Ltd v Mudgee Shire Council (unreported, Vic Supreme Court, Lusher J, 15 November 1984); Coles-Smith v Smith [1965] Qd R 494. TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 at 366.

576 [8.730]

Chapter 8 – Privacy TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd cont. The trial judge held that the entry of the camera crew admitted to the premises by the reporter constituted a trespass irrespective of the misrepresentation. On appeal against the size of the damages awarded, the New South Wales Court of Appeal held that the case was an appropriate one for an award of not only general damages but also aggravated and exemplary damages. The general damages were awarded for vindication of the plaintiffs’ right to exclusive occupation of the land. The aggravated damages were compensation for the hurt feelings, humiliation and affront suffered by the plaintiffs. These are distinct matters. Further, the defendants engaged in conscious wrongdoing. This included the calculated deception in order to gain entry to the premises; the deception and manoeuvre adopted to admit the camera crew; a delay in leaving when asked to (including the reporter and camera crew hovering around the front door while the reporter told the managing director that it would be better to answer questions rather than running away); the making and general allegations of poor work when no prior notice had been given during negotiations for an interview; the knowledge that the plaintiffs had received excellence in building awards; the confrontation in unfair circumstances where the managing director could not effectively answer his critics; the public appeal of A Current Affair which was significantly enhanced by actual footage of poor work and alleged “guilty men”; and the fact that the defendant was a substantial, well-resourced company with ready access to legal advice and a television station with a large viewing audience. This conscious wrongdoing was in contumelious disregard of the rights of the plaintiffs and was therefore a proper basis for the award of exemplary damages, which are warranted where a tortfeasor manifests a preparedness to infringe the legal rights of others and has commercial reasons to do so. The fact that the defendants successfully defended the plaintiffs’ action for defamation on the grounds of truth and public interest was irrelevant. Those compiling the program had access to information, particularly interviews with persons who complained about building performed by the plaintiffs. The footage of a direct confrontation with an alleged guilty party enhanced the entertainment value of the statement but did nothing to enhance the aspects of public interest or truth of the allegations as protected by the law of defamation. They were therefore not relevant to assessing the size of the damages award for trespass. Accordingly, the court upheld the award of $60,000 general damages and $50,000 aggravated damages. However, it reduced the award of $120,000 for exemplary damages to an amount of $60,000 since the award of $110,000 by means of general aggravated damages, although expressed as compensatory, also had an effect by way of punishment and deterrence. This reduced the need for a further sizeable award for such purposes.

[8.750] It has been suggested that the availability of such damages, particularly exemplary damages, removes any problems there may be for the plaintiff in quantifying damages resulting from the media intrusion. 328 [8.760] Injunction. In the normal case, an injunction against a trespasser may be granted where a trespass to land or premises is threatened, the defendant appears likely to carry out 328

Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457 at 464.

[8.760] 577

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the threat and the plaintiff will suffer irreparable damage if this occurs, or where a defendant has once trespassed and appears likely to repeat the trespass. 329 However, in cases of media intrusions, like the “walk-in” and in-the-face interrogation, a plaintiff more commonly wishes to obtain injunctive relief not to prevent a trespass but rather to prevent the subsequent publication of a film, photograph, tape or interview obtained by the defendant during the course of the trespass. It was held in a series of cases that an interlocutory injunction restraining the publication could be awarded where the circumstances made the publication unconscionable, where irreparable harm would otherwise be suffered by the plaintiff and when the balance of convenience favoured the grant of an injunction. 330 The High Court has now rejected this approach. In ABC v Lenah Game Meats 331 it was held that an injunction cannot be granted in the absence of an underlying cause of action. This was well demonstrated by the facts of the case which involved a media defendant receiving video footage taken by a third party during the course of that third party trespassing on the plaintiff’s property. The plaintiff was held not to be entitled to enjoin broadcast of the footage in the absence of a cause of action against the media defendant. A majority of the court rejected the argument that an allegation of unconscionability could, on its own, be the basis for an interlocutory injunction, either because this would amount to replacing a decision based on principle with one based on discretion 332 or because unconscionability, which is a concept traditionally used to set aside transactions or ground an estoppel, does not operate wholly at large. 333 Where a media defendant conducts a walk-in, an interlocutory injunction may be obtained to restrain the publication of the film, photographs or interview where to do so would be a breach of confidence. Where the material obtained in the course of the trespass is not confidential, the trespass alone will not be a sufficient to ground the interlocutory injunction. The trespass may only result in an injunction against further trespasses. 334 Accordingly, if the product of the trespass is to be restrained, an alternative cause of action must be identified. Gummow and Hayne JJ suggested that this alternative action might be in the form of a remedial constructive trust of the copyright in the material, entitling the plaintiff to obtain a 329 330

331 332 333

334

Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457 at 462. Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457 at 463-464; see also Church of Scientology Inc v Transmedia Productions Pty Ltd (1987) Aust Torts Reports 80-101 at 68,642; Emcorp Pty Ltd v Australian Broadcasting Corporation [1988] 2 Qd R 169; Rinsale Pty Ltd v Australian Broadcasting Corporation (1993) Aust Torts Reports 81-231; Spadtan Pty Ltd v Australian Broadcasting Corporation (unreported, NSW Supreme Court, Brownie J, 9 November 1993); Holiday Concepts Management Pty Ltd v General Television Corp Pty Ltd (unreported, Vic Supreme Court, Beach J, 7 December 1995). Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 218-219 per Gleeson CJ. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 245 per Gummow and Hayne JJ, with whom Gaudron J agreed. Callinan J at 315 based his view on a fiduciary duty created by possession of a tangible item of property; cf Kirby J at 271-276 who was the only judge prepared to uphold an injunction of the basis of unconscionability. D Lindsay, “Playing possum? Privacy, freedom of speech and the media following ABC v Lenah Game Meats Pty Ltd – Part I” (2002) 7 MALR 1 at 5-6.

578 [8.760]

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mandatory order compelling the assignment of the legal interest in the copyright and, in the interim, ordering an interlocutory injunction to prevent any publication. 335 If an interlocutory injunction restraining publication is still possible, and is granted, the media may still be able to publish a variation of the report. For example, the injunction is unlikely to prevent publication of any discussion or occurrence which takes place on a public footpath or street. Further, an injunction is unlikely to restrain a defendant from honestly and reasonably discussing a complaint and any issues claimed to be matters of public concern, provided that in such a presentation the material caught within the ambit of the injunction is not used. 336 In such a case, the plaintiff would be left to seek a remedy under the laws of defamation and/or injurious falsehood. [8.770] Self help. An occupier has a more immediate option available when a person trespasses upon his or her land or premises. Without having recourse to the court an occupier may choose self help, that is he or she may eject any trespasser from the land or premises by the use of such force as is reasonable in the circumstances. 337 The risk for an occupier attempting to exercise this right is that if the force used is deemed to be excessive the occupier may be liable to pay damages to the trespasser for assault and battery, and/or be guilty of committing an assault and battery and be subject to criminal charges. [8.780] Criminal sanctions. In addition to being a civil wrong, trespass may also constitute a criminal offence. 338 The magistrate or judge will normally first determine whether there was a common law trespass, and if so, whether the conduct was sufficiently serious to go beyond a mere matter of civil law compensation, and whether it was deserving of punishment under the criminal law. 339 While each case must be decided in light of its particular circumstances, as a general proposition a trespass to the land and goods of a person known to be deceased is more serious than one to those of a person who is both alive and in a position to take some steps to protect himself or herself. 340 Example

Jenal v Milner [8.790] Jenal v Milner (1994) 11 WAR 264 The deceased was the assailant in a fatal shooting in which he also died. A journalist visited the deceased’s home in order to obtain pictures of him. A next door neighbour 335

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 246–247.

336 337 338

Emcorp Pty Ltd v Australian Broadcasting Corporation [1988] 2 Qd R 169 at 178. Green v Bartram (1830) 4 C & P 308; Moriarty v Brooks (1834) 6 C & P 684. See, for example, Inclosed Lands Protection Act 1901 (NSW), ss 4, 4A; Invasion of Privacy Act 1971 (Qld), s 48A; Summary Offences Act 1953 (SA), ss 17, 17A; Summary Offences Act 1966 (Vic), s 9(1); Police Act 1892 (WA), s 66(13).

339

Jenal v Milner (1994) 11 WAR 264 at 270; Wilkins v Condell [1940] SASR 139 at 152; Willis v Wilkinson (unreported, ACT Magistrates’ Court, Magistrate Ward, 3 March 1994) noted in (1995) 2 Media Law Reporter 59. Jenal v Milner (1994) 11 WAR 264 at 276.

340

[8.790] 579

Australian Media Law Jenal v Milner cont. showed him a rear window where police had earlier gained access. The journalist climbed through the window and later reappeared with a photograph album. A cameraman filmed some of the photographs and the journalist re-entered the premises to return the album. Shortly thereafter the neighbour saw the journalist leaving the premises through the rear door with the album. The journalist was later charged with criminal trespass under the Police Act 1892 (WA), s 66(13). He claimed that he had the impression that the neighbour was looking after the premises and had given him permission to enter. The Full Court of the Western Australian Supreme Court held that the magistrate was correct in holding that the fact that the journalist knew that the owner of the home was deceased was a circumstance relevant to the conduct exceeding a mere matter of civil remedy and warranting punishment under the criminal law. Also relevant was that the journalist had entered the premises twice to remove the album. However, the magistrate was in error in finding that the journalist had a good defence: no reasonable person in the journalist’s position could have believed that a merely concerned neighbour could give permission to enter the premises of a deceased and remove items. The journalist did not have an honest and reasonable mistaken belief. A conviction was therefore to be entered and a criminal penalty imposed. It was also open for a court to grant an injunction preventing publication of a photograph obtained without authority in such circumstances, even where the photograph was returned.

[8.800] Similarly, a journalist seeking to report on the funeral of a youth who was alleged to have been shot by police was convicted of entering Aboriginal land without a permit. The local council had earlier denied access by the media to their community. 341

Nuisance Elements of the tort [8.810] An action for private nuisance may be brought where there is an unlawful interference with the use or enjoyment of land. Trivial interferences are insufficient: damage must be shown in the form of either material damage (including damage to the person) or a substantial and unreasonable interference with the enjoyment of the land. 342 It has been held, in this connection, that the loss of even one night’s sleep through excessive noise is a substantial interference. 343 “Reasonableness” is determined on the basis of “give and take”, 344 by which a reasonable person is presumed to consent to reasonable give and take, 341

342 343 344

Peach v Toohey [2003] NTSA 57 (30 May 2003). While Angel J indicated that ordinarily the offence would warrant “a not insubstantial fine”, it was considered sufficient to only record a conviction against the journalist in light of the circumstances in which he was arrested and had his film and audio seized by police. Munro v Southern Dairies Ltd [1955] VLR 332. Andreae v Selfridge & Co Ltd [1937] 3 All ER 255 at 261 cited with approval in Munro v Southern Dairies Ltd [1955] VLR 332 at 335. Kidman v Page [1959] Qd R 53.

580 [8.800]

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accepting that trivial interferences are merely an incident of life. 345 The court balances a number of factors, namely the locality, the time of the interference, the duration of the interference, the nature of the activities, the availability of alternative methods and, in an exceptional case, the motive of the defendant. Interferences which have in the past been held to give rise to an action in nuisance have included noise, water, fumes, smell and similar inconveniences. The general rule is that an action for nuisance may only be brought by a person who has an interest in the land affected. This has been interpreted as requiring either possession or an immediate right to possession. 346 Relevant media conduct [8.820] Media conduct which might attract the law in relation to nuisance includes making telephone calls to premises, and filming, photographing or observing either from other premises or from the air. [8.830] Telephone calls. Merely telephoning an occupier once or even a few times, perhaps in order to request an interview or to obtain the occupier’s response to a story, will not amount to a nuisance. However, it has been held that harassment by persistent telephone calls, even apart from their content, causes inconvenience and annoyance to the occupier and amounts to an unreasonable interference with the use or enjoyment of the property sufficient to amount to nuisance. 347 [8.840] Filming, photographing or observing from other premises or public ways. It has been held that mere “besetting” such as filming, photographing or watching the plaintiff’s property from other premises without more does not amount to an unreasonable interference with use and enjoyment of the plaintiff’s land. 348 Such conduct is not regarded as operating or producing any effect upon the plaintiff’s land. Indeed, it may be that none of the persons on the land may, at any given moment be aware of the conduct in question. 349 However, such conduct may constitute a nuisance when associated with obstruction, intimidation, molestation, noise, smells, violence or some other objectionable behaviour. 350 Much will depend upon the circumstances. Thus, while a lone photographer or camera crew taking photos on a single occasion will not amount to nuisance, a crowd of media

345

Stormer v Ingram [1978] 21 SASR 93.

346 347

Malone v Laskey [1907] 2 KB 141. Stoakes v Brydges [1958] QWN 5; Alma v Nakir [1966] 2 NSWR 396; cf Khorasandjian v Bush [1993] 3 WLR 476, which was overruled by the House of Lords on the basis of the child plaintiff’s lack of possession or right to immediate possession in Hunter v Canary Wharf Ltd & London Docklands Development Corporation [1997] AC 655. Ward, Lock & Co Ltd v Operative Printers’ Assistance Society (1906) 2 TLR 327. Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 at 493. Sid Ross Agency Pty Ltd v Actors and Announcers Equity Assn of Australia [1971] 1 NSWLR 760; Hubbard v Pitt [1976] 1 QB 142.

348 349 350

[8.840] 581

Australian Media Law

camped beside the plaintiff’s land subjecting it to round-the-clock surveillance may suffice, particularly if it is accompanied by matters such as noise from the throng or bright lights shining on the property. 351 Indeed, if the assembly of media is camped on the footpath and/or street and thereby blocks the plaintiff’s free access to his or her property, there may be an action for public nuisance on the grounds of an unlawful obstruction in the exercise or enjoyment of a right common to all citizens (namely their use of the footpath or street), which causes the plaintiff to suffer damage above and beyond that suffered by the rest of the community. 352 In addition, members of the media who constitute a public nuisance may be guilty of a criminal offence. [8.850] Filming, photographing or observing from the air. Similarly, it has been suggested that while an isolated incident of filming, photography or surveillance being conducted by air would normally not give rise to an action in nuisance, a plaintiff who was subjected to the harassment of constant surveillance of his or her property from the air, perhaps accompanied by the photographing or filming of his or her every activity, may amount to an unreasonable interference with the plaintiff’s enjoyment of their land and amount to an actionable nuisance. 353 Remedies [8.860] Damages. Damages may be obtained where the nuisance results in material damage to the plaintiff’s property. 354 In addition, the plaintiff may recover such consequential losses as are a reasonably foreseeable consequence of the nuisance. These damages might include, in the case of a business, any loss of custom resulting from the interference 355 or, if the plaintiff is forced to relocate due to the interference, the costs associated with that relocation. 356 [8.870] Injunction. Where the interference is ongoing the court may, in addition to damages for the interference that has already occurred, grant an injunction. An injunction is an appropriate remedy to curtail the continuation of persistent telephone calls, 357 “watching and besetting” premises when associated with objectionable behaviour, 358 or harassment by constant aerial surveillance. The position concerning the availability of an interlocutory

351 352 353 354 355 356 357 358

Raciti v Hughes (1995) 7 BPR 14,837 (a defendant monitoring every activity of neighbour, including the use of bright light, was held to amount to nuisance). Attorney-General v PYA Quarries [1957] 2 QB 169; Walsh v Ervin [1952] VLR 361. Bernstein v Skyviews and General Ltd [1978] 1 QB 479 at 489. Moss v Christchurch Rural District Council [1925] 2 KB 750. Andreae v Selfridge & Co Ltd [1937] 3 All ER 255. Evans v Finn (1904) 4 SR (NSW) 297. Stoakes v Brydges [1958] QWN 5; Alma v Nakir [1966] 2 NSWR 396; Khorasandjian v Bush [1993] 3 WLR 476. Hubbard v Pitt [1976] QB 142; Raciti v Hughes (1995) 7 BPR 14,837.

582 [8.850]

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injunction preventing the subsequent publication of material obtained in the course of the nuisance is likely to be no different from that governing the situation where there has been a trespass. 359 [8.880] Self help. Apart from the court remedies discussed above, a person whose use or enjoyment of land is unreasonably being interfered with has the right to do what is necessary to abate the nuisance. Abatement entails the removal of the source of the interference, rather than merely taking steps designed to minimise the harmful effects of that interference. 360 Although the self help remedy of abatement is recognised by the courts, it is a right which if exercised must be used with caution so as to ensure that the plaintiff is not exposed to liability for trespass (whether in the form of assault and battery, or trespass to another’s land or chattels) for what is later adjudged to be an excessive exercise of the right. 361 There may also be a risk of the abater committing a criminal offence in the course of exercising self help.

Misleading or deceptive conduct Prohibition [8.890] Section 18 of the Australian Consumer Law prohibits conduct in trade or commerce that is misleading or deceptive or likely to mislead or deceive. The prohibition forms part of the law of both the Commonwealth and the States/Territories. 362 For these purposes, a representation may be made in trade or commerce even though it is not in the trade of the person making the representation, so long as it is in the trade of the person to whom the representation is made. 363 Relevant media conduct [8.900] While the prohibition does not operate to provide a remedy for a breach of privacy per se, it may be relevant to conduct by the media associated with such an intrusion. For example, if in the course of compiling a story a journalist or media organisation engages in deceit in order to gain access to another person’s premises or to obtain an interview then that person may be entitled to a remedy for a breach of the section. This may be argued as being in the trade or commerce of the media defendant where there can be no story unless the appropriate interviews are secured, thereby making the securing of such interviews central to the trading or commercial activity of the media defendant in publishing the story. 364 Even if

359 360 361

See [8.760]. Young v Wheeler (1987) Aust Torts Reports 80-1267 (NSW SC). Lemmon v Webb [1895] AC 1.

362

Competition and Consumer Act 2010 (Cth), Sch 2; Fair Trading Act 1992 (ACT) s 7; Fair Trading Act 1987 (NSW), s 28; Consumer Affairs and Fair Trading Act (NT), s 27; Fair Trading Act 1989 (Qld), s 16; Fair Trading Act 1987 (SA), s 14; Australian Consumer Law (Tasmania) Act 2010 (Tas), s 6; Fair Trading Act 1999 (Vic), s 9; Fair Trading Act 1987 (WA), s 19.

363 364

Houghton v Arms (2006) 225 CLR 553 at 565. Hearn v O’Rourke (2003) 129 FCR 64 at [10]-[11] (Finn and Jacobson JJ).

[8.900] 583

Australian Media Law

such behaviour were not regarded as being in the “trade or commerce” of the media defendant, 365 if it is done in order to reveal alleged business malpractices then it may be in the “trade or commerce” of the plaintiff. 366 Example

TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd [8.910] TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd (2008) 71 NSWLR 323 A producer from A Current Affair made an appointment with the managing director of a home builder, ostensibly for the purposes of discussing the construction of a home. The producer attended the appointment with a reporter who posed as her husband. The reporter carried a bag which concealed a camera and recorder. Both the producer and reporter indicated that they were interested in building a home, and made statements to the effect. By prearrangement, the reporter excused himself to answer his mobile phone when it rang. He then admitted a film crew with cameras and microphone and began demanding that the managing director answer questions. The New South Wales Court of Appeal held that even if it could be argued that the deception exercised by the producer and reporter in order to gain access to the premises and to set up the managing director for the ambush interview were merely preliminary to the defendant’s conduct in trade or commerce (ie the broadcast of the story), the misrepresentation did occur in the trade or commerce of the defendants (ie the building of homes). The communications purported to be for the sole purpose of acquiring services of the plaintiffs as builders. They therefore bore the requisite trading or commercial character. Moreover, the defendants were unable to rely on the media “safe harbour” defence provided by the equivalent of s 19 of the Australian Consumer Law for information published by an information provider 367 because it required a close correspondence between the matter published and the information provided by the business. Statements made in the course of an investigation, even where there is an ultimate intent to publish something, have no such correspondence. While they may be in connection with, or for the purposes of, the business of providing information they do not occur “in the course of carrying on” that business, as required by s 19.

365 366 367

Hearn v O’Rourke (2003) 129 FCR 64 at [39] where Dowsett J held that preliminary steps such as arranging interviews could not be described as commercial in character. TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd (2008) 71 NSWLR 323 at 333. See further [3.1420].

584 [8.910]

Chapter 8 – Privacy

Other causes of action [8.920] Depending on the circumstances, other causes of action may provide a remedy for intrusion by the media. These include a new tort of harassment, the possibility for which was recognised by Gummow and Hayne JJ (Gaudron agreeing) in ABC v Lenah Game Meats, 368 intentional infliction of harm, 369 negligent infliction of psychiatric harm and malicious falsehood. 370

Disclosure cases [8.930] Currently, in Australia, public disclosure of private facts may be prevented by an action for breach of confidence, or may be the consequence of certain aspects of defamation law.

Confidentiality [8.940] As discussed in Chapter 7, personal secrets may be protected where an obligation of confidentiality is owed to the plaintiff. 371 It was also seen that English courts have ventured beyond the position originally contemplated by equity of a duty of confidence extending to those who know or ought to realise that the information is subject to an obligation of confidence. 372 Instead they have recognised that it is possible for action to succeed where the information has been obtained by surreptitious means irrespective of any pre-existing confidential relationship. 373 Indeed, one English judge went so far as to venture that: “The doctrine of confidentiality exists to support the individual’s right to privacy” 374 and in ABC v Lenah Game Meats Gleeson CJ favoured an English-style extension of the action for breach of confidence in lieu of a separate tort protecting privacy. 375 Under traditional formulations of

368 369 370 371 372

373

374 375

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 255; Grosse v Purvis [2003] QDC 151; [2003] Aust Torts Reports ¶81-706 at [448]-[451]. Wilkinson v Downton [1897] 2 QB 57; Carrier v Bonham [2002] 1 Qd R 474; cf Giller v Procopets (2008) 24 VR 1. Kaye v Robertson (1991) 19 IPR 147; [1991] FSR 62. See [7.60]. See also J Katz, “Sex, lies, videotapes and telephone conversations: The common law of privacy from a New Zealand perspective” [1995] 1 European Intellectual Property Review 6, esp at 13-15. Coco v AN Clark (Engineers) Ltd [1969] RPC 41 at 48. This principle was applied in the case of surreptitiously taken photographs in Shelley Films v Rex Features Ltd [1994] EMLR 134; Creation Records Ltd v News Group Newspapers Ltd (1997) 39 IPR 1. Hellewell v Chief Constable of Derbyshire [1995] 4 All ER 473 at 476; Venables v News Group Newspapers [2001] 1 All ER 908; A v B plc [2003] QB 195; [2002] 2 All ER 545 (CA); Campbell v Mirror Group Newspapers Ltd [2003] 1 All ER 224; Douglas v Hello! Magazine [2003] EWHC 786 (Ch) (11 April 2003). Bank of Crete SA v Koskotas (No 2) [1993] 1 All ER 748 at 753. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 224-226. Kirby J did not find it necessary to express a view on the issue: at 278-279.

[8.940] 585

Australian Media Law

the cause of action, the obligation of confidentiality binds not only an initial confidant, but also any person who acquires information with notice of its confidentiality. Further, the action is only available to the confider of the information. 376 The prospects of an action for breach of confidentiality being available as a means of redress for at least some cases of invasion of privacy have been assisted by the recognition by the Victorian Court of Appeal in Giller v Procopets 377 that damages may be awarded for mental distress suffered as a consequence of such a disclosure. Example

Giller v Procopets [8.950] Giller v Procopets (2008) 24 VR 1 The plaintiff and defendant lived in a de facto relationship. The defendant videotaped sexual activity between them, initially without her knowledge but subsequently with her knowledge and acquiescence. After their relationship ended the plaintiff made a number of claims, including a claim relating to the distress and humiliation she felt as the result of the defendant showing and threatening to distribute a video of their sexual activities. The plaintiff relied on three separate causes of action: breach of confidence, intentional infliction of mental harm and breach of privacy. The Victorian Court of Appeal held that persons indulging in a sexual activity in the privacy of their own home created a confidential relationship during such activity. It involved a relationship of mutual trust and confidence which was to be shared between the persons but not divulged to others without the consent of both parties. The defendant breached the relationship of confidence by showing the videotape to others without the plaintiff’s consent. While the plaintiff had failed to show she had suffered a recognised psychiatric injury, as required to establish the tort of intentional infliction of harm, damages could be awarded for breach of confidence for mere distress, either as equitable compensation or under the Victorian equivalent of Lord Cairns’ Act in lieu of an injunction.

[8.960] Ashley JA based his decision that damages were available for breach of confidence on a number of grounds, essentially that: • in such a case equity was not dealing with a careless act but rather intentional conduct in defiance of a good faith obligation of confidence; • it would be anomalous if, predictable distress and embarrassment having occurred, no compensation was available when an anticipated breach would have attracted injunctive relief; 376 377

See [7.380]. Giller v Procopets (2008) 24 VR 1.

586 [8.950]

Chapter 8 – Privacy

• equity was starting with a “fresh slate”, unhampered by the historical impediments that had hindered the development of the common law, such as floodgates arguments, perceived difficulties of proof and perceived concerns about the ability of juries to separate the real from the fictitious; and • damages for distress were available in common law in actions for defamation, and there was considerable similarity between the distress that is consequent upon a defamation of a person’s reputation and the distress that ensues by reason of material disclosed in breach of confidence. 378 Neave JA was influenced by the House of Lords decision in Campbell v MGN Ltd, and other English cases which have awarded damages for breach of confidence. She thought that if equitable compensation could not be awarded for distress then a claimant whose confidence was breached before an injunction could be obtained would have no effective remedy. Alternatively, the award could be seen as damages under the Victorian equivalent of Lord Cairns’ Act, which her Honour held should be available when the essence of the plaintiff’s case was that he or she had been embarrassed by the exposure of private information, rather than that the defendant had profited from the use of the information. 379 Giller v Procopets is not without difficulties as a means of redress for invasions of privacy, particularly in the context of the media disclosing private information. In relying on the English cases Neave JA acknowledged that they were primarily concerned with the balance to be struck between the competing human rights recognised by the European Human Rights Convention, namely the right to privacy under Art 10 and the right to freedom of expression under Art 8. Nevertheless, she did not believe that that in any way “[weakened] the force of those decisions of high authority in endorsing the proposition that, if a breach of confidence is shown to have occurred, damages … could be awarded for distress falling short of psychiatric injury caused by a breach of confidence”. 380 Aside from the Convention, the orthodox Australian view is that while the administration of common law and equity has become fused, they are nevertheless based upon different systems of justice, or as it is said “the two streams of jurisprudence, though they run in the same channel, run side by side and do not mingle their waters”. 381 Therefore there is some degree of doctrinal angst associated with awarding compensatory damages – normally the province of the common law – for an equitable cause of action. By contrast, the English courts would seem to have less difficulty accepting a single law of obligations which integrates equity and the common law. 382 Neave JA sidestepped this

378 379

Giller v Procopets (2008) 24 VR 1 at [148]-[153]. Giller v Procopets (2008) 24 VR 1 at [423]-[424], [428].

380 381

Giller v Procopets (2008) 24 VR 1 at [418]. See, for example, Felton v Mulligan (1971) 124 CLR 367 at 392. It is worth noting that two of the authors (one current, one former) of a text which is a key proponent of this view, RP Meagher, JD Heydon and MJ Leeming, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (4th ed, 2002) are currently members of the High Court of Australia. See, for example, United Scientific Holdings Ltd v Burnley Borough Council [1978] AC 904 at 924-925.

382

[8.960] 587

Australian Media Law

issue by styling the compensatory damages awarded for breach of compensation as “equitable compensation or damages in lieu of injunction”. 383 A significant problem with a general application of Giller v Procopets is where without forewarning the media disseminates private information. An action for breach of confidence requires that the information had the necessary quality of confidence. While limited disclosure, such as occurred in Giller v Procopets, will not destroy the quality of confidence, once the information enters the public domain no action may be maintained. By their nature, disclosures by the media will rarely involve a limited disclosure. 384 More often disclosure by the media will mean that “the genie is out of the bottle”. 385 Nevertheless, such a situation did not deter Hampel J in the Victorian County Court from recognising breach of confidence as a ground for recovery in Doe v Australian Broadcasting Corporation. 386 The case concerned a national radio broadcaster which, in breach of the statutory prohibition against publication of identifying particulars of victims of sexual assault, broadcast the name of the plaintiff and other details of her rape by her husband, for which he was convicted and imprisoned. In doing so, her Honour applied the English approach as also representing the common law development of breach of confidence in Australia. 387 Pursuant to this view, it is no longer necessary for there to be a relationship of trust and confidence in order to protect confidential information since the obligation of confidence extended to a wider range of people and was defined by reference to the circumstances, not a relationship. 388 Her Honour thought that since the underlying value was no longer enforcing the duty of trust arising from a relationship but instead concerned protecting confidential information from publication, it followed that a breach of confidence occurred not because of a breach of a duty of trust arising out of a relationship but because it would rob the person to whom the information relates of their right to keep their personal or confidential information private. 389 Here, the information was to be considered private because not only was it about participation in sexual activity – which is generally regarded a private matter – but it was about non-consenting sexual activity. The identity of the perpetrator as the plaintiff’s estranged husband and the statutory prohibition of publication further supported this conclusion. 390 In the language of English courts, the plaintiff had “a reasonable expectation of privacy” in the circumstances. Like the Victorian Court of Appeal would later do in Giller v Procopets, her Honour thought that Talbot v General TV Corp Pty Ltd 391 was good authority for the proposition that damages should be fixed by the method most appropriate to compensate the plaintiff for the loss or 383 384 385

Giller v Procopets (2008) 24 VR 1 at [418]. Cf, for example, G v Day [1982] 1 NSWLR 24. Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 3 WLR 776.

386 387 388 389

Doe Doe Doe Doe

390 391

Doe v Australian Broadcasting Corporation [2007] VCC 281 at [119]. Talbot v General TV Corp Pty Ltd [1980] VR 224.

v v v v

588 [8.960]

Australian Australian Australian Australian

Broadcasting Broadcasting Broadcasting Broadcasting

Corporation Corporation Corporation Corporation

[2007] [2007] [2007] [2007]

VCC VCC VCC VCC

281. 281 at [104], [110]. 281 at [110]. 281 at [115].

Chapter 8 – Privacy

damage caused by the breach. It found that there was no single standard method for assessing damages for breach of confidence. Her Honour held that in this case, which concerned a breach of confidence that caused an affront to the plaintiff’s feelings and resulted in personal injury, the most appropriate method of compensation was an award of monetary damages for pain and suffering. 392 The ABC decided against an appeal against this decision. Accordingly, Hampel J’s assumption that developments in the law of breach of confidence in England justified a reshaping of the basis of the doctrine in Australia remains untested by a higher court of authority. Subsequent cases have been prepared to treat the question as open or arguable. 393

Invasion of privacy [8.970] The judges in Giller v Procopets expressed a reluctance to recognise a generalised tort of unjustified invasion of privacy where there was a recognised cause of action that could be developed and adopted to meet new circumstances. 394 However, without a fundamental reshaping of the doctrinal basis of the action for breach of confidentiality, that cause of action may not be appropriate to cases involving the media placing private information in the public domain and thereby destroying the quality of confidence of that information, unless some artificial elasticity is introduced into the concept as the English courts have done. In that country the question has been expanded to one of whether there is anything left to protect. In addition Giller v Procopets is a poor authority to dictate the appropriate approach to a breach of privacy where there is a genuine public interest in the disclosure. In Doe v Australian Broadcasting Corporation Hampel J of the Victorian County Court was prepared to also recognise a new tort which provided protection from disclosure of private facts as an alternative ground for allowing the plaintiff’s claim for compensation. Her Honour noted that Gillard J at first instance in Giller v Procopets had declined to recognise privacy as allowing recovery in a disclosure-type case on the ground that the law had not developed to that point in Australia but had made no reference to Grosse v Purvis, which had been decided by that time. 395 She observed that if the mere fact that there was no previous decision that applied the developing jurisprudence to similar facts operated as a bar to recognition, the capacity of the common law to develop to reflect contemporary values would be “stultified”. 396 However, like Skoien SJDC in Grosse v Purvis, Hampel J did not think it was necessary to state an exhaustive definition of the cause of action. Accordingly, her Honour found that an action could lie where there was an unjustified publication of personal information which the plaintiff had a reasonable expectation would remain private. She considered “unjustified” to be preferable to “wilful” in this formulation to strike a fair balance between freedom of speech and 392

Doe v Australian Broadcasting Corporation [2007] VCC 281 at [144]-[145].

393 394

See Saad v Chubb Security Pty Ltd (No 2) [2012] NSWSC 1183 at [183]; Dye v Commonwealth Securities Ltd [2010] FCA 720 at [290]; Doe v Yahoo!7 Pty Ltd [2013] QDC 181 at [310]-[311]. Giller v Procopets (2008) 24 VR 1 at [167]-[168] (Ashley JA); [450]-[452] (Neave JA).

395 396

Doe v Australian Broadcasting Corporation [2007] VCC 281 at [160]. Doe v Australian Broadcasting Corporation [2007] VCC 281 at [161].

[8.970] 589

Australian Media Law

protection of privacy. Here the reasonable expectation of privacy already identified, 397 statutory prohibition and absence of public interest meant that the defendants had breached the plaintiff’s privacy and were liable in damages, ultimately assessed at just over $234,000.

Defamation [8.980] As was seen in Chapter 3, the focus of the laws of defamation is injury to reputation. Nevertheless, on occasions they may provide an incidental protection of the plaintiff’s privacy. For instance, defamation may offer a degree of protection for private matters in the form of offering a cause of action where the publication would be likely to lead others to think less of the plaintiff. 398 Prior to the enactment of the uniform defamation legislation, those jurisdictions providing a justification defence that required truth and public benefit (Queensland, Tasmania, and the Australian Capital Territory) or public interest (New South Wales) 399 rather than truth alone prevented a gratuitous destruction of the reputation of a person, particularly a person in public life, by the publication of purely private, possibly embarrassing matters which might otherwise be justified on the basis of simply being true. 400 Fleming described these extended justification defences as, in the absence of an independent action for invasion of privacy against unjustifiable public disclosure of private facts, “at least a second best”. 401 That protection has now been lost by the adoption of a truth alone defence throughout the country. Now only subsidiary protection against publication of private facts is provided by defamation laws in the form of the defences of honest opinion, and to a lesser extent qualified privilege. In relation to the honest opinion, the opinion must relate to a matter in the public domain. The defence therefore covers the public conduct of people but not their private lives 402 except to the extent that it demonstrates whether they possess the qualities, such as honesty and integrity, which a person in public life is expected to exhibit. 403 Naturally this is no defence where the published statement is a statement of fact rather than opinion. Qualified privilege under (NSW) s 30 of the uniform defamation legislation and at common law may be lost when there is common law malice. This might include instances where the publication is not relevant. It is conceivable for a publication which might otherwise be privileged to lose protection on the grounds of the introduction of irrelevant material related to the plaintiff’s private life. 404 397 398 399 400

See [8.960]. Radio 2UE Pty Ltd v Chesterton (2009) 238 CLR 460. See [3.150] Defamation Act 1889 (Qld), s 15 (now repealed); Defamation Act 1957 (Tas), s 15 (now repealed); Wrongs Act 2002 (ACT), s 59 (now repealed); Defamation Act 1974 (NSW), s 15 (now repealed). See Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 165.

401 402

J Fleming (9th ed, 1998), p 614. See, for example, Mutch v Sleeman (1928) 29 SR (NSW) 125 at 137 (member of Parliament criticised for being a “brutal wife-basher”).

403 404

Seymour v Butterworth (1862) 3 F&F 372 at 382; 176 ER 166 at 171. See [3.960].

590 [8.980]

Chapter 8 – Privacy

Other cases [8.990] There is limited protection in Australia for other forms of invasion of personal privacy, as that term is understood in the United States. To the extent that the circumstances do not give rise to an action in defamation, an invasion of privacy in the nature of presenting a person in a false light is generally not covered in Australia. As noted, defamation may provide a remedy where, for example, a false caption to a photograph would be likely to make ordinary, reasonable people think less of the plaintiff. 405 However, in the absence of this test being satisfied, writing an article that, for instance, emphasises that the plaintiff is poor and depressed when the contrary is the case is unlikely to attract a remedy. In relation to appropriation of another’s likeness, there have been doubts expressed whether this is properly a right to privacy or a right to publicity. 406 As Gummow and Hayne JJ (with Gaudron J agreeing) observed in ABC v Lenah Game Meats the plaintiff’s complaint in such a case is more likely to be that the defendant has acted for a commercial gain, and thus deprived the plaintiff of the opportunity of commercial exploitation of that name or likeness for his or her own benefit. 407 This has nothing to do with, for example, a right to human dignity. Australian law provides no protection of a person’s commercial interest in their name or identity. 408 Nevertheless, other causes of action may provide an incomplete coverage. In some cases defamation may provide an avenue of relief, such as where a chocolate manufacturer without authority published an advertisement in the form of a caricature of the plaintiff, a prominent amateur golfer, showing a packet of their chocolate protruding from his pocket. It was held that the plaintiff had been defamed due to the innuendo that the plaintiff had breached his status as an amateur for commercial advantage. 409 The tort of passing-off may provide some recourse. This tort has three requirements, namely: (1) a reputation acquired by the plaintiff; (2) a misrepresentation by the defendant about that reputation; and (3) resulting damage to the plaintiff’s business. 410 The tort has been made out where there has been an unauthorised use of the plaintiff’s photograph or character created by the plaintiff. 411 However, to the extent that conduct may simply amount to “unfair competition”, such a cause of action has been authoritatively rejected in Australia. 412 405

406 407 408 409

410 411

412

See, for example, Ettingshausen v Australian Consolidated Press (1991) 23 NSWLR 443; McDonald v North Queensland Newspaper Co Ltd [1997] 1 Qd R 62; Obermann v ACP Publishing Pty Ltd [2001] NSWSC 1022. See further [3.140]. See, for example, M B Nimmer, “The right of publicity” (1954) 19 Law & Contemp Probs 203. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 256. Ettingshausen v Australian Consolidated Press Ltd (unreported, NSW Court of Appeal, 13 October 1993). Tolley v JS Fry & Sons Ltd [1931] AC 333. See also Ettingshausen v Australian Consolidated Press Ltd (unreported, NSW Court of Appeal, 13 October 1993) (photograph showing plaintiff’s genitals published in magazine without plaintiff’s consent held to be defamatory because it held the plaintiff to ridicule). Balkin and Davis, Law of Torts (3rd ed, 2004), p 719. Henderson v Radio Corporation Pty Ltd (1960) 60 SR NSW 576; Hogan v Pacific Dunlop Ltd (1988) 83 ALR 403; cf 10th Cantanae Pty Ltd v Shoshana Pty Ltd (1987) 79 ALR 299; Honey v Australian Airlines Ltd (1989) ATPR 40-961. Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479; Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414 at 445.

[8.990] 591

Australian Media Law

Falsely representing that goods or services, or that a corporation or person have a particular sponsorship, approval or affiliation also constitutes a contravention of both the general prohibition of misleading or deceptive conduct and the more specific prohibitions contained in the Australian Consumer Law, ss 18 and 29 respectively. This may embrace false claims that, for example, a corporation or its product is endorsed or recommended by a particular public figure.

A possible shape of things to come in Australia [8.1000] There is currently no specific common law protection for personal privacy. However, as the ALRC has acknowledged, 413 Australian law is unlikely to stand still in light of developments in other countries that have similar legal systems and legal principles. For example, the factors that in the view of the New Zealand Court of Appeal provided strong impetus to recognise a cause of action – advances in technology, changing societal attitudes and a greater focus on human rights at an international level – may be seen as being no less influential in this country. As the ALRC stated: “It will be increasingly difficult to justify denying legal redress to people whose privacy has been seriously invaded, when other countries offer such redress”. 414 At common law, if the threshold question of whether there is a need for specific protection of personal privacy in Australia is answered in the affirmative, the next question is what form such protection should take. As Callinan J in ABC v Lenah Game Meats remarked, Australia need not simply adopt the approach in the United States, which has a different constitutional and political context, and should instead be suited to a distinctly Australian context. 415 On the other hand, Gummow and Hayne JJ (with Gaudron J concurring) indicated at least implicit support for the unreasonable intrusion and public disclosure of private facts formulations in the Second Restatement, suggesting that they came closest to protecting the fundamental value of personal autonomy, the interest identified as worthy of protection. 416 Gleeson CJ, however, favoured the English approach of protecting private information based on breach of confidence. 417 However, left to the incremental development of the common law by the courts, the exact parameters of a tort of invasion of privacy would likely take significant time to be determined, with resulting lack of predictability. 418 For this reason the Australian Law Reform Commission (ALRC), New South Wales Law Reform Commission (NSWLRC) and Victorian Law Reform Commission (VLRC) have all recommended the creation of a statutory cause of action protecting personal privacy, although there are important differences between the 413 414

ALRC, Serious Invasions of Privacy in the Digital Era , Report 123 (2014), [1.33]. ALRC, Report 123, [1.33].

415 416 417 418

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 328. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 256. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 224. NSWLRC, Report 120, [4.17], which described submissions that development should be left entirely to the courts as “simply unpersuasive”.

592 [8.1000]

Chapter 8 – Privacy

recommended formulations. 419 The ALRC recommendations concerning a statutory cause of action protecting personal privacy were initially a small part of a report that covered a wide range of privacy issues. As seen, the Labor Federal Government at the time responded to some but not all of the recommendations in the report, including the enactment of the Australian Privacy Principles. 420 The recommendations concerning personal privacy were not in that first group. Instead in June 2013 Attorney General Dreyfus provided the ALRC with fresh terms of reference to undertake a review into serious invasions of privacy in the digital era, which included the possible formulation for a statutory cause of action protecting personal privacy. The ALRC delivered its final report on these terms of reference in June 2014. In the intervening time there was a change in the Federal Government. Senator Brandis, the Attorney General in the Abbott Coalition Federal Government, responded to the recommendation of a statutory tort protecting against serious invasions of personal privacy in the Discussion Paper released in April 2014 that: “The government has made it clear on numerous occasions that it does not support a tort of privacy”. 421 At the time of writing the Abbott Government had not formally responded to the ALRC’s final report. Accordingly, in the short term at least, any development of a cause of action protecting personal privacy will need to be by virtue of the common law. For that reason, the following discussion will first consider possible development of the common law followed by the recommendations of the ALRC inquiry into serious invasions of personal privacy.

Common law [8.1010] A case may be made for two separate torts: an intrusion tort and a disclosure tort. 422 As noted, other forms of breach of privacy as known in the United States would more properly be within the province of other established causes of action. 423 In the case of the media, an unreasonable intrusion will often be followed by a public disclosure such as where photographs or recordings are surreptitiously taken or made and then published or broadcast in the media. However, human dignity or the fundamental value of personal autonomy may be affronted both by an unreasonable intrusion into a person’s private life even where there is no widespread dissemination of the results of such intrusion or by public disclosure of private facts which has not been preceded by an intrusion, at least by the same defendant. 419

420 421 422 423

The ALRC recommended that the cause of action be enacted in a separate federal statute that would also abolish any common-law action invasion of privacy: ALRC Report 108, [74.195]. The NSWLRC proposed its cause of action be enacted as a new s 74 of the Civil Liability Act 2002 (NSW). See [8.30]. C Merritt, “Brandis rejects privacy tort call”, The Australian April 4, 2014. The argument that follows is more fully explored in D Butler (2005) 29 MULR 339 at 367-389. See [8.990]. Cf the Australian Law Reform Commission in Unfair Publication: Defamation and Privacy Report No 11 (1979), pp 130-131 which thought that protection should be extended to the public disclosure of private facts and appropriation of identity. R Wacks, Personal Information Privacy and the Law (1989), pp 35-36 described the “false light” and “appropriation” categories as “a questionable application of ‘privacy’ to circumstances that have only the most tenuous relationship to the concept”. See also Wacks (1989), p 38.

[8.1010] 593

Australian Media Law

Disclosure tort [8.1020] Protection from public disclosure of private facts is a common development in other common law jurisdictions, although the route followed in achieving that result has differed. If Australian courts were to recognise such a tort then the choices would be to follow the English courts in developing the equitable action for breach of confidence or, like the New Zealand courts, adopt an adaptation of the American approach and recognise a separate tort protecting privacy. The former approach was favoured by Gleeson CJ in ABC v Lenah Game Meats. The latter was effectively the route taken by Hampel J in Doe v Australian Broadcasting Corporation but not approved in Giller v Procopets. As was recognised by Gault P and Blanchard J in Hosking v Runting the end result is not dissimilar, both essentially being based on whether there is a reasonable expectation of privacy or that information be kept confidential. 424 However, the New Zealand approach avoids the doctrinal angst associated with transforming an equitable action into an action yielding tortious remedies. It may therefore be a more appealing route in Australia where the common law and equity are still regarded as separate streams in the one channel that do not intermingle. It also avoids the need to reformulate, as Hampel J ventured to do in Doe v Australian Broadcasting Corporation, the basis of the action for breach of confidence away from the traditional notions of an obligation of conscience still emphasised by Australian courts, in order to deal with disclosures which place the private information in the public domain and thereby destroy the necessary quality of confidentiality. The New Zealand approach incorporates a requirement that the publicity given to the private facts be highly offensive to a person of reasonable sensibilities. This was seen as a means of excluding trivial claims. A similar test was proposed by Gleeson CJ in ABC v Lenah Game Meats – “disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities” 425 – but as a test for what may be considered private facts. This sense was, however, rejected by the House of Lords in Campbell v MGN. The difference then between these two approaches is whether the test applies to the disclosure by the defendant or the nature of the facts disclosed. However, the latter issue can be sufficiently represented by a test of whether there was a reasonable expectation of privacy, leaving the former to exclude trivial claims, and introducing common elements between this tort and the unreasonable intrusion tort, as would be appropriate for the two means of providing redress for differing types of affront to an individual’s human dignity or personal autonomy. If orthodox tort taxonomy is applied, in Australia a tort of disclosure would be classified as indirect and intentional, making it an action on the case. As such it would be dependent upon proof of damage of some kind. This may be contrasted with the position in England, where as an intentional interference it would be designated as a trespass and therefore actionable per se. However, since the foundation of the tort is human dignity or personal autonomy there is no need for the necessary psychological harm to reach the level of a lasting disorder such as 424 425

Hosking v Runting [2005] 1 NZLR 1 at [7]. Australian Broadcasting Corp v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 226.

594 [8.1020]

Chapter 8 – Privacy

the “recognisable psychiatric illness” needed for an action in negligence. 426 Instead harm in the form of emotional distress, embarrassment or humiliation should be sufficient. Accordingly, a tort of disclosure may be seen as having the following elements: (a)

a disclosure of facts;

(b)

in relation to which there is a reasonable expectation of privacy;

(c)

which disclosure would be highly offensive to a person of reasonable sensibilities; and

(d)

which results in the plaintiff suffering emotional distress, embarrassment or humiliation.

Intrusion tort [8.1030] Unreasonable intrusion upon a person’s privacy, such as that experienced in Kaye v Robertson 427 is the archetypal form of the invasion of privacy. If such a tort were to be recognised in Australia it might be seen as a further development of a tort of harassment, which has been regarded as being in an embryonic form in Australia. 428 In order to inform an appropriate formulation it would be natural to look to United States jurisprudence, including the tort as stated in the American Second Restatement. To date two judges have followed this course in undertaking this exercise. Skoien SJDC in the Queensland District Court case Grosse v Purvis, adopted and adapted the elements in the Second Restatement when describing the tort as (a) a willed act by the defendant (b) which intrudes upon the privacy or seclusion of the plaintiff (c) in a manner which would be considered highly offensive to a reasonable person of ordinary sensibilities (d) which causes the plaintiff detriment in the form of mental, psychological or emotional harm or distress or which prevents or hinders the plaintiff from doing an act which she is lawfully entitled to do. 429 A number of points should be made about this formulation. First, the American tort requires an “intentional interference with another’s interest in solitude or seclusion (either as to person or private affairs or concerns)”. By contrast, Skoien SJDC’s formulation may permit an action for accidental intrusions. This is because the first element only requires the defendant’s act to be willed, not the intrusion upon seclusion itself. Thus a camera may be installed or operated for an entirely innocent purpose but unintentionally film a private activity and thereby be caught by the proposed tort. 430 Further, the American tort does not require proof of harm, whereas Skoien SDJC required “detriment in the form of mental, psychological or emotional harm or distress or which prevents or hinders the plaintiff from doing an act which she is lawfully entitled to do”. An unreasonable intrusion tort would be in the nature of a direct, intentional tort. As such by orthodox Australian tort taxonomy it would be akin to a trespass and accordingly ought to be actionable per se, without proof of actual damage. 426 427 428 429 430

Tame v New South Wales (2002) 211 CLR 317. Kaye v Robertson (1991) 19 IPR 147; [1991] FSR 62. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 255. See also Boral Resources (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] VSC 429 at [76]-[83]. Grosse v Purvis [2003] QDC 151; [2003] Aust Torts Reports ¶81-706 at [444]. See, for example, D Butler, “The Dawn of the Age of the Drones: An Australian Privacy Law Perspective” (2014) 37(2) UNSW Law Journal 434.

[8.1030] 595

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By contrast, Whata J in the New Zealand High Court case C v Holland suggested a formulation that bore a closer resemblance to the American tort upon which it was based. Whata J described the tort as (a) an intentional and unauthorised intrusion (b) into seclusion (namely intimate personal activity, space or affairs) (c) involving infringement of a reasonable expectation of privacy (d) that is highly offensive to a reasonable person. 431 This formulation only applies to intentional intrusions and has no requirement that proof be shown. There have been suggestions by Tugendhat J in some cases that an invasion of privacy the form of an intrusion will also now be recognised in England. However, the precise doctrinal foundation for such development may be difficult to justify. In CTB v News Group Newspapers Ltd 432 a “super-injunction” was granted to a prominent English football player who had been involved in an extramarital affair with a former contestant on the Big Brother reality show. 433 Within a week the football player had been identified in over 75,000 tweets on Twitter and, when Eady J refused to vary the injunction to allow the newspaper to name the football player despite arguments that his identity had entered the public domain, by a Member of Parliament named the player under parliamentary privilege later that day. Nevertheless, Tugendhat J still refused to vary the terms of the injunction. While acknowledged that if the purpose of the injunction were to preserve a secret, it had failed that purpose, he thought that it still served its purpose in protecting the football player and his family from “taunting and other intrusion and harassment in the print media”. 434 Accordingly, the case represents a distortion of the purpose of the action for breach of confidence – whether it be seen as the enforcing the obligation of conscience or alternatively the prevention of the misuse of information, as it has evolved in England. Instead, Tugendhat J used the action as a means of preventing intrusion and harassment. Subsequently, in Goodwin v NGN Ltd 435 his Honour expressed his view in terms of the protection offered by the guarantee of privacy under Art 8 of the European Human Rights Convention: The right to respect for private life embraces more than one concept. Dr Moreham summarises what she calls the two core components of the rights to privacy: “unwanted access to private information and unwanted access to [or intrusion into] one’s … personal space” … I shall refer to the two components of the right as “confidentiality” and “intrusion”. 436

Whilst this avoids the muddle of seeing within the action for misuse of information protection from intrusion, it provides little guidance for the Australian context, which has no equivalent of the European Human Rights Convention. A preferable approach from a doctrinal point of view would be to recognise a distinct action providing protection against unreasonable intrusion and a separate action for disclosure of private information. As David Lindsay has observed, if

431 432 433 434

C v Holland [2012] NZHC 2155; [2012] 3 NZLR 672 at [94]. CTB v News Group Newspapers Ltd [2011] EWHC 1232. CTB v News Group Newspapers Ltd [2011] EWHC 1232. CTB v News Group Newspapers Ltd [2011] EWHC 1232 at [3].

435 436

Goodwin v NGN Ltd [2011] EWHC 1437. Goodwin v NGN Ltd [2011] EWHC 1437 at [85].

596 [8.1030]

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Australian courts are to extend the law to better protect privacy, it would be better to start with a clean slate than to do so with the baggage of an existing cause of action designed to protect different interests. 437 The nature of an unreasonable intrusion tort as a cause of action akin to trespass suggests that not only should the tort of the actionable per se but that intention should be required. Accordingly, a formulation that is closer to the original American or the New Zealand version would be preferable to that proposed in Grosse v Purvis. The inclusion in the New Zealand formulation of the intrusion being “unauthorised” encapsulates issues such as lack of consent for legal authority. Such matters may alternatively be reflected in permissible defences. Naturally, including such matters as elements of the cause of action rather than allowing them as defences casts a greater burden on the plaintiff. A formulation that contemplates a lesser burden on the plaintiff to seek reparation for the affront to his or her human dignity and personal autonomy would be as follows: (a)

an intentional intrusion;

(b)

upon another’s seclusion (whether intimate personal activity, space or affairs);

(c)

in circumstances in which there was a reasonable expectation of privacy; and

(d)

that is highly offensive to a reasonable person.

Elements (c) and (d) are important limiting factors. In the course of everyday activities humans may invade the personal space of other humans. It is only invasions in those circumstances in which there is a reasonable expectation of privacy that a person’s human dignity or personal autonomy may properly be regarded as affronted. Element (d) is common to the formulations in the United States, Grosse v Purvis and C v Holland. It is a means of ensuring that the action is only available for intrusions that are more substantial that the sleights that may offend an unduly sensitive litigant. 438

Reasonable expectation of privacy [8.1040] Both forms of protection of privacy depend upon whether there was a “reasonable expectation of privacy” in the circumstances. This will be a matter of fact and degree to be decided on a case-by-case basis. Sometimes the expectation may arise from the nature of information or activity itself or the circumstances in which the information has been imparted to another person or persons. 439 However, it is possible to suggest guidelines based on previous authorities in England and New Zealand, which have considered the concept for the purposes of their respective doctrines. Some factors have similarity to others. There are also no rigid demarcations between factors – a particular fact may have attributes of more than one factor. Accordingly when determining whether there is a reasonable expectation of privacy in the circumstances a court may take into account: 437

D Lindsay, “Protection of privacy under the general law following ABC v Lenah Game Meats Pty Ltd Where to now?” [2002] PLPR 45.

438 439

Cf C v Holland [2012] NZHC 2155; [2012] 3 NZLR 672 at [94]. McKennitt v Ash [2005] EWHC 3003 at [59] (QB).

[8.1040] 597

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(a)

the nature of the activity or information This factor includes: • Where the activity takes place or the information is held. Activities conducted open to plain sight would normally have a lesser expectation of privacy than those conducted behind closed doors. However, much depends upon the circumstances: it is not possible to draw a rigid line between what is private and that which is capable of being witnessed in a public place by other persons. 440 For example, a plaintiff may have a reasonable expectation of privacy for a hushed conversation conducted in a restaurant or busy hallway. Naturally in such cases the fact that the conversation takes place may be public but the content of the conversation may be private. Similar considerations apply to semi-public places such as hospitals. 441 Activities occurring, or information held, at home would normally be afforded a high expectation of privacy. People are entitled to expect privacy for anything non-criminal taking place in the home environment, including any conversations or disagreements occurring therein, as well as descriptions of the building or its contents 442 and the home address. 443 • Whether the plaintiff is associated with an event of public interest. Generally speaking, there may be no reasonable expectation of privacy in the fact of a road accident or other accident in a public place and the circumstances surrounding it. However, there may be exceptional circumstances in which a person involved in such an incident may be able to argue a right to privacy, even though the relevant circumstances arose in public and were observable by those in the immediate vicinity, such as where there are intimate and highly personal communications at the scene. 444 • The intimacy of the facts or circumstances involved. The Australia Law Reform Commission has previously defined “private facts” as those concerning details of an individual’s health, private behaviour, home life or personal or family relationships. 445 There would be a high expectation of privacy for intimate images such as photographs or video of the claimant in the nude in a private setting. 446 This would also include communications to friends and others in the aftermath of

440 441 442

443 444 445 446

Andrews v Television New Zealand Ltd [2009] 1 NZLR 220; John v Associated Newspapers Ltd [2006] EWHC 1611; King v Sunday Newspapers Ltd [2011] NICA 8. Cf Kaye v Robertson (1991) 19 IPR 147; [1991] FSR 62. McKennitt v Ash [2005] EWHC 3003 at [137] (QB); Lee v News Group Newspapers Ltd [2010] NIQB 106 at [43]. Naturally there can be no expectation of privacy where there are criminal acts being committed such as child abuse or the cultivation or production of illegal drugs. Green Corns Ltd v Claverley Group Ltd [2005] EWHC 958 at [53]; Lee v News Group Newspapers Ltd [2010] NIQB 106 at [32]. Andrews v Television New Zealand Ltd [2009] 1 NZLR 220. Unfair Publication: Defamation and Privacy Report No 11 (1979). See, for example, RocknRoll v News Group Newspapers Ltd [2013] EWHC 24; C v Holland [2012] NZHC 2155; [2012] 3 NZLR 672.

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bereavement or other trauma. 447 Confidential business dealings such as payments for performances or royalties might be added to this list. 448 Such facts might be regarded as carrying with them a high expectation of privacy.

(b)

• Whether a sexual relationship is involved. Sexual relationships may be seen as involving a range of expectations when it comes to privacy. At one end of the spectrum sexual relations within marriage or long-time partnership at home would be protected from most disclosures whereas a one night stand with a stranger in a hotel or transitory engagement in a brothel may carry with it a lower expectation of privacy. 449 While the intimate details of a sexual relationship are information of a kind that will often give rise to a reasonable expectation of privacy, the bare fact that a sexual relationship has taken place is another question. 450 Depending on the circumstances the bare fact of a relationship may or may not attract a similar expectation. For example, a court may consider that the bare fact of a relationship also as a reasonable expectation of privacy where there is an abusive family that will not allow the company together, or where the intimate details of the relationship have already been disclosed in the media in an anonymised form with the result that if the court allows a name to be published it will be then linked in the minds of the public with the details already known. 451 In the latter case if there is to be any protection the only means of doing so is to prohibit the publication of the bare facts of the relationship. By contrast, the bare fact of a sexual relationship having taken place may not attract a reasonable expectation of privacy in cases where, for example, there is a real risk that a failure to disclose will lead to misunderstanding or deception, such as where a politician has secured favours for a subordinate with whom the politician has had a sexual relationship. In such a case the problem may not be with the sexual relationship itself but rather the deception involved in trying to keep it confidential. 452 the conduct of the plaintiff This factor includes: • Whether the plaintiff is a public figure who invites publicity. Rather than developing special rules for public figures, the fact that the plaintiff is one who routinely courts publicity should merely indicate that he or she normally has a low expectation of privacy. In this way it is possible to accommodate recognition that even celebrities and other public figures are entitled to privacy on occasions, 453 especially when balanced with other factors such as a public figure attending family in a hospital or

447 448 449 450

McKennitt v Ash [2005] EWHC 3003 at [80] (QB). McKennitt v Ash [2005] EWHC 3003 (QB). Theakston v MGN Ltd [2002] EMLR 398 at 418; A v B plc [2003] QB 195; [2002] 2 All ER 545 (CA) at 217; ETK v News Group Newspapers Ltd [2011] EWCA Civ 439 at [17]-[18].

451

Terry v Persons Unknown [2010] EWHC 119 (QB) at [68]-[69]; Ntuli v Donald [2011] 1 WLR 294 at [3], [55]; CTB v News Group Newspapers Ltd [2011] EWHC 1326; Goodwin v NGN Ltd [2011] EWHC 1437 at [89]. Goodwin v NGN Ltd [2011] EWHC 1437 at [94]-[96].

452 453

Goodwin v NGN Ltd [2011] EWHC 1437 at [97]-[99], [102]. Lee v News Group Newspapers Ltd [2010] NIQB 106 at [33].

[8.1040] 599

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a funeral, or a public figure who seeks to escape fame at every available opportunity when not working. 454 The England and Wales Court of Appeal has rejected the so-called “zone argument” – that once a person had invited publicity about some aspect of his or her life that he or she permanently waived privacy in relation to that aspect of his or her life thereafter. 455 By contrast, it has been suggested that a well-known person who invites publicity does not have a reasonable expectation of privacy when involved in casual circumstances, such as “popping out for a pint of milk”. 456

(c)

• Whether the plaintiff invited publicity on the relevant occasion. While a person who invites publicity may have difficulty arguing an expectation of privacy in relation to publicity in respect of that matter, 457 such a person would still normally have a greater expectation of privacy on other occasions. This may mean, for example, that such a plaintiff may expect to be in the media spotlight for a shorter time than a public figure who courts publicity generally. the relevant attributes of the plaintiff This factor includes: • The plaintiff’s age. Where the plaintiff is a child of vulnerable age that would normally be a high expectation that he or she is entitled to a measure of privacy. 458 Even where the child plaintiff is a public figure who courts publicity he or she should be entitled to a greater expectation of privacy than an adult public figure although naturally less of an expectation that a child who does not court publicity. • Whether the plaintiff’s family is involved. Even where the plaintiff has courted publicity that it would normally be expected that his or her family would nevertheless be entitled to their privacy, especially when there are children of a vulnerable age involved. 459 However, this consideration must be considered in light of other factors and it is not conclusive. 460 The fact that the impact of the breach of privacy is greater on family members than on the plaintiff and may entitle them to a remedy of their own does not mean that the plaintiff will not also be affected, although it may be reflected in the size of any damages awarded. 461

454

459

See, for example, Von Hannover v Germany (2005) 40 EHRR 1; McKennitt v Ash [2005] EWHC 3003 at [76] (QB). McKennitt v Ash [2008] QB 73 at [55]. John v Associated Newspapers Ltd [2006] EWHC 1611 at [14]-[15] (photographs surreptitiously taken of singer Sir Elton John leaving his car and going to his front gate), relying on obiter by Baroness Hale in Campbell v MGN Ltd [2004] 2 AC 457 at [154]. See, for example, Hickey v Sunday Newspapers Ltd [2010] IEHC 349. Murray v Express Newspapers Plc [2009] Ch 481; Hosking v Runting [2005] 1 NZLR 1 at [147]; Lee v News Group Newspapers Ltd [2010] NIQB 106 at [44]; AAA v Associated Newspapers Ltd [2012] EWHC 2103; Weller v Associated Newspapers Ltd [2014] EWHC 1163. King v Sunday Newspapers Ltd [2011] NICA 8 at [28] (partner and child of crime boss).

460 461

Hosking v Runting [2005] 1 NZLR 1. King v Sunday Newspapers Ltd [2011] NICA 8 at [20].

455 456

457 458

600 [8.1040]

Chapter 8 – Privacy

(d)

the nature of the intrusion or disclosure This factor includes: • The means used to obtain the information. The fact that the information could only be obtained through surreptitious means may be an indication that in the circumstances there was a high expectation of privacy. 462

(e)

• Whether video or photographs are used. A number of cases have asserted that videos or photographs can be particularly intrusive, particularly where they give widespread publicity of images of someone that show them in a situation of humiliation or severe embarrassment. 463 There may also be a reasonable expectation of privacy in relation to behaviour in a public place which may be a transient occurrence for those who witnessed it, but which by virtue of CCTV images that have been recorded may be repeatedly replayed. 464 whether the information is already in the public domain This factor includes: • Whether there is an interest still worth protecting. In the case of disclosure, if the information is already in the public domain there can be no reasonable expectation of privacy. 465 However, the mere fact that the information has been shared with one or more of a number of other people or that they have otherwise become aware of the information does not necessarily mean that the information has entered the public domain. 466 Unlike commercial secrets, in the context of personal information courts should be loath to deny the protection of the law unless and until there is no longer anything left to be protected. 467 It has been suggested, for example, that it does not necessarily follow that because personal information has been revealed impermissibly to one set of newspaper readers that there can be no further invasion of privacy. Fresh revelations to different groups may still affront the plaintiff’s dignity and personal autonomy and thereby cause distress and damage. 468 • Whether the information is contained in a public record which is part of the public consciousness. Normally information which may be freely accessed by any member of the public would have little expectation of privacy. 469 However,

462 463 464 465 466 467 468 469

Shelley Films v Rex Features Ltd [1994] EMLR 134; Creation Records Ltd v News Group Newspapers Ltd (1997) 39 IPR 1. Campbell v MGN Ltd [2004] 2 AC 457; Theakston v MGN Ltd [2002] EMLR 398; King v Sunday Newspapers Ltd [2011] NICA 8; Ewing v Times Newspapers Ltd [2013] NICA 74. Peck v United Kingdom (2003) 36 EHRR 41. Mosley v News Group Newspapers Ltd [2008] EWHC 1117. See, for example, Prince of Wales v Associated Newspapers Ltd [2006] EWHC 522 (Ch) at [99]-[116]; McKennitt v Ash [2005] EWHC 3003 (QB); ETK v News Group Newspapers Ltd [2011] EWCA Civ 439. WB v H Bauer Publishing Ltd [2002] EMLR 145; RocknRoll v News Group Newspapers Ltd [2013] EWHC 24 at [25]. McKennitt v Ash [2005] EWHC 3003 at [81] (QB). See, for example, Rogers v Television New Zealand Ltd [2008] 2 NZLR 277 at [48] per Blanchard J, [63] per Tipping J and [104]-[105] per McGrath J

[8.1040] 601

Australian Media Law

(f)

information in a public record which has long passed out of the public consciousness is not necessarily in the public domain. A person who has a distant “skeleton in the closet” should have a greater expectation of privacy, especially where the skeleton has no relationship to current activities than, for example, a notorious paedophile recently released from jail. Recognition that those with distant skeletons are entitled to privacy can be found in the recommendation of a Select Committee of the House of Lords in the 1840s that the truth defence to a claim of defamation should have an additional requirement of showing public benefit or public interest in the publication, a recommendation first adopted in New South Wales in 1847 470 so as to facilitate the social integration of former convicts. Fleming once described the extended justification defence as, in the absence of an independent action for invasion of privacy against unjustifiable public disclosure of private facts, at least a second best. whether there is any potential risk of serious injury to the plaintiff

(g)

This is a different consideration from whether there was actual injury to the plaintiff as result of the intrusion or disclosure. In the formulations above it has been argued that the intrusion tort, as a tort akin to trespass, should be actionable per se while the disclosure tort, as an action on the case, should require proof of damage, although for a tort is based on affront to dignity it should be sufficient to show damage in the form of distress, embarrassment or humiliation. Instead, when the focus is on whether there is a reasonable expectation of privacy in the circumstances the question ought instead whether there is a risk of potential serious injury if that privacy is invaded. The risk of serious injury if there is disclosure, such as the plaintiff being a risk of bodily harm or even death if his or her identity and/or location is revealed, should normally indicate a high expectation of privacy. 471 any other circumstances Any list of factors used to determine whether there is a reasonable expectation of privacy must be non-exhaustive since it would be impossible to predict in advance and every possible circumstance that may have some relevance in every case.

Defences [8.1050] If the plaintiff were able to establish on balance that there was a reasonable expectation of privacy and the other elements of the intrusion or disclosure tort, the onus should then pass to the defendant to establish a relevant defence. Like defamation, defences to the plaintiff’s claim to privacy should establish the relevant balance between the plaintiff’s right to privacy and the defendant’s right to free speech. The relevant defences may help achieve the distinctly Australian privacy law suggested by Callinan J. A number of sources may assist to inform their question as to which defences are appropriate. These include the defences recognised to a breach of privacy in the form of 470 471

J Fleming, The Law of Torts (9th ed, 1998), at 614. Venables v News Group Newspapers Ltd [2001] 1 All ER 908.

602 [8.1050]

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communications, 472 and the Australian approach to breach of confidence. First and foremost, however, rights to privacy must be consistent with the constitutional freedom of communication concerning government or political matters. It has been seen elsewhere in this book 473 that “government or political matters” is an imprecise term and that there have been different approaches to its interpretation. Whilst a wide interpretation relating it to “all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about” was favoured by some members of the High Court 474 it would seem that a narrower interpretation limited to, for example, matters concerning the system of representative and responsible government has growing support. 475 This would not equate to the public interest. Similarly, while public interest has long been balanced as a defence against breach of confidence in England, before the right to free expression was recognised as a defence to be balanced against any reasonable expectation of privacy, Australia has traditionally taken a narrower approach of the justification defence to a breach of confidence, the weight of authority going no further than disclosures of “iniquity”, which has been variously expressed as a “serious misdeed of public importance … of a character of public importance, in the sense that what is to be disclosed affects the community as a whole, or affects the public welfare”, matters involving risk to the community of “destruction, damage or harm” and “matters, carried out or contemplated, in breach of the country’s security or in breach of law (including statutory duty), fraud or otherwise destructive of the country or its people, including matters posing a medical danger to the public and misdeeds of similar gravity”. 476 On the other hand, a defence of publication or communication which is “in the public interest” or “no more than is necessary in the public interest” is recognised in a majority of the States’ Listening Devices/Surveillance Devices statutes. 477 When it is kept in mind that a defence of public interest, in one form or another, is also recognised in New Zealand and the United States and was acknowledged by Skoien SJDC in Grosse v Purvis 478 there would seem to be a strong case for its recognition in Australia. As such it would be closer to the wide interpretation of “government or political matters” and therefore be consistent with the constitutional freedom of communication. However, caution should be exercised lest the “blunderbuss of ‘public interest’” too easily demolish individual privacy. 479 In the United States constitutionally-guaranteed free speech commonly trumps privacy rights. By contrast, in Australia the constitutional freedom of communication concerning government or political matters is a qualified defence to 472

See [8.270], [8.360], [8.400].

473

See [3.990]. Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 124-125 (Mason CJ, Toohey and Gaudron JJ in a joint judgment). Peek v Channel Seven Adelaide Pty Ltd (2006) 228 ALR 553 at [16] (SASC FC); Herald and Weekly Times Ltd v Popovic (2003) VR 1.

474 475 476

See [7.330].

477 478 479

See [8.270], [8.400]. Grosse v Purvis [2003] QDC 151; [2003] Aust Torts Reports ¶81-706. R Wacks, “Why no English common law privacy tort” in A Kenyon and M Richardson, New Dimensions in Privacy Law: International and Comparative Perspectives (2006), p 171.

[8.1050] 603

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defamation, which is subject to a requirement that the conduct of the defendant in publishing was reasonable and liable to be defeated if the publication is actuated by malice or abuse of the privilege. It might be argued that an invasion of privacy through intrusion or disclosure should be similarly limited. In England, the reporting of a sado-masochist party as a “Nazi orgy” when there were no facts to support the Nazi embellishment lead to the suggestion that the public interest defence should be tempered by a requirement of responsible journalism. 480 In no case should the public interest be seen as giving free rein to sloppy journalism or embellished reporting. “Responsible journalism” is a term that has been used to describe the guidelines suggested by Lord Nicholls in Reynolds v Times Newspapers 481 for determining whether a publication of defamatory material was in the public interest. These guidelines have since been incorporated into s 30(3) of the uniform Defamation Acts as guidelines for determining whether the conduct of the plaintiff was reasonable for the purposes of the statutory qualified privilege against defamation. It has been further recognised in England that one example of where an invasion of privacy would be in the public interest would be where the plaintiff has deliberately sought to mislead the public on a significant issue and the defendant has sought to put the record straight. 482 That said, a very high degree of misbehaviour would need to be demonstrated: relatively trivial matters even though falling short of the highest standards that people may set will not be sufficient. 483 The mere fact that a public figure, like everyone else, falls short of the ideal from time to time does not justify, in the name of the public interest, disclosure of “every peccadillo or foible cropping up in day-to-day life”. 484 As is the case with other causes of action, such as defamation and breach of confidence, “public interest” for the purposes of a defence to an invasion of privacy is not the same as matters that are merely of interest to the public. 485 It should therefore not be a defence for gossip, scandal or titillation. The other defences might also be suggested by reference to the State Listening Devices/Surveillance Devices statutes, so far as common defences may be found in at least a majority of those statutes, as well as the other defences to privacy recognised in the United States. The latter bear similarities to some defences in defamation. Accordingly, a list of defences to the Australian intrusion and disclosure torts might comprise the following: • intrusion or publication which is no more than necessary in the public interest and the conduct of the defendant was reasonable; • intrusion or publication with express or implied consent; • publication covered by Parliamentary or judicial privilege; • fair reports of privileged proceedings; 480 481

Mosley v News Group Newspapers Ltd [2008] EWHC 1117 at [141]. Reynolds v Times Newspapers Ltd [2001] 2 AC 127; see also Jameel (Mohammed) v Wall Street Journal Sprl [2007] 1 AC 359. See further [3.1020].

482 483

Campbell v MGN Ltd [2004] 2 AC 457; McKennitt v Ash [2005] EWHC 3003 at [96] (QB). Cf R Wacks, “Why no English common law privacy tort” in A Kenyon and M Richardson (2006), p 181 where it is argued that truth or falsity should not block the reasonable expectations of privacy of even public figures.

484 485

McKennitt v Ash [2005] EWHC 3003 at [97] (QB). British Steel Corporation v Granada Television Ltd [1981] AC 1096 at 1144.

604 [8.1050]

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• publication in protection of interest (retort); • publication in communications between government ministers and other ministers or high-level officials; • publication to a person reasonably believed to have an interest in the material so as to make the publication reasonable under the circumstances. 486

Statutory cause of action [8.1060] As already noted, left to the incremental development of the common law by the courts, the exact parameters of a tort of invasion of privacy would likely take significant time to be determined, with resulting lack of predictability. Also, as seen, it would involve various doctrinal difficulties. 487 For these reasons the ALRC and NSWLRC and VLRC have all recommended the creation of a statutory causes of action protecting personal privacy. While initially there were important differences between their recommended formulations, 488 the subsequent 2014 ALRC inquiry focusing specifically on invasion of personal privacy was closer in its final recommendations to those of the NSWLRC, at least in relation to the way the public interest should be accommodated. The following discussion of the ALRC approach will focus on the latter, more specific 2014 ALRC inquiry and recommendations rather than the former 2008 ALRC inquiry, which considered the whole spectrum of privacy laws. The initial 2008 ALRC inquiry, the NSWLRC and the VLRC all stressed that they were proposing a statutory cause of action rather than a statutory tort, since this enabled the consideration of competing interests such as have not traditionally been relevant to the development of tortious causes of action. By contrast, the subsequent 2014 ALRC inquiry stressed its proposal that the cause of action be described in any legislation as a statutory tort. Unlike the other two inquiries 489 the latter ALRC saw virtue in the statutory cause of action drawing on established principles of tort law when deciding ancillary issues, which it thought would provide a measure of certainty, consistency and coherence to the law. 490

Australian Law Reform Commission Report 123 (2014) Cause of action [8.1070] The ALRC recommended that the statutory tort have five elements for a plaintiff to prove: (1)

An invasion of privacy either by intrusion into seclusion or by misuse of private

486 487

See D Butler (2005) 29 MULR 339 at 377-388. NSWLRC, Report 120, [4.17], which described submissions that development should be left entirely to the courts as “simply unpersuasive”.

488

The ALRC recommended that the cause of action be enacted in a separate federal statute that would also abolish any specific common law action invasion of privacy: ALRC Report 123, [4.5], [4.85]. The NSWLRC proposed its cause of action be enacted as a new s 74 of the Civil Liability Act 2002 (NSW).

489 490

ALRC Report 108, [74.118]; NSWLRC Report 120, [5.54]-[5.57]. ALRC Report 123, [4.41]-[4.50]

[8.1070] 605

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information. The ALRC viewed unwanted access to one’s body or personal space and unwanted access to private information as representing the “two core components of the right to privacy”. 491 Providing redress for intrusion upon seclusion was regarded as useful for filling in the gaps left by tort such as trespass, nuisance, and intentional infliction of emotional harm. 492 The ALRC chose “misuse” in preference to “disclosure”, even though it recognised that in most cases a misuse will be constituted by a disclosure, since it viewed the concept of misuse as being wider than disclosure and instead including an individual’s ability to ensure that personal information was used or only the purposes he or she desired. 493 It nevertheless recognised that there was a risk of overlap between misuses and intrusions into private affairs, such as where an employee of a company without authorisation excesses private information of a customer or fellow employee. 494 The ALRC also preferred “information” to “facts” because it thought that a person’s privacy could be invaded by disclosure of untrue information and the use of the word “facts” might imply that the relevant information must be true. The ALRC recognised that since that a court would need to consider whether there had been an intrusion into a private space, private activities or private affairs, or the misuse of private information, the first two elements will need to be considered together. 495 (2)

a person in the position of the plaintiff would have had a reasonable expectation of privacy in all the circumstances. The ALRC saw this element as reflecting a useful and widely adopted test of what is private. 496 It is an objective rather than subjective test which is able to adapt to community standards from time to time. The ALRC proposed that a non-exhaustive list of considerations that the court may consider should also be enacted, namely: (a)

the nature of the private information; including whether it relates to intimate or family matters, health or medical matters, or financial matters;

(b)

the means used to obtain the private information or to intrude upon seclusion; including the use of any device or technology;

(c)

the place where the intrusion occurred, such as in the plaintiff’s home;

(d)

the purpose of the misuse, disclosure or intrusion;

(e)

how the private information was held or communicated, such as in private correspondence or a personal diary;

491 492

ALRC Report 123, [5.9]. ALRC Report 123, [5.22].

493 494

ALRC Report 123, [5.43]-[5.44]. ALRC Report 123, [5.45].

495 496

ALRC Report 123, [5.16]. ALRC Report 123, [6.5].

606 [8.1070]

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(f)

whether and to what extent the private information was already in the public domain;

(g)

the relevant attributes of the plaintiff, including the plaintiff’s age, occupation and cultural background; and

(h) (3)

the conduct of the plaintiff, including whether the plaintiff invited publicity or manifested a desire for privacy. 497 the invasion was committed intentionally or recklessly

(4)

The ALRC thought that confining the statutory tort to cases where there was either an intentional or reckless invasion of privacy would not only ensured that it applies only to the most objectionable types of invasion but also was critical to the justification for the tort to be actionable without proof of damage. 498 It also made the statutory tort analogous to other torts protecting the fundamental personal rights such as assault and false imprisonment, which also required proof of intention. 499 Accordingly, the statutory tort would not be available for negligent or accidental invasions of privacy. 500 the invasion must be serious Imposing an additional threshold limiting the statutory tort to invasions that are serious was seen as sending an important message that would deter people from bringing trivial claims. 501 However, the ALRC expected that in some circumstances it will be obvious that the invasion of privacy was serious or may be evident from the other elements of the offence. For example, the circumstances that establish the reasonable expectation of privacy which has been intentionally invaded may strongly suggest that the invasion of privacy satisfies the seriousness threshold. The ALRC proposed that specific guidance should be provided on the meaning of “serious”, namely: (a)

the degree of any offence, distress or harm to dignity that the invasion of privacy was likely to cause to a person of ordinary sensibilities in the position of the plaintiff; and

(b) (5)

whether the defendant was motivated by malice or newly invasion of privacy was likely to offend, distress or harm the dignity of the plaintiff. 502 the public interest in privacy outweighs any countervailing public interests

The ALRC acknowledged that there while there was widespread agreement that the right to privacy should be balanced against competing public interests, there were different views concerning when and how that balancing exercise should take place – that is whether it should be an element of the tort with the plaintiff bearing the legal 497 498

ALRC Report 123, [6.25]. ALRC Report 123, [7.2], [7.4].

499 500

ALRC Report 123, [7.3]. ALRC Report 123, [7.31]-[7.33].

501 502

ALRC Report 123, [8.1]. ALRC Report 123, [8.19].

[8.1070] 607

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onus of proof or a defence with the defendant carrying the onus. 503 Indeed the ALRC in its 2007 review of privacy supported the latter approach. 504 In now adopting the former approach the ALRC recognised that the defendant will generally be best placed to identify the countervailing public interest and therefore recommended that the action provides that the defendant has the burden to adduce evidence of such a public interest but that of the plaintiff bears the onus at satisfying the court that the public interest in privacy outweighs the other public interest. 505 Further, the ALRC suggested that there should be a non-exhaustive list of public interest matters that a court may consider when considering whether the invasion of privacy was justified in the public interest, namely: (a)

freedom of expression, including political communication and artistic expression;

(b)

freedom of the media, particularly to responsibly investigate and report matters of public concern and importance;

(c)

the proper administration of government;

(d)

open justice;

(e)

public health and safety;

(f)

national security; and

(g)

the prevention and detection of crime and fraud. 506

Defences [8.1080] The ALRC recommended a number of defences, some of which are the same as, or analogous to defamation defences, namely: (a)

lawful authority, where the defendant’s conduct was required or authorised by law;

(b)

conduct incidental to the exercise of the lawful right of defence of persons or property;

(c)

necessity;

(d)

express or implied consent;

(e)

absolute privilege;

(f)

publication of public documents; and

(g)

fair report of proceedings of public concern. 507

The ALRC proposed that internet intermediaries should not be liable where they have no knowledge of the invasion of privacy but saw no justification for an exemption from liability where they had such knowledge. 508 503 504

ALRC Report 123, [9.8]. ALRC Report 108, [74.157].

505 506

ALRC Report 123, [9.6]. ALRC Report 123, [9.44]-[9.65].

507 508

ALRC Report 123, [11.1]-[11.99]. ALRC Report 123, [11.100].

608 [8.1080]

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Remedies [8.1090] The ALRC recognised that invasions of privacy may have different consequences for different plaintiffs depending upon the circumstances. Consequently the remedies that they may seek may similarly be diverse: some may wish monetary compensation, some may want the offending behaviour to cease, some may seek to have similar conduct in the future deterred, and others may seek to have public vindication in some form. The ALRC therefore recommended that a court be able to award a range of remedies is appropriate, as follows: (a)

damages to compensate a plaintiff, including damages for emotional or mental distress and exemplary damages in exceptional circumstances;

(b)

account of profits;

(c)

injunctions;

(d)

delivery up, destruction or removal of material;

(e)

correction orders;

(f)

apology orders; and

(g)

declarations. 509

New South Wales Law Reform Commission Report 120 (2008) Cause of Action [8.1100] The NSWLRC recommended a cause of action where there was conduct that invaded the privacy that an individual was reasonably entitled to expect in all the circumstances having regard to any public interest. In making this determination the court must take into account the nature of the subject matter; the nature of the conduct; the relationship between the individual and the alleged wrongdoer; the extent to which the individual has a public profile; the extent to which the individual is or was in a position of vulnerability; the conduct of the individual and the alleged wrongdoer both before and after the conduct (including any apology or offer of amends made by the alleged wrongdoer); the effect of the conduct on the health, welfare or emotional well-being of the individual; and whether the conduct concerned contravened a provision of any Australian statute. The court may take into account any other matter considered relevant. 510 The NSWLRC recognised that no action for invasion of privacy would be available where that invasion was with the express or implied consent of the claimant but considered that the question of consent was relevant to determining whether there was a reasonable expectation of privacy, rather than operating as a defence. 511 Like the approach advocated by the subsequent ALRC report, the NSWLRC formulation requires a determination whether the claimant was reasonably entitled to expect privacy in the 509 510 511

ALRC Report 123, [12.1]-[12.176]; cf ALRC Report 108, [74.177]-[74.180]. Proposed Civil Liability Act 2002 (NSW), s 74. ALRC Report 108, para [74.159]; NSWLRC Report 120, [5.46] and proposed Civil Liability Act 2002 (NSW), s 74(4).

[8.1100] 609

Australian Media Law

circumstances “having regard to any relevant public interest”, including the interest of the public in being informed about matters of public concern. Thus, rather than creating a prima facie enforceable right to privacy the NSWLRC suggested that in determining whether or not there had been an invasion of privacy a court should be required at the outset to determine whether competing public interests outweighed the public interest asserted. 512 It was thought that this better reflected the notion that in Australian law no particular interest is privileged above others. 513 It also means that since any asserted countervailing public interest needs to be put in the balance at the outset the relevant onus rests with the plaintiff, rather than operating as a defence which the defendant has the burden of proving. 514 The NSWLRC thought that the addition of a requirement that the invasion be “highly offensive” was superfluous. This was because a plaintiff whose reaction to the defendant’s conduct arose principally out of an undue sensitivity would simply not be able to show that a reasonable person of ordinary sensibilities would find that conduct offensive, and thus would not be able to establish a reasonable expectation of privacy. 515 In any event, the NSWLRC suggested that the same conclusion would be reached in practice under both formulations. 516 Moreover, the NSWLRC regarded any qualification of the test of reasonable expectation of privacy as being unwarranted in principle. Apart from the constitutional implication of freedom of political communication, there was no reason why in Australian law freedom of expression should be privileged above privacy in the same way as may be appropriate in the United States due to the First Amendment guarantee of free speech. 517 The NSWLRC did not dismiss the possibility of an action based on a negligent act. 518 It also proposed a defence of innocent dissemination similar to that available for defamation. 519 This would require that the defendant published the matter merely in the capacity (or as employee or agent) of a subordinate distributor, where the defendant either knew, nor ought reasonably to have known, that the publication of the matter constituted an invasion of privacy and that lack of knowledge was not due to any negligence on the part of the defendant. 520

Defences [8.1110] The NSWLRC proposed a number of defences. 521 In addition to the innocent dissemination defence, these were that the conduct of the defendant was required or authorised by law; was done for the purpose of lawfully defending or protecting a person or property; or would attract a defence of absolute privilege for fair report of proceedings of public concern, as for defamation. There would also be a defence where the publication was in 512

NSWLRC Report 120, [5.15].

513

NSWLRC Report 120, [5.16].

514 515

NSWLRC Report 120, [5.17]. NSWLRC Report 120, [5.9].

516

NSWLRC Report 120, [5.10].

517

NSWLRC Report 120, [5.11].

518

NSWLRC Report 120, [5.56].

519 520 521

NSWLRC Report 120, [6.10]. Proposed Civil Liability Act 2002 (NSW), s 75(1)(d). Proposed Civil Liability Act 2002 (NSW), s 75.

610 [8.1110]

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circumstances in which the defendant publisher had an interest or duty to provide information on the subject and the recipient had a corresponding interest or duty. This defence would be defeated if the plaintiff proved that the publication was actuated by malice.

Remedies [8.1120] The NSWLRC proposed that a court may award a remedy for invasion of privacy as it thinks appropriate, which it supported by a non-exhaustive list of remedies comprising a compensation order, an order prohibiting the defendant from engaging in conduct that would invade the plaintiff’s privacy, a declaration order, and an order to deliver up articles, documents or other materials. 522

Victorian Law Reform Commission Report 18 (2010) Cause of Action [8.1130] The VLRC recommended the creation of two overlapping statutory causes of action rather than one because “the concept of privacy is too broad and imprecise to be of use when creating legal rights and obligations”. 523 It thought protecting the two broadly recognised subcategories of privacy – intrusion and misuse of private information – “is likely to promote greater clarity about the precise nature of the legal rights and obligations that have been created and by creating a broad civilly enforceable right to privacy”. 524 Accordingly, the VLRC recommended a statutory cause of action for serious invasion of privacy caused by misuse of private information where: • the defendant misused, by publication or otherwise, information about the plaintiff in respect of which he/she had a reasonable expectation of privacy; and • a reasonable person would consider the defendant’s misuse of that information highly offensive. It also recommended a statutory cause of action for serious invasions of privacy caused by an intrusion upon seclusion where: • the defendant intruded upon the seclusion of the plaintiff when he/she had a reasonable expectation of privacy; and • a reasonable person would consider the defendant’s intrusion upon the plaintiff seclusion highly offensive.

Defences [8.1140] The VLRC suggested that there should be the following defences: (a)

consent;

(b)

where the defendant’s act or conduct is incidental to the exercise of a lawful right of defence of personal property;

522

Proposed Civil Liability Act 2002 (NSW), s 76.

523 524

VLRC Report 18, [7.123]. VLRC Report 18, [7.126].

[8.1140] 611

Australian Media Law

(c)

where the defendant’s act or conduct is required or authorised by or under law;

(d)

where the defendant was a public officer engaged in his or her duty and acted in a way that it was not disproportionate the matter being investigated and not committed in the course of the trespass;

(e)

the defendant’s conduct was in the public interest, where public interest is a limited concept and not any matter of the public may be interested in.

In addition where the defendant’s conduct involves publication there should be a defence where: (f)

the publication was privileged or fair comment. 525

The VLRC was in the view that both consent and public interest should be defences rather than elements in the cause of action because otherwise the plaintiff would have the burden of proving a negative in each case. 526

Remedies [8.1150] The VLRC was of the view that the remedies should be limited to compensatory damages (but not including exemplary damages), injunctions and declarations. 527

Endnote [8.1160] For any of the recommendations by the various Law Reform Commissions to become law will naturally require the necessary political will from the relevant government. At first glance one of stakeholders who would stand to lose if such laws were enacted would be media who, subject to the unsatisfactory patchwork of current laws, enjoy unbridled freedom to report the stories they wish to report, even if those stories involve invasions of personal privacy. A government may therefore be disinclined to act on such recommendations where there is a risk of alienating members of the “fourth estate”. Accordingly, if there are to be laws protecting personal privacy in Australia it is likely that the first steps will need to be by development of the common law rather than by statute. However, if in relation to public disclosures at least Australia were to go down the path contemplated by Gleeson CJ in protecting private information based on breach of confidence, 528 a significant issue that will require resolution will be whether the current iniquity defence, which is much narrower than a public interest test, 529 should be retained or expanded. If the outcome of that enquiry is a position less favourable than a public interest test it is conceivable that those voices strongly against any statutory cause of action such as the media may see such an action as a more palatable option than the common law. In such a case the recommendations of the ALRC or other law reform commission may yet see fruition. 525 526

VLRC Report 18, [7.149]-[7.189]. VLRC Report 18, [7.154], [7.180].

527 528 529

VLRC Report 18, [7.217]. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 224. See [7.330].

612 [8.1150]

Chapter 8 – Privacy

Statutory offence for breach of personal privacy [8.1170] It may be that more jurisdictions will be encouraged to enact Surveillance Devices legislation to replace Listening Devices legislation by, for example, the advance in technology such as cameras in mobile phones. Certainly concerns have been expressed about the potential misuse of such devices following a number of incidents involving unauthorised photographs being taken of children and posted on the internet. There have also been instances of “upskirting”, that is surreptitiously taking photographs underneath clothing, and recognition that such devices might be used surreptitiously to take photographs in public change rooms and swimming pools. These incidents and concerns have prompted discussion by the Standing Committee of Attorneys-General with a view to developing a uniform law. 530 Already some jurisdictions have taken steps to outlaw such conduct. 531 In Western Australia and the Northern Territory it may be caught by their existing surveillance devices acts since such conduct involves filming or photographing private activities. These are matters which largely do not concern the media, but instead are concerned with predatory behaviour by individuals seeking to gratify themselves. However, the legislative response which has been taken by Queensland arguably has wider implications. The Criminal Code 1899 (Qld), s 227A(1) prohibits a person from observing or visually recording another person “in circumstances where a reasonable adult would expect to be afforded privacy” without the other person’s consent and when the other person is either in a private place, or is engaging in a private act and the observation or visual recording is made for the purpose of observation or visually recording a private act. 532 Examples of “circumstances where a reasonable adult would expect to be afforded privacy” provided in the section relate to persons using a communal change room at a swimming pool and persons who need help to undress or use a toilet. However, examples that are provided in legislation are not definitive interpretation of that legislation. 533 Section 227A is supported by s 227B, which prohibits the “distribution” (which includes communication of transmission) of a prohibited visual recording of another person without his or her consent. There are many other circumstances not involving such cases “where a reasonable adult would expect to be afforded privacy”, such as activities carried on at home. In addition, the section is not limited to cases of filming done for the purpose of sexual arousal or sexual gratification as comparable legislation is in, for example, New South Wales. As much was expressly recognised by the Queensland Attorney-General Hon Linda Lavarch in the Second Reading of the amendment, when she noted that “the motivation of the observer will be irrelevant – that is, whether the observer’s motives are for sexual gratification, to harass the person observed, or for a commercial purpose”. Instead, the only relevant criteria were 530

See Standing Committee of Attorneys-General, Unauthorised Photographs on the Internet and Ancilliary Privacy Issues Discussion Paper, August 2005.

531

See, for example, Crimes Act 1900 (NSW), ss 21J; Criminal Code 1899 (Qld), s 227A; Summary Offences Act 1953 (SA), ss 26A – 26E; Summary Offences Act 1966 (Vic), ss 40 – 41G. The section also provides for an offence where a person observes or visually records another person’s genital or anal region without the other person’s consent: see s 227A(2). This offence will catch conduct in the nature of “upskirting”. Acts Interpretation Act 1954 (Qld), s 14D.

532

533

[8.1170] 613

Australian Media Law

whether in the circumstances the person was in a place where a reasonable adult would expect to be afforded privacy, whether he or she was engaged in a private act at the time, or whether the person was engaged in a private act regardless of the place, and where the purpose of the offender is to observe or record a private act, in circumstances where a reasonable adult would expect to be afforded privacy. 534 Accordingly, whilst the Attorney-General when introducing the legislation prefaced her remarks by stating that it was “designed to address the ‘voyeuristic’ observation or recording of another person in circumstances where a reasonable person would expect to have their privacy and modesty protected”, 535 it may be possible to argue that the section in its terms is capable of being interpreted in such a way that it applies to a case of the media surreptitiously visually recording another person in any “circumstances where a reasonable adult would expect to be afforded privacy”. Voyeurism need not be confined to individuals gratifying themselves, and may equally be engaged in by the media for its commercial purposes. Such an interpretation would in one sense amount to a greater protection of privacy than in Victoria, Western Australia and the Northern Territory since the prohibition would not include the same defences as are provided in the surveillance devices legislation in those jurisdictions. However, contravention of the section amounts to a criminal offence only. No provision is made for an aggrieved person recovering compensation for any violation. However, that does not mean that the section has no relevance to the possibility of a civil claim for breach of privacy. In Grosse v Purvis Skoien SJDC observed that all or almost all of the crimes in which an individual person was identified in the indictment as the complainant or victim had a corresponding tort which allowed for the recovery of compensation for injury suffered. However, the then new crime of stalking (Criminal Code 1899 (Qld), s 359E) had no such corresponding tort. This provided a reason for his Honour taking the first “bold step” of developing a common law action for invasion of privacy. 536 A fortiori, a criminal offence for breach of privacy may be considered to provide additional support for such a tort.

Self regulation Codes of Practice [8.1180] A degree of protection of personal privacy is provided by the media’s self regulation through various codes of practice pursuant to the Broadcasting Services Act 1992 (Cth), s 123. 537 For example, “Free TV Australia” for the commercial television industry Code of Practice provides that in broadcasting news and current affairs programs, television licensees must not use material relating to a person’s personal or private affairs, or which 534

Queensland, Parliamentary Debates (8 November 2005), p 3745.

535 536 537

Queensland, Parliamentary Debates (8 November 2005), p 3744. Grosse v Purvis [2003] QDC 151; [2003] Aust Torts Reports ¶81-706 at [420]. The intention was that codes of practice would be developed by radio and television groups representing commercial broadcasting licensees, community broadcasting licensees, providers of subscription broadcasting services, providers of subscription narrowcasting services and providers of open narrowcasting services: s 123.

614 [8.1180]

Chapter 8 – Privacy

invades an individual’s privacy, other than where there are “identifiable public interest reasons” for the material to be broadcast. Also, licensees must display sensitivity in broadcasting images of, or interviews with, bereaved relatives and survivors or witnesses of traumatic incidents. 538 Similarly, “Commercial Radio Australia” for the commercial radio industry Code of Practice provides that in the preparation and presentation of current affairs programs, radio licensees must ensure that respect is given to each person’s legitimate right to protection from unjustified use of material which is obtained without an individual’s consent or other unwarranted and intrusive invasions of privacy. 539 Provisions requiring justification of invasions of privacy may also be found in the Codes of Practice of the Australian Broadcasting Corporation (ABC) and the Special Broadcasting Service (SBS). 540 Moreover, the Code of Ethics of the Australian Journalists’ Association, which is now part of the Media Entertainment and Arts Alliance (MEAA), states in cl 11: “Respect private grief and personal privacy. Journalists have the right to resist compulsion to intrude”. 541 The level of protection that these Codes provide in practice is questionable. This is because of the inclusion in the commercial television and radio codes of nebulous concepts such as “identifiable public interest reasons” (as opposed to the more familiar legal term “in the public interest”), “display sensitivity”, “unjustified use” and “unwarranted … invasions” without any sense of an objective yardstick as to the determination of these matters. In other words, in whose opinion or standards is “sensitivity”, “lack of justification” and “unwarranted” to be decided? Similarly, the AJA Code of Ethics provides that any of its standards may be overridden by “substantial advancements of public interest” or “risk of substantial harm to people”. There is no provision concerning whose opinion or standards decides what constitutes a “substantial advancement of public interest” or “substantial harm to people”. Further, membership of the MEAA is not compulsory. The other question that besets the level of protection in practice relates to the consequences of a breach of the Codes. In the case of an alleged breach of a Code of Practice, complaints are directed in the first instance to the relevant industry body. If no or inadequate response is received, a complaint may be made to the Australian Communications and Media Authority (ACMA). 542 If a failure to comply with a Code of Practice is shown, the ACMA’s powers include the imposition of obligations on a licence 543 and issue of a notice directing compliance with a Code of Practice, breach of which may lead to a stop notice and suspension or cancellation of a licence. 544 Neither directly benefit the complainant. However, the ACMA may now also accept enforceable undertakings in relation to the Codes of Practice. 545 If the ACMA believes the undertaking has been breached it may seek an order in 538 539

See s 4 of the Code. See s 2 of the Code.

540 541

ABC, Code of Practice, ss 2.5, 4; SBS, Code of Practice, ss 1.9, 2. See further [14.1590].

542 543

Broadcasting Services Act 1992 (Cth), s 149. Broadcasting Services Act 1992 (Cth), ss 44, 88.

544 545

Broadcasting Services Act 1992 (Cth), s 141. See Broadcasting Services Act 1992 (Cth), s 205W.

[8.1180] 615

Australian Media Law

the Federal Court to enforce the undertaking. The court may order the person who made the undertaking to comply with it, pay any benefit gained to the ACMA, pay compensation to any person who has suffered loss or damage as a result of the breach, or any other order it considers appropriate. 546

Press Council [8.1190] A person who feels aggrieved by print media intrusion on his or her privacy has the option of making a complaint to the Australian Press Council. The guiding principle for the Council is that: “Newspaper readers are entitled to have news and comment presented to them honestly and fairly, and with respect for privacy and sensibilities of individuals”. 547 Complaints are referred in the first instance to the editor of the newspaper, magazine or periodical concerned, if the editor has not already been contacted concerning the complaint. If the complainant is not satisfied with the editor’s response, the matter is referred to the complaints committee. The complaints committee balances the public interest in disclosure against any alleged invasion of privacy. The degree of protection provided by the Press Council may be questioned. It is true that the complaints procedure may provide a complainant who might not have the resources or, in Australia, sufficient legal authority to pursue a remedy in court. However, while adjudications are published in a report, the Council has no power to order newspapers, magazines or periodicals to publish the outcome, let alone to order a remedy such as damages or injunction. The Council also does not investigate complaints about radio or television, or complaints about advertising. The Council’s rulings are not always consistent and the complaint may be made that the Council is “Caesar judging Caesar” in the sense that there may be a perception of a lack of independence inherent in journalists determining complaints against journalists.

546 547

See Broadcasting Services Act 1992 (Cth), s 205X. See also [14.1500]-[14.1570].

616 [8.1190]

Offensive Publications

9

[9.10] INTRODUCTION ...................................................................................... 618 [9.20] RACIAL VILIFICATION ............................................................................... 618 [9.30] The legislation .......................................................................................... 619 [9.40] Elements ................................................................................................... 621 [9.40] [9.50] [9.190] [9.240]

Public act/act not in private ............................................... Vilification ......................................................................... Race .................................................................................. Necessary nexus ................................................................ [9.280] Complainants and respondents ........................................................... [9.290] Defences ................................................................................................. [9.290] Grounds for defence ......................................................... [9.300] Reasonableness ................................................................. [9.320] Good faith ......................................................................... [9.360] Remedies ................................................................................................

621 622 630 633 635 635 635 637 639 642

[9.370] BLASPHEMY AND RELIGIOUS VILIFICATION ....................................... 644 [9.370] Blasphemy .............................................................................................. 644 [9.370] [9.410] [9.440]

Basis of offence .................................................................. 644 Religions other than Christianity ........................................ 645 Blasphemy in Australia ....................................................... 646 [9.450] Religious vilification ............................................................................... 648 [9.450] Prohibited conduct ............................................................ 648 [9.480] Meaning of religion ........................................................... 649 [9.490] Defences ........................................................................... 650 [9.500] Urging force or violence .................................................... 651 [9.510] Codes of conduct .............................................................. 651

[9.520] VILIFICATION ON OTHER GROUNDS ................................................. 651 [9.530] OBSCENITY AND INDECENCY ............................................................. 652 [9.530] Offence of being obscene and indecent ............................................. 652 [9.530] [9.540]

Tendency to deprave and corrupt ...................................... 652 Modern approach: community standards test ................... 653 [9.570] Relevant standard .................................................................................. 656 [9.570] Average person ................................................................. 656 [9.590] Relevant community ......................................................... 657 [9.600] Targeted audiences ........................................................... 658 [9.630] Pornography ..................................................................... 660 [9.640] Classification scheme for publications, films and computer games .... 661 [9.640] The national classification scheme ..................................... 661 [9.670] Offences ............................................................................ 665 [9.680] Responses to classification ................................................. 665 [9.690] Classification and terrorism ............................................... 666 [9.700] Classification of content on broadcast media ..................... 667 [9.710] Regulation of online content ................................................................ 667 [9.710] The content services regime .............................................. 667 [9.720] Prohibited content and potential prohibited content ......... 668 [9.730] Complaints about internet content .................................... 669 617

Australian Media Law [9.740] [9.750] [9.760] [9.770] [9.780]

ACMA’s powers in relation to prohibited internet content hosted in Australia ................................................ ACMA’s powers in relation to internet content hosted outside Australia ..................................................... Protection for service providers, internet content hosts and internet service providers ................................... Internet industry codes of practice .................................... Internet filtering ................................................................

670 670 671 671 673

[9.790] Reform of censorship and classification ............................................... 674 [9.800] Defences ................................................................................................. 676

Introduction [9.10] A frequently controversial issue challenging freedom of speech and expression is the attempt by law to impose upon the community minimum standards of socially acceptable speech. In some respects, such an imposition may have been more readily accepted in the past than today, in a society which in many ways is now more tolerant and liberal. In other respects, the promotion of tolerance and equality in a multicultural society has warranted the imposition of new restraints. This chapter examines several instances in which the law seeks to set minimum standards of acceptable speech. The first instance is the laws prohibiting racial vilification, which are of relatively recent origin and were enacted pursuant to international obligations. These laws have been expanded in some jurisdictions to cover other forms of vilification, with the core legal principles being common to all forms of vilification. One of those other forms, religious vilification, has a wider embrace than blasphemy, one of the forms of criminal libel recognised by the common law. 1 Another of the common law libels, obscene libel, is reflected today in various summary offences statutes. Its modern day rationale of protecting the community or sections of the community from exposure to publications that offend community standards also forms the basis of the national statutory scheme for the classification of publications, films and computer games and attempts to regulate online content.

Racial vilification [9.20] As a signatory to the International Covenant on Civil and Political Rights, particularly Art 20, Australia was obliged to enact laws prohibiting “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”. To date legislation has been passed by the Commonwealth and most of the States and Territories. The Commonwealth statute does not limit or override any similar State or Territory Act in the area. 2 1

2

The term “libel” in this sense means writing, or a publication of some permanence: see, for example, Windeyer J in Crowe v Graham (1968) 121 CLR 375 at 391. It originates from the Latin “libellus” meaning “a little book”: see C Manchester, “A history of the crime of obscene libel” (1991) 12 Journal of Legal History 36 at 39. The four forms of criminal libel recognised by common law are blasphemous libel, obscene libel, seditious libel and defamatory libel. The latter two forms are considered in [10.40] and [3.1470] respectively. Racial Discrimination Act 1975 (Cth), s 18F.

618 [9.10]

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The legislation [9.30] Commonwealth and State legislation address three major issues that attend racial vilification: what acts or speech are to be prohibited, how the group of potential claimants may be identified and what recourse is to be provided in cases of transgression – civil or criminal or both? For example, in New South Wales the Anti-Discrimination Act 1977 (NSW), s 20C provides that it is unlawful for a person “by public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group”. There is an additional criminal offence in s 20D of serious racial vilification committed where an act of racial hatred includes a threat of physical harm or property damage, or incites others to threaten physical harm or property damage. Identical or very similar provisions have been enacted in the Australian Capital Territory, Queensland, South Australia, Tasmania and Victoria. 3 At a Commonwealth level, the Racial Discrimination Act 1975 (Cth), s 18C makes it unlawful for a person to do an act otherwise than in private if (a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate a person or a group of people; and (b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group. While racial vilification is not a criminal offence under this Act, anti-terror laws enacted by the Commonwealth included a new offence of “urging force or violence” within the community. 4 This offence is committed where a person intentionally urges another person or group to use force or violence against a targeted group, intending that force or violence will occur, where the targeted group is distinguished by race, religion, nationality, national or ethnic origin or political opinion. Thus, whilst principally designed in the context of protecting the community against acts of terror, it is also a form of prohibition at a Federal level against racial vilification. 5 Section 18C has been the focus of debate, particularly after conservative commentator Andrew Bolt was found to have contravened the section in two of his newspaper articles. 6 The section was criticised by some as “political correctness gone too far” or “political censorship” since it prohibited words that could “offend, insult or humiliate”. In the Senate, Attorney General Brandis defended what he called the “right to be a bigot” and said that s 18C was unduly restrictive in a “free country [where people] have rights to say things that other people find offensive or insulting or bigoted”, 7 despite there being a defence in s 18D which seeks to 3

4 5

Discrimination Act 1991 (ACT), ss 66 (civil liability), 67 (criminal offence); Anti-Discrimination Act 1991 (Qld), ss 124A (civil liability), 131A (criminal offence); Racial Vilification Act 1996 (SA), s 4 (criminal offence); Civil Liability Act 1936 (SA), s 73 (tort of “racial victimisation”); Anti-Discrimination Act 1998 (Tas), s 19(a); Racial and Religious Tolerance Act 2001 (Vic), ss 7 (civil liability, includes “revulsion”), 24 (criminal offence). Criminal Code 1995 (Cth), ss 80.2A – 80.2B. See [10.80].

6

See [9.240].

7

D Harrison and J Swan, “Attorney-General George Brandis: ’People do have a right to be bigots’” Sydney Morning Herald March 24, 2014. http://www.smh.com.au/federal-politics/political-news/attorneygeneral-georgebrandis-people-do-have-a-right-to-be-bigots-20140324-35dj3.html.

[9.30] 619

Australian Media Law

strike an appropriate balance with free speech where the person acts reasonably and in good faith. In 2014 the Abbott Government proposed an “exposure draft” of proposed amendments to the Act, 8 which would have significantly limited the scope of the federal racial vilification offence 9 and significantly widened the defence by removal of the requirement of showing reasonableness and good faith. 10 However, four months later these reforms were withdrawn after sustained criticism and the matter having become, in the words of Prime Minister Abbott, “a complication” in the context of the government’s overall legislative agenda, 11 particularly its anti-terrorism legislation. 12 In Western Australia, racial vilification is currently only a criminal offence. The Criminal Code was amended in 1990 to make it an offence to publish or to possess for the purposes of publication, distribution or display, material intended to create, promote or increase hatred of a racial group. It is also an offence where the intention is to harass a racial group. 13 The various racial vilification provisions may extend to communications about government or political matters. There may be a question, therefore, whether the legislation impinges upon the implied constitutional freedom of communication. The two-tiered test propounded in Lange v Australian Broadcasting Corporation 14 must be applied. Some forms of government or political discussion may offend, humiliate, ridicule or otherwise vilify others because of or on the ground of their race. Laws outlawing such speech therefore may constitute a burden on freedom of communication about government or political matters. 15 However, in relation to the second part of the Lange test, the laws are reasonably appropriate and adapted to serve a legitimate end, the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. This is because the purpose of the legislation was the “promotion of equality of opportunity for all members of the community by prohibiting objectionable conduct inconsistent with purposes of the Act and the Parliament’s desire to improve the quality of democratic life through an educated community appreciative and respectful of the dignity and worth of all its members”. 16 In addition, the defences, particularly for acts that are reasonably and in good faith for purposes of the public discussion of matters, also strikes an appropriate balance with the

8 9

http://www.ag.gov.au/consultations/pages/ConsultationsonamendmentstotheRacialDiscriminationAct1975.aspx. See [9.80].

10 11

12

See [9.290]. E Griffiths, “Government backtracks on Racial Discrimination Act 18C changes; pushes ahead with tough security laws” ABC News August 6, 2014. http://www.abc.net.au/news/2014-08-05/government-backtracks-onracial-discrimination-act-changes/5650030. See [10.10].

13 14

Criminal Code 1913 (WA), ss 77 – 80. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567-568.

15

See Sunol v Collier (No 2) (2012) 289 ALR 128 at [45] (in the context of homosexual vilification); cf Catch the Fire Ministries Inc v Islamic Council of Victoria Inc (2006) 15 VR 207 (in the context of religious vilification). Owen v Menzies [2013] 2 Qd R 327 at [77] per McMurdo P, (with whom de Jersey CJ and Muir JA agreed) (in the context of homosexual vilification).

16

620 [9.30]

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implied freedom. 17 This balance has been struck by the legislatures in a careful manner which is consistent with international conventions, such as the International Covenant on Civil and Political Rights (ICCPR). 18 Besides legislation, racial vilification in electronic media is also excluded by the codes of practice for radio and television contemplated by the Broadcasting Services Act 1992 (Cth), s 123. 19

Elements Public act/act not in private [9.40] Significantly for the media, “public act” is defined in the State legislation as including any form of communication to the public “including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material”. 20 In Victoria, the phrase “engage in conduct” is instead used, which is defined to include use of the internet or email to publish or transmit statements or other material. 21 Under the Commonwealth Act, one definition of an act done “otherwise than in public” is to “cause words, sounds, images or writing to be communicated to the public”. 22 This has been held to include the placing of material on a website which is not password protected and is accessible via an internet browser. 23 “Public act” has an expansive meaning. Accordingly, where for example a radio or television commentator presents his or her words and those of his or her listeners or viewers for transmission, that commentator will be regarded as having engaged in a “public act,” even though lacking the actual capacity to broadcast those words himself or herself and relying on the radio or television broadcaster to do so. 24 In such a case both the commentator and the television or radio broadcaster will have engaged in a “public act.” It may only be necessary to distinguish between the acts of the commentator and those of the broadcaster for the purposes of considering the relevant defences. 25 Similarly, it has been held that where a newspaper actively solicits and moderates contributions from readers through some vetting process (for example, in order not to offend the general law or to meet other media standards) before publishing them on its website as comments on a story that it has published, and reserves the right not to publish or to modify them, the newspaper may be as liable for 17 18 19

Owen v Menzies [2013] 2 Qd R 327 at [78] per McMurdo P, (with whom de Jersey CJ and Muir JA agreed). Kazak v John Fairfax Publications Ltd [2000] NSWADT 77 at [94]-[96]. See [14.940].

20

See, for example, Anti-Discrimination Act 1977 (NSW), s 20B; Anti-Discrimination Act 1991 (Qld), s 4A; Racial Vilification Act 1996 (SA), s 3; Civil Liability Act 1936 (SA), s 73(1). Racial and Religious Tolerance Act 2001 (Vic), s 7.

21 22 23

Racial Discrimination Act 1975 (Cth), s 18C(2). Jones v Toben [2002] FCA 1150 at [73]; Silberberg v Builders Collective of Australia Inc (2007) 164 FCR 475 at [19].

24 25

Jones v Trad (2013) 86 NSWLR 241. Jones v Trad [2011] NSWADTAP 19 at [24]-[25].

[9.40] 621

Australian Media Law

breaches of the legislation as the original author. In such a case it is no defence for the newspaper to say: “But we only published what the reader sent us”. 26

Vilification [9.50] When determining whether there has been vilification within the terms of the relevant statute it is necessary to first identify what imputations have been conveyed. The principles concerning imputations for the purposes of the law of defamation have also been adopted for the purposes of dealing with cases of vilification. 27 In Eatock v Bolt these principles were summarised as follows: • In deciding whether any particular imputation is capable of being conveyed, the question is whether it is reasonably so capable; • Any strained or forced or utterly unreasonable interpretation must be rejected; • The ordinary reasonable meaning of the matter complained of may be either the literal meaning of the published matter or what is implied by that matter, or what is inferred from it; • The mode or manner of publication is a material matter in determining what imputation is capable of being conveyed. Thus, for example, the reader of a book is assumed to read it with more care than he or she would read a newspaper; • The more sensational the article in a newspaper the less likely it is that the ordinary reasonable reader will have read it with a degree of analytical care which may otherwise have been given to a book and the less the degree of accuracy which would be expected from the reader; • The ordinary reasonable reader of such an article is understandably prone to engage in a certain amount of loose thinking; • There is a wide degree of latitude given to the capacity of the matter complained of to convey particular imputations where the words published are imprecise, ambiguous, loose, fanciful or unusual; and • In determining what is reasonable in any case, a distinction must be drawn between what the ordinary reasonable reader, listener or viewer (drawing on his or her own knowledge and experience of human affairs) could understand from what the author has said and the conclusion which the reader, listener or viewer could reach by taking into account his or her own belief which has been excited by what was said. It is the former approach, not the latter, which must be taken. 28

26 27

28

Clarke v Nationwide News Pty Ltd (t/as The Sunday Times) (2012) 289 ALR 345 at [110] per Barker J. See Gianni Versace SpA v Monte (2002) 119 FCR 349 at [144]-[146] per Tamberlin J; Jones v Scully (2002) 120 FCR 243 at [125]-[126] per Hely J; Jones v Toben [2002] FCA 1150 at [87] per Branson J; Eatock v Bolt (2011) 197 FCR 261 at [19] per Bromberg J. Eatock v Bolt (2011) 197 FCR 261 at [19] per Bromberg J citing Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165-166.

622 [9.50]

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Under Commonwealth law: “likely to offend, insult, humiliate or intimidate” [9.60] Terms like “offend”, “insult”, “humiliate” or “intimidate” are not defined in the Commonwealth Act, and are given their dictionary meanings. 29 “Offend” means “to irritate in mind or feelings; cause resentful displeasure in” or “to hurt or wound the feelings or susceptibilities of”. “Insult” means “to treat insolently or with contemptuous rudeness, affront” or “to assail with offensively dishonouring or contemptuous speech or action; to treat with scornful abuse or offensive disrespect”. To “humiliate” is “to lower the pride or self respect or cause a painful loss of dignity; to mortify” while “intimidate” means “to make timid, or inspire fear; overawe; cow”. The first two of these words involve closely related concepts, with the same possibly being the case with the final two words. 30 Example

Jones v Toben [9.70] Jones v Toben [2002] FCA 1150 An organisation called the “Adelaide Institute” created and maintained an internet site on which it published malicious anti-Semitic propaganda. The site conveyed at least four imputations: (1) there was serious doubt the Holocaust occurred; (2) it was unlikely there were gas chambers at Auschwitz; (3) Jews who were offended by the denial of the Holocaust were of limited intelligence; (4) some Jews had for improper purposes (some financial) exaggerated the number of Jews killed in World War II and the circumstances of their deaths. Branson J of the Federal Court held that each of (1) and (2) challenged and denigrated a deep seated belief and shared perception of Australian Jewry surrounding the deaths or displacement of their parents or grandparents and therefore would engender feelings of hurt and pain, as well as engendering a sense of being treated “contemptuously, disrespectfully and offensively”. Also, due to their calumnious nature, (3) and (4) would engender in Australian Jews a sense of being treated “contemptuously, disrespectfully and offensively”. Moreover inasmuch as the website was easily accessed via browser by anyone wishing to find information on Jewish culture, including students, it might pressure vulnerable members of the Jewish community to renounce their cultural differences, and make others fearful of accessing the Web because of the risk of accessing this material. Thus, the site was not only reasonably likely to offend and insult

29 30

Jones v Toben [2002] FCA 1150 at [90]. This case cited definitions from both the Macquarie and Oxford dictionaries. Jones v Toben [2002] FCA 1150 at [91].

[9.70] 623

Australian Media Law Jones v Toben cont. but also reasonably likely to humiliate and intimidate. These findings were not challenged on appeal to the Full Court. 31

[9.80] The test for whether the non-private act is “reasonably likely to offend, insult, humiliate or intimidate” is objective. The feelings of the complainant are not determinative. 32 However, in some cases the hypothetical person will need to share more attributes with the complainant than mere race or ethnicity. 33 Other matters of context, such as the nature of the publication, the length of the publication, the language used, the nature of occasion and audience and any historical and social context will again be relevant. 34 Where offensive material is posted to an online forum, failure to remove that material within a reasonable time may be regarded as constituting an act “reasonably likely to offend, insult, humiliate or intimidate”. The party controlling such a website would be in an analogous situation to one who fails to prevent the publication or the continuance of publication of defamatory material. 35 The fact that the material is said to be posted in breach of user conditions does not absolve the party controlling the website from responsibility. Indeed it may reinforce that that party has taken no steps to ensure that its conditions are obeyed. 36 The 2014 Abbott Government’s “exposure draft” of proposed amendments to s 18C contained significant changes to the approach to vilification under Commonwealth law. The draft proposed the repeal of s 18C and its replacement with an offence where the act otherwise in private was reasonably likely “to vilify another person or group of persons, or to intimidate another person or group of persons” where “vilify” was defined as meaning “to incite hatred against the person or a group of persons” and “intimidate” was defined to mean “to cause fear of physical harm to a person, the property of a person or the members of a group of persons”. Whether the act was reasonably likely to have this effect was to be determined by the standards of an ordinary reasonable member of the Australian community and not by the standards of any particular group within the Australian community. 37 Accordingly, the new offence would have limited the sense of vilification to incitement of hatred and intimidation and removed any notion of offending, insulting or humiliating as grounds for complaint. Thus, for example, the Holocaust denial and other accompanying statements held to be vilification in 31

Sub nom Toben v Jones (2003) 129 FCR 515. See also Jones v The Bible Believers Church [2007] FCA 55 (Holocaust denial and assertions that Jewish people exaggerated the number of Jews killed in the Holocaust for improper purposes held to breach s 18C).

32

Bryant v Queensland Newspapers Pty Ltd [1997] HREOC 23; Jones v Toben [2002] FCA 1150; Kelly-Country v Beers (2004) 181 FLR 352; Silberberg v Builders Collective of Australia Inc (2007) 164 FCR 475. Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 at [13] (portrayal of complainant living traditional lifestyle judged from perspective of “Aboriginal mother … who resides in the township of Coen”).

33 34 35 36 37

Kelly-Country v Beers (2004) 181 FLR 352 at 374-376. Silberberg v Builders Collective of Australia Inc (2007) 164 FCR 475 at [34]. In relation to defamation by failure to remove material, see [3.570]. Silberberg v Builders Collective of Australia Inc (2007) 164 FCR 475 at [34]. See http://www.ag.gov.au/consultations/pages/ConsultationsonamendmentstotheRacialDiscriminationAct1975.aspx.

624 [9.80]

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Jones v Toben would likely not have been so under the proposed law, unless also accompanied by incitement of hatred or intimidation in the sense of fear of physical harm to person or property.

Under State/Territory law: “incite hatred, serious contempt or severe ridicule” Meaning of “incite” [9.90] The word “incite” is given its ordinary meaning rather than having a meaning appropriate for criminal law. The test is objective: for civil claims at least it is not necessary to show an actual intent to incite or that any person was actually incited. 38 To “incite” has its ordinary dictionary meaning of “to urge, spur on, stir up, animate, stimulate or rouse someone or some request of another or others to do something”. 39 It is not enough for a person to merely convey his or her hatred or serious contempt for another person or group. 40 Freedom of expression is a right of all Australian citizens, even where it is used to express opinions repulsive to the general community or sections of it. Instead, there must be something that is positively stimulatory of that reaction in others – that encourages or spurs others to harbour such emotions. 41 In considering whether conduct by a person has the relevantly inflammatory tendency the circumstances in which the conduct took place are as important as what was said or done. 42 Nevertheless, it is not necessary for a person to in fact have been incited, 43 nor for there to have been an actual intention to incite. 44 The standard of proof is the balance of probabilities. 45 Meaning of “hatred”, “severe contempt” and “ridicule” [9.100] The words “hatred”, “contempt”, “severe” and “ridicule” are given their ordinary dictionary meanings. A liberal construction is applied, provided that construction is not unreasonable or unnatural. 46 “Hatred” denotes a set of emotions and feelings which involve intense dislike, detestation or extreme ill will towards another person or group of persons. To “hate” someone is to find no redeeming qualities in that person. By contrast, “contempt”

38 39 40 41 42

43 44 45 46

Wagga Wagga Aboriginal Action Group v Eldridge (1995) Eq Opp Cases 92-701 at 78,264-78,265; Kazak v John Fairfax Publications Ltd [2000] NSWADT 77. Sunol v Collier (No 2) (2012) 289 ALR 128 at [26] (NSWCA). Sunol v Collier (No 2) (2012) 289 ALR 128 at [28] (NSWCA). Sunol v Collier (No 2) (2012) 289 ALR 128 at [28] (NSWCA); Burns v Dye [2002] NSWADT 32 at [20]. Burns v Radio 2UE Pty Ltd [2004] NSWADT 267; Trad v Jones (No 3) [2009] NSWADT 318 at [161], cf Kazak v John Fairfax Publications Ltd [2000] NSWADT 77 (publication stimulated hatred or serious comment, even though did not amount to a specific call to action against the group). Sunol v Collier (No 2) (2012) 289 ALR 128 at [29] (NSWCA); Catch the Fire Ministries Inc v Islamic Council of Victoria Inc (2006) 15 VR 207 at [14]. John Fairfax Publications Pty Ltd v Kazak [2002] NSWADTAP 35 at [10]; Burns v Dye [2002] NSWADT 32 at [21]. Burns v Laws (No 2) [2007] NSWADT 47 at [93]-[113]. Wagga Wagga Aboriginal Action Group v Eldridge (1995) Eq Opp Cases 92-701 at 78,265. Kazak v John Fairfax Publications Ltd [2000] NSWADT 77.

[9.100] 625

Australian Media Law

describes a mental process of “looking down” upon, or treating as inferior. This is reflected by the dictionary definition of the word, which uses terms like “despised”, “dishonour” or “disgrace”. Example

Kazak v John Fairfax Publications Ltd [9.110] Kazak v John Fairfax Publications Ltd [2000] NSWADT 77 The Australian Financial Times published an opinion piece headed “With Friends like the Palestinians, Who Needs Enemies” which concerned the failure of Middle East peace initiatives. The article included statements like “the Palestinians cannot be trusted in the peace process” and that the Palestinians “remain vicious thugs who show no serious willingness to comply with agreements” and were “the true culprits in derailing efforts to reach an agreement over Gaza and the West Bank”. Kazak, a well-known representative of the Palestinian cause, wrote seeking an apology. Instead, this letter and others like it were published. It was held that article used language that was strong and consistently demeaning to paint an extremely negative picture of Palestinian people as unworthy of support because, at least in relation to the peace process, they were hypocritical, untrustworthy, blameworthy and viscous. It was held that in the circumstances, an ordinary, reasonable reader of the Financial Times would have been incited to hatred or serious contempt. Further, publication in an “opinions” section did not mean it could not amount to vilification. Indeed, a statement of fact will not normally be capable of inciting hatred. Virtually all vilifying material contains some kind of opinion.

[9.120] Although in a given case “hatred” and “contempt” may seem alike, the terms are not fully co-extensive. This is because “hatred” may in some instances be the product of envy of superior qualities. By definition, this could never be the case with “contempt”. “Severe” means “harsh” or “extreme” while “ridicule” means to excite contemptuous laughter or derision at a person. 47 Standard [9.130] It is clear that the question whether there is the requisite incitement does not depend upon the sensitivity of a particular individual but instead is measured against an objective standard. 48 However, there is a divergence in views concerning the relevant standard. While there is support for the view that the standard of “an ordinary, reasonable person”, is to be applied, 49 the New South Wales Court of Appeal 50 and a majority of the 47 48 49

Harou-Soudon v TCN Channel Nine Pty Ltd (1994) Eq Opp Cases 92-604; Kazak v John Fairfax Publications Ltd [2000] NSWADT 77; Taylor v Canadian Human Rights Commission (1990) 75 DLR (4th) 577. Burns v Laws (No 2) [2007] NSWADT 47. Harou-Soudon v TCN Channel Nine Pty Ltd (1994) Eq Opp Cases 92-604; Kazak v John Fairfax Publications Ltd [2000] NSWADT 77; Aegean Macedonian Association of Aust v Karagiannakis [1999] NSWADT 130.

626 [9.110]

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Victorian Court of Appeal 51 have instead favoured measuring any alleged incitement against the standard of an “ordinary” member of the audience. Relevant factors [9.140] The relevant factors when determining whether there has been vilification include: the length of the material in question; the nature of the publication; the context of the publication; the type of language used; whether the material is published once or is repeated; 52 and any social or historical context. 53 The audience to whom the material is published is an important consideration. 54 If the public act is to incite the requisite reaction it must reach the mind of an audience, so the effect will depend upon the perception of members of that audience. 55 It would be unduly restrictive to determine the issue by reference to a hypothetical reasonable person rather than considering the impact upon the particular class to whom the public act is directed. 56 Example

Jones v Trad [9.150] Jones v Trad (2013) 86 NSWLR 241 Jones was a popular talkback radio host and commentator who for a number of days made observations, expressed opinions and read letters and emails from listeners concerning Lebanese Muslims. The broadcasts had a number of themes which Jones related together, including a speech by a Lebanese-Muslim cleric which Jones interpreted as an incitement of sexual assaults by Muslim men upon non-Muslim women; the alleged lack of reaction by the audience, especially people identified by Jones only as “the Muslim leadership”; the anti-social behaviour of certain “car hoons”, identified by Jones as Lebanese Muslim youths and their disrespect for police; the feebleness of police in response to such behaviour; and Jones’ view that Australia is not a multiracial but a monocultural society and his view that this monoculture is under threat from “enemies within”. Jones’ commentary during the broadcasts included an interpolation in which he stated: “Remember, these people announced themselves as Lebanese Muslims … If ever there was a clear example that Lebanese males in their vast numbers not only hate our country and our heritage, this was it. They have no connection to us. They simply rape, pillage and plunder a nation that’s taken them in. I can’t believe what I’m seeing. What did we do as a nation to have this vermin infest our shores? What about the sacrifices

50 51 52

Sunol v Collier (No 2) (2012) 289 ALR 128 at [34] (NSWCA). Catch the Fire Ministries Inc v Islamic Council of Victoria Inc (2006) 15 VR 207. Harou-Soudon v TCN Channel Nine Pty Ltd (1994) Eq Opp Cases 92-604.

53 54

Kazak v John Fairfax Publications Ltd [2000] NSWADT 77. Harou-Soudon v TCN Channel Nine Pty Ltd (1994) Eq Opp Cases 92-604; Neal v Sunday News Auckland Newspaper Publications (1985) Eq Opp Cases 92-130.

55 56

Catch the Fire Ministries Inc v Islamic Council of Victoria Inc (2006) 15 VR 207 at [16]. Sunol v Collier (No 2) (2012) 289 ALR 128 at [34] (NSWCA); Jones v Trad (2013) 86 NSWLR 241.

[9.150] 627

Australian Media Law Jones v Trad cont. that our war dead gave to this country to make it what it is today, and these mongrels laugh at them on national TV. Tell me we don’t have a national security problem in the making …” It was held at first instance by the Administrative Appeals Tribunal 57 that while talkback radio, in which highly opinionated commentators vigorously expressed their views in discussing current affairs, was part of the rich texture of the media, Jones’ broadcasts amounted to vilification of Lebanese Muslims and Lebanese males. Jones was a high profile figure in the community whose opinions carried weight among his listeners. He had a large audience and a wide influence within the general public. This was shown by the hundreds of emails that his comments generated, many of which repeated phrases that he himself had used previously. Jones’ very technique lent itself to incitement. He stimulated, urged and agitated his listeners and correspondents with emotive editorials. The tone he used during his broadcasts combined, often simultaneously, elements of urgency, anxiety, anger, aggression and contempt. Although he did not initiate the use of the term “vermin” he implicitly endorsed by reading a correspondent’s letter approvingly. The broadcasts not only conveyed the impression that Jones held the Lebanese Muslim community and Lebanese males in deep contempt but also was capable of inciting the ordinary reasonable listener that there was serious contempt for both groups. These findings were upheld by the Appeal Panel. 58 However on further appeal, the New South Wales Court of Appeal overturned the decision. The failure to determine the relevant audience and the likely effect of broadcast on ordinary member of that audience and instead to proceed on an assumption of the attributes of that audience were not different from the populous at large was an error of law. The matter was therefore remitted to the Tribunal for determination according to the law.

[9.160] It is clear, however, that the legislation is intended to cover serious transgressions and not trivial matters. 59 Example

Harou-Sourdon v TCN Channel Nine Pty Ltd [9.170] Harou-Sourdon v TCN Channel Nine Pty Ltd (1994) Eq Opp Cases 92-604 The respondent broadcast a late night program called Robbo’s World Tonight hosted by Clive Robertson. Although essentially a news program, it was regularly interspersed with humorous or light-hearted comments or asides, or comments or asides intended to be humorous, by Robertson. One night the program included a segment about a French television broadcast of the trial, execution and burial of the former Romanian leader Nicholas Ceaucescu. Robertson described the broadcast as a “cheap thrill” and

57

Sub nom Trad v Jones (No 3) [2009] NSWADT 318.

58 59

Jones v Trad [2011] NSWADTAP 19. Harou-Sourdon v TCN Channel Nine Pty Ltd (1994) Eq Opp Cases 92-604.

628 [9.160]

Chapter 9 – Offensive Publications Harou-Sourdon v TCN Channel Nine Pty Ltd cont. “obscene” and added that “I thought the French had class. I knew they weren’t too good on personal hygiene but I thought at least they had class.” The complainant alleged that the broadcast of the statement constituted an unlawful act of racial vilification under the Anti-Discrimination Act 1977 (NSW), s 20C. The New South Wales Equal Opportunity Tribunal held that taking into account the fact that the item comprised only a few seconds in time out of a program lasting approximately 40 minutes; the nature of the program, including the well-known humorous or light-hearted comments or asides by the host; the light-heartedness of the aside or throwaway line in the context of the serious description of the broadcast as a “cheap thrill” and “obscene”; the ordinary language used; the fact that there was no repetition or exacerbation of the comments during the rest of the program; and the fact that the viewers of the program would have been familiar with the host’s attempts at making humorous or cynical asides or comments throughout the program, the statement was merely trivial and could not incite hatred, serious contempt or severe ridicule of the French race.

[9.180] Accordingly, the provisions will not catch the telling of jokes and similar humorous conduct provided that the humour does not take second place to belittlement or denigration. 60 It is relevant in this context to consider the group being targeted for the humour. For example, a compilation of Australian jokes in a New Zealand newspaper did not amount to ridicule when construed against the long shared history and tolerant, good-natured and almost fraternal relationship that existed between New Zealanders and Australians. 61 However, the mere use of flamboyant or colloquial language may not mean that there has been no vilification. 62 The “social or historical context” would seem to include the identity and history of the group concerned and the degree to which they have been subjected to racism in the past. Thus in Kazak v John Fairfax it was said that “communications about an historically oppressed minority are far more likely to cause harm to that group than communications which relate to the dominant majority”. 63 By contrast, the fact that there is a pre-existing intense discussion or debate about a particular issue does not amount to an ameliorating factor. Indeed, it has been said that such an ongoing debate is “a likely breeding ground for racially vilifying comment”. 64

60

Neal v Sunday News Auckland Newspaper Publications (1985) Eq Opp Cases 92-130 at 76,304.

61

Neal v Sunday News Auckland Newspaper Publications (1985) Eq Opp Cases 92-130. See also Bryant v Queensland Newspapers Pty Ltd [1997] HREOC 23 (referring to people as “Poms” or “Pommies”, when used in a manner which is not malicious or scurrilous, designed to foster hatred or antipathy in the reader or viewer, held not sufficient to attract the provisions of the Racial Discrimination Act 1975 (Cth)). Kazak v John Fairfax Publications Ltd [2000] NSWADT 77.

62 63 64

Kazak v John Fairfax Publications Ltd [2000] NSWADT 77 at [66]. Kazak v John Fairfax Publications Ltd [2000] NSWADT 77 at [32]. Cf Aegean Macedonian Association of Aust v Karagiannakis [1999] NSWADT 130 (article not act of incitement but instead part of continuing acrimonious debate about claims to name “Macedonia”).

[9.180] 629

Australian Media Law

The fact that an ordinary person to whom the public act is communicated would be aware that people hold divergent and extreme views on a particular issue is also irrelevant. 65

Race Meaning of “race” [9.190] “Race” is generally defined in the legislation as including nationality or national origin, colour, descent or ancestry, and ethnicity or ethnic origin. 66 The question of ethnic origin is not one of science or biological processes. 67 Instead, a number of criteria have been developed to determine the question of ethnic origin. It has been held that for a group to constitute an “ethnic group” for the purposes of the Acts, it must regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics, two of which are essential, namely (1) there must be a long shared history of which the group is conscious as distinguishing itself from other groups, and the memory of which it keeps alive and (2) there must be a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance. There are additional characteristics that may be relevant, namely either a common geographical origin or descent from a small number of common ancestors; a common language not necessarily peculiar to the group; a common literature peculiar to the group; a common religion different from that of neighbouring groups or from the general community surrounding it; and the characteristic of being a minority or being an oppressed or a dominant group within a larger community. 68 Example

Mandla v Dowell Lee [9.200] Mandla v Dowell Lee [1983] 1 All ER 1062 A boy who was an orthodox Sikh, and who accordingly wore long hair under a turban, was expelled from a private school because the wearing of a turban could have accentuated religious and social distinctions in a school which was a multiracial school based on the Christian faith. The House of Lords held that Sikhism is not only a religion. Sikhs are a separate community within the general community, with distinctive customs such as the wearing of long hair and a turban and were therefore a group defined by reference to “ethnic 65

Aegean Macedonian Association of Aust v Karagiannakis [1999] NSWADT 130.

66

See Discrimination Act 1991 (ACT), s 4; Anti-Discrimination Act 1991 (Qld), s 4; Anti-Discrimination Act 1977 (NSW), s 4; Racial Vilification Act 1996 (SA), s 3; Wrongs Act 1936 (SA), s 37(1). South Australia makes no reference to descent or ancestry. In Western Australia, the Criminal Code 1913, s 76 defines “racial group” as any group defined by reference to race, colour or ethnic or national origins. The Racial Discrimination Act 1975 (Cth) provisions such as s 18C outlaw conduct directed at a person’s “race, colour or national or ethnic origin”.

67 68

Miller v Mieson (1991) Eq Opp Cases 92-341; Mandla v Dowell Lee [1983] 1 All ER 1062. Mandla v Dowell Lee [1983] 1 All ER 1062 at 1066-1067.

630 [9.190]

Chapter 9 – Offensive Publications Mandla v Dowell Lee cont. origins” for the purposes of the English Anti-Racial Discrimination Act, even though they were not racially distinguishable from other people living in the Punjab in India.

[9.210] Similarly, it has been held that Jews form a group with common ethnic origins and are not merely to be considered to be members of a religious faith. 69 Gypsies have also been held to be an ethnic group due to their shared 700 year history, their common geographical origin and their distinctive customs and common dialectic, even though they no longer possess what may be considered a common “racial stock.” 70 By contrast, it has been held that Rastafarians 71 are not a “racial group” with “ethnic origins” but instead are merely a religious cult, because 60 years was not a sufficiently long period of time to be in existence and the cultural tradition of Rastafarians was not so distinctive from the rest of the Afro-Caribbean community as to render them a separate group. 72 Muslims have also been held to be a religious rather than racial or ethnic group. 73

“Ethno-religious origin” under the New South Wales statute [9.220] New South Wales sought to avoid the consequences of such a finding by expanding the Anti-Discrimination Act 1977 to include vilification on the basis of “ethno-religious origin”, which the Attorney-General declared would “clarify that ethno-religious groups such as Jews, Muslims and Sikhs would have access to the racial vilification and discrimination provisions of the Act”. He stressed, though, that the amendment was not intended to allow complaints of vilification on the basis of religion. 74 The amendment has therefore introduced the task in some cases (for example, Jews or Muslims) of trying to distinguish whether the vilification in question was on the basis of ethno-religious group or of religion, a decision which may be finely balanced in some cases. “Ethno-religious” has subsequently been defined as signifying “a strong association between a person’s or a group’s nationality or ethnicity, culture, history and his, her or its religious beliefs and practices”. 75 Accordingly, it has been held that because there are Muslims in every continent and of many different racial and ethnic backgrounds, Muslims cannot be regarded as a single “ethno-religious” group and a claimant is unable to 69

70 71 72 73

74

75

Miller v Wertheim [2002] FCAFC 156; King-Ansell v Police [1979] 2 NZLR 531 (NZCA). However, subgroups within the Jewish community (for example, Orthodox Jews) are not a distinct racial or ethnic group: Miller v Wertheim [2002] FCAFC 156. Commission for Racial Equality v Dutton (1989) IRLR 8. That is, a Jamaican cult that regards the former emperor of Ethiopia, Haile Selassie, to be their spiritual leader, and who believe in black supremacy and the back-to-Africa movement. Crown Suppliers PSA v Dorkins (1991) IRLR 327. Khan v Commissioner, Department of Corrective Services [2002] NSWADT 131 at [18]; Toll Pty Ltd v Abdulrahman [2007] NSWADTAP 70 at [8]; Kunhi v University of New England [2008] NSWADT 333 at [4]; Trad v Jones (No 3) [2009] NSWADT 318 at [123]. New South Wales, Parliamentary Debates (4 May 1994), p 1827. Amendments also extended the protection against vilification to cases of vilification on the basis of HIV/AIDS infection or presumed HIV/AIDS infection: see Anti-Discrimination (Homosexual Vilification) Amendment Act 1993 (NSW); Anti-Discrimination (Amendment) Act 1994 (NSW). Khan v Commissioner, Department of Corrective Services [2002] NSWADT 131 at [20].

[9.220] 631

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rely solely on his or her Muslim faith to fall within the ambit of the statutory definition. 76 Examples of ethno-religious groups which were proffered include Javanese Christians, Bosnian Muslims or Northern Irish Catholics. The question whether a person or group has been vilified on the grounds of their ethno-religious origin or religion can be problematic. In Jones v Trad the New South Wales Administrative Decisions Tribunal Appeal Panel provided three examples of the distinction: • The statement Muslims leave their brains behind when they enter the mosque. They believe in ludicrous, supernatural events. They are, if anything, even less rational than Christians and Jews.

is made on religious grounds and has nothing to do with ethnicity. • The statement Muslim immigration should be stopped. Islam does not accept a secular state and its attitude to women is medieval.

is also made on the ground of religious affiliation, even if the group might, (though they thought probably not) be regarded as one of ethno-religious origin. • The statement The Muslims here, as in Europe, are a bad lot. They don’t want to assimilate and their first allegiance is to their fellow Muslims, including terrorists such as Al Qaeda.

is likely to be seen as vilification of the group as one of ethno-religious origin, and on the ground of that origin. 77 By contrast, in Queensland, Tasmania and Victoria, Muslims, and similarly placed groups, are able to rely on the prohibition of religious vilification in their legislation. 78

Descent [9.230] Inclusion of the word “descent” in the legislation in New South Wales, Queensland, and the Australian Capital Territory may enable Aborigines from one descent group to lodge a complaint against Aborigines from another descent group. 79 Further, vilification of a group on the basis of colour is not limited to vilification of minority groups. For example, vilification of white people, where white people are in the majority in the community, is unlawful. 80 It seems that it is sufficient if the complainant is a convert to the particular group, for example, persons who marry into the group. By the same token, those who desert the group will be excluded. 81 76

77

Khan v Commissioner, Department of Corrective Services [2002] NSWADT 131 at [18]; see also Ahmed v Macquarie Radio Network (Radio Station 2GB) [2006] NSWADT 89; Ekermawi v Network Ten Pty Ltd [2008] NSWADT 334 at [7]-[8]: Trad v Jones (No 3) [2009] NSWADT 318 at [124]; Ekermawi v Harbour Radio Pty Ltd [2010] NSWADT 145 at [55]. Jones v Trad [2011] NSWADTAP 19 at [116].

78 79

See [9.450]. N Hennessy and P Smith, “Have we got it right? NSW racial vilification laws five years on” (1994) 1 AJHR 249 at 257; see also the interpretation of “descent” in Northern Land Council v Olney (1992) 34 FCR 470 at 485.

80 81

Regina v Malik [1968] 1 WLR 353. Mandla v Dowell Lee [1983] 1 All ER 1062 at 1067.

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Necessary nexus Under Commonwealth law: “because” [9.240] It has been held that the words “because of” in the Commonwealth section means there must be a causal relationship between the act and race or ethnicity. In other words, race or ethnicity must be at least one reason why the act was done. 82 The assessment of whether race or ethnicity is a reason is an objective one, taking into account all the circumstances including the relevant person’s intention or nature. 83 Example

Creek v Cairns Post Pty Ltd [9.250] Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 A newspaper article reported a decision by the Department of Family Services to remove a two-year-old Aboriginal girl from the foster care of a white family and place her with the applicant, a relative of the girl’s deceased mother and carer for the girl’s two brothers. The article queried whether the decision was a reaction to the “Stolen Generation” report into the suffering of Aboriginal children removed from their parents by Government policy, which had not long been released. The applicant’s complaint focused on the photographs that accompanied the article. While the photograph of the white couple presented them in their living room with a comfortable chair, the applicant was shown in a bush camp with an open fire and a lean-to. In reality the applicant lived in a comfortable four bedroom brick house. The evidence was that this photograph had been taken on an earlier occasion when the applicant had helped to find some lost backpackers and was the only photograph of the applicant that the newspapers had in its possession. Keifel J of the Federal Court found that a hypothetical person in the applicant’s position that is, an Aboriginal mother who resided in the township of Coen would feel offended, insulted or humiliated if depicted as living in rough bush conditions in the context of child welfare. However, the claim under the Racial Discrimination Act 1975 (Cth) was dismissed due to a lack of a causal relationship. Although the context of the story was race that did not mean that the publication of the offensive photograph was

82

83

Toben v Jones (2003) 129 FCR 515 at [30]. See also Bryl v Nowra and Melbourne Theatre Company (1999) EOC 93-022 (race or ethnicity part of background but not a cause of stage play); Hagan v Trustees of the Toowoomba Sports Ground Trust [2001] FCAFC 123 (race not a reason for refusal of Trustees to remove sign naming grandstand after famous footballer with nickname considered offensive by complainant). Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 at [22] as approved in Toben v Jones (2003) 129 FCR 515 at [31], [63]-[72], [151] and Bropho v Human Rights and Equal Opportunity Commission (2004) 204 ALR 761. See also Kelly-Country v Beers (2004) 181 FLR 352 at 377 (Aboriginal persona adopted by defendant as vehicle for his particular style of comedic performance to make money, to amuse his audience and to make social commentary and because of his ability to mimic Aboriginal people and his personal experience living with Aboriginal people, not because of the racial attributes of Aboriginal people).

[9.250] 633

Australian Media Law Creek v Cairns Post Pty Ltd cont. “because of” race. Race may have been a cause if instead the newspaper had chosen the offensive photograph when others depicting the true circumstances were available.

[9.260] By contrast, it was held “abundantly clear” that ethnic origin, namely Jewishness, was a reason why an organisation published malicious anti-Semitic propaganda, including a denial of the Holocaust, on an internet site, 84 and why the author of a comment posted on a website criticising the Jewish complainant for being responsible for an unhealthy monetary focus in the activities of an association. 85

Under State/Territory law: “on the ground of” [9.270] Similarly, “on the ground of” under State and Territory legislation has been interpreted as requiring race to have been “a” reason which, either alone or in combination with other reasons, was the true basis for the public act. 86 A perpetrator of racist hate speech should not be able to escape the prohibition merely because he or she is able to point to another reason for the hate speech besides racism. Instead, race must merely be at least one of the real, genuine or truth reasons for the incitement. 87 Thus, for example, the fact that the trigger for a broadcast is the poor behaviour of car hoons will not prevent it still being “on the ground of” race where the broadcast goes beyond criticism of such behaviour and also invites consideration of the threat posed by those of the race of the car hoons. 88 However, this approach has been questioned in the context of the Victorian prohibition against religious vilification, 89 which also uses the words “on the ground of”. It was suggested by the Victorian Court of Appeal in the Catch the Fire Ministries case 90 that the origin of the interpretation of this phrase as importing a causal connection was a minority judgment of McHugh J in a High Court discrimination case. 91 The majority in the same case considered that such a requirement would significantly impede or hinder the attainment of the objects of the anti-discrimination legislation, and that the intention or motive of the defendant was irrelevant. 92 The Victorian Court of Appeal preferred this view and held that in the case of religious vilification under the Victorian statute it is both necessary and sufficient that conduct incite hatred or other relevant emotion towards a person or group of persons which is based on their religious beliefs and, except for remedies, it is irrelevant what moves or actuates the 84 85 86 87 88 89 90 91 92

Toben v Jones (2003) 129 FCR 515. Silberberg v Builders Collective of Australia Inc (2007) 164 FCR 475. Jones v Trad (2013) 86 NSWLR 241 at [98] (NSWCA). Jones v Trad [2011] NSWADTAP 19 at [64]-[68]. Jones v Trad (2013) 86 NSWLR 241 See [9.450]. Catch the Fire Ministries Inc v Islamic Council of Victoria Inc (2006) 15 VR 207. See also Kazak v John Fairfax Publications Ltd [2000] NSWADT 77 at [69]. Waters v Public Transport Corporation (1991) 173 CLR 349 at 401. Waters v Public Transport Corporation (1991) 173 CLR 349 at 359 per Mason, CJ and Gaudron J and 382 per Deane J.

634 [9.260]

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conduct. 93 In other words, the prohibition against vilification is not concerned with whether the alleged inciter has been actuated by the religious (or racial) belief of a person or class of person, but with whether the audience was incited to hatred (or other relevant emotion) of another group, because of that groups’ religious beliefs (or race). 94 Such an interpretation is wider in that it focuses on the audience alone and does not require a causal connection. 95 It remains to be seen which of these interpretations will prevail, and whether a causal connection will be required for both the word “because” in the Commonwealth statute and “on the ground of” used in State and Territory legislation.

Complainants and respondents [9.280] The complainant must be an “aggrieved person” in the sense of a person with a special interest in the subject matter beyond mere intellectual or emotional concern. He or she must be able to show a grievance suffered as a result of the allegedly unlawful acts beyond that which he or she might have as ordinary members of the public. 96 Mere satisfaction of righting a wrong or upholding a principle is insufficient. 97 In the absence of an express provision, 98 a representative group, organisation or corporation has no standing to lodge a complaint. 99 It may be necessary in the case of an unincorporated association to look behind the name to see whether the members of the association themselves are “aggrieved persons”. 100 The respondent may be an individual, a group, a corporation, a writer, a publisher or a broadcaster. The legislation generally has provisions concerning aiding and abetting, and vicarious liability. 101

Defences Grounds for defence 102 [9.290] In order to preserve freedom of speech as far as possible, and to provide some protection for the media, the statutes in New South Wales, the ACT, Queensland and South Australia generally allow: 93 94 95

Catch the Fire Ministries Inc v Islamic Council of Victoria Inc (2006) 15 VR 207 at [24] per Nettle JA, [141] per Neave JA, Ashley JA agreeing with both “not without doubt”: see [129]. Catch the Fire Ministries Inc v Islamic Council of Victoria Inc (2006) 15 VR 207 at [141] per Neave JA Catch the Fire Ministries Inc v Islamic Council of Victoria Inc (2006) 15 VR 207 at [128]-[129] per Ashley JA.

96 97 98 99

Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 36 ALR 64. Executive Council of Australian Jewry v Scully (1998) 160 ALR 138 at 148. See, for example, Racial and Religious Tolerance Act 2001 (Vic), s 19. Australian Conservation Foundation Inc v Commonwealth (1980) 28 ALR 257 at 270; Western Aboriginal Legal Services Ltd v Jones [2000] NSWADT 102 at [15] (“[i]t is not possible for a corporation to be aboriginal”).

100 101

Executive Council of Australian Jewry v Scully (1998) 160 ALR 138 at 148-149. See, for example, Anti-Discrimination Act 1977 (NSW), ss 52, 53; Racial and Religious Tolerance Act 2001 (Vic), ss 15 – 16, 17. While the various grounds are commonly referred to as “defences”, they are in truth properly described as exceptions since they assist in defining what should be regarded as unlawful: Sunol v Collier (No 2) (2012) 289 ALR 128 at [60] (NSWCA).

102

[9.290] 635

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(a)

fair reporting of acts of public racial vilification;

(b)

publications which would be protected by absolute privilege in defamation proceedings; and

(c)

a public act done reasonably and in good faith for academic, artistic, scientific or for research purposes or for other purposes in the public interest including the discussion or debate of issues. 103

Tasmania has a similar list of defences, but in relation to the third only requires that the public act be done in good faith without the requirement of reasonableness. 104 The Commonwealth and Victorian defences are different in allowing conduct that is reasonably and in good faith: (a)

in the performance, exhibition or distribution of an artistic work;

(b)

in the course of any statement, publication, discussion or debate made or held, or any other conduct engaged in, for: (i) any genuine academic, artistic, religious or scientific purpose; or (ii)

(c)

any purpose that is in the public interest; or

in making or publishing a fair and accurate report of any event or matter of public interest. 105

Accordingly, in all jurisdictions free speech per se, unrelated to an identified ground, is not a good defence. 106 There is a distinction between these two sets of defences in relation to fair reports. In New South Wales, Queensland and South Australia the defence is limited to fair reports of public acts which racially vilify. There is no broader defence of fair reporting. 107 By contrast, a broader defence is available under the Commonwealth and Victorian legislation, which allows conduct that is reasonably and in good faith in making or publishing a fair accurate report of any event or matter of public interest. “A fair report” in this sense would be characterised by the reporter honestly striving for accuracy, fairness and disclosure of all essential facts, as opposed to suppressing relevant available facts or placing a distorting emphasis on particular facts. It is distinguishable from opinion and editorial commentary, which involves a person offering a subjective perspective on objective facts. 108 103

106

Anti-Discrimination Act 1977 (NSW), s 20C(2); Anti-Discrimination Act 1991 (Qld), ss 124A, 131A; Civil Liability Act 1936 (SA), s 73(1). Anti-Discrimination Act 1998 (Tas), s 55. Racial Discrimination Act 1975 (Cth), s 18D; Racial and Religious Tolerance Act 2001 (Vic), s 11. See, for example, Kelly-Country v Beers (2004) 181 FLR 352 (comedian who dressed as an Aborigine held entitled to the protection of s 18D since his conduct was reasonable and in good faith in the performance of his artistic acts as an entertainer). Wagga Wagga Aboriginal Action Group v Eldridge (1995) Eq Opp Cases 92-701 at 78,265-78,266.

107 108

Jones v Trad [2011] NSWADTAP 19 at [88]. See analysis in Trad v Jones (No 3) [2009] NSWADT 318 at [196]-[197].

104 105

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A robust approach is taken to whether conduct is reasonable and in good faith. A finding of unreasonableness or lack of good faith will not be made too readily. 109 The respondent bears the onus of establishing that one of the defences applies and that it acted both reasonably and in good faith. 110 The complainant has no obligation to lead evidence which casts doubt on the reasonableness or shows an absence of good faith in the respondent’s conduct. 111 “Reasonableness” and “good faith” in these defences are regarded as distinct elements. The 2014 Abbott Government “exposure draft” of proposed amendments to s 18D also contained significant changes to the defence to vilification under Commonwealth law. The draft proposed the repeal of the s 18C and its replacement with a defence where the “words, sounds, images or writing spoken, broadcast, published or otherwise communicated [were] in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter”. 112 The proposal would therefore have removed the dual requirement of reasonableness and good faith and specifically included political discussion as a new ground for defence.

Reasonableness [9.300] Whether the public act, or communication in the case of the media, is “reasonable” depends on an objective determination whether in the circumstances of the case it has a rational relationship to one of the protected activities and is not disproportionate to what is needed to carry out that activity. 113 One of the hallmarks of reasonableness will be fair consideration and interpretation of the available evidence. 114 Another will be a capacity to listen and engage rationally, although not necessarily agree with, other points of view. 115 It has been suggested that it may be useful for these purposes to consider the kinds of matters identified in s 30(3) of the uniform defamation legislation as guidelines for determining whether a publication was reasonable for the public interest in the context of defamation. 116 “Reasonableness” of a communication like a newspaper publication must be assessed as at the time of the publication, not at some future time. Accordingly, the subsequent publication of articles or letters that provided balance to the views expressed in the subject article will not be relevant to the question whether publication of the subject article itself was reasonable. 117

109 110

Bryl v Nowra and Melbourne Theatre Company (1999) EOC 93-022. Toben v Jones (2003) 129 FCR 515.

111 112 113 114 115

Kazak v John Fairfax Publications Ltd [2000] NSWADT 77 at [86]. See http://www.ag.gov.au/consultations/pages/ ConsultationsonamendmentstotheRacialDiscriminationAct1975.aspx. Bropho v Human Rights and Equal Opportunity Commission (2004) 204 ALR 761 at 782 per French J. Trad v Jones (No 3) [2009] NSWADT 318 at [209]. Trad v Jones (No 3) [2009] NSWADT 318 at [210].

116 117

Jones v Trad [2011] NSWADTAP 19 at [38]. For a consideration of the s 30(3) guidelines, see [3.1030]. Kazak v John Fairfax Publications Ltd [2000] NSWADT 77 at [90].

[9.300] 637

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It has been said that in the case of dramatic or artistic works a margin of tolerance should be exercised when deciding whether it is unreasonable. 118 In relation to the Racial Discrimination Act at least it has been that, for a respondent, a consideration of the concept of reasonableness is therefore manifested in two ways. The first is whether the comment as published discusses legitimate matters of public concern and is therefore not one that objectively gives offence as well as not being published “because of” race for the purposes of s 18C, and the second is whether the publication of the comment was done “reasonably” for the purposes of the exemptions created by s 18D. 119 Accordingly, if the respondent is unable to make out that it was reasonable for a publisher, because the comment objectively gave offence and was made “because of” race, then the respondent may be taken to have not only contravened s 18C but also will be unable to claim in any exemptions under s 18D because its act of publication will not have been done “reasonably”. 120 Example

Clarke v Nationwide News Pty Ltd (t/as The Sunday Times) [9.310] Clarke v Nationwide News Pty Ltd (t/as The Sunday Times) (2012) 289 ALR 345 The respondent published a report on an accident involving a stolen motor vehicle in which four of five young male occupants were killed in its The Sunday Times newspaper. It subsequently published readers’ comments on the newspaper’s website. These comments were moderated by the respondent prior to publication. The applicant, who was an aboriginal Australian, was the mother of three of the deceased boys and aunt of the fourth boy killed. She claimed that a number of the readers’ comments published by the respondent or in breach of s 18C of the Racial Discrimination Act 1975 (Cth). The respondent argued that the publications were made because of a desire to encourage public discussion about legitimate matters in the public interest, including Aboriginal disadvantage, how best to remedy it, and the question of personal responsibility. Barker J of the Federal Court held that unless the respondent could make out that each comment complained of was reasonably published by it, then the court could infer that one of the reasons for the publication of the comment was because of the Aboriginal race of the applicant and the members of the group to which she belonged. After viewing each comment relied upon by the applicant in turn, his Honour found that four of the comments were not published reasonably in the circumstances. That meant that not only were those comments in contravention of s 18C as being offensive and “because of” the Aboriginal race, but also the respondents were not able to rely upon

118

Bryl v Nowra and Melbourne Theatre Company (1999) EOC 93-022; Kelly-Country v Beers (2004) 181 FLR 352 at 380-381.

119 120

Clarke v Nationwide News Pty Ltd (t/as The Sunday Times) (2012) 289 ALR 345 at [197]. Clarke v Nationwide News Pty Ltd (t/as The Sunday Times) (2012) 289 ALR 345 at [198].

638 [9.310]

Chapter 9 – Offensive Publications Clarke v Nationwide News Pty Ltd (t/as The Sunday Times) cont. the public discussion exemption in s 18D because it could not show that the comments were published reasonably.

Good faith [9.320] By contrast, “good faith” requires the exercise of prudence, caution and diligence in taking due care to avoid or minimise the risk of harm and the degree of harm likely to result from the words or acts. 121 Two judges of the Full Court of the Federal Court held that good faith has both subjective and objective aspects. 122 It requires a subjectively honest belief in the truth of the act or statement as well as absence of spite, ill-will or other improper will. 123 It has been suggested that at a minimum, whatever else may be needed, the defence requires an honest attempt to put forward a contribution embodying a genuine purpose, or genuine purpose in the public interest, or a fair comment by way of genuine relief. 124 The absence of subjective good faith, such as a dishonest, knowing or reckless pursuit of a purpose caught by the prohibition, is sufficient to exclude the protection. Further, an objective determination is made as to whether the act or words can be regarded as having been done or said in good faith having due regard to the degree of harm likely to arise and the extent to which the act or words may be destructive of the object of the statute. 125 However, there is now contrary authority from two State Courts of Appeal that has held that good faith involves no more than a broad subjective assessment of the defendant’s intentions and that there is no reason for loading objective criteria into the concept. 126 In any case the use of deliberately provocative and inflammatory language is likely to be regarded as indicating an absence of good faith. 127

121

Bropho v Human Rights and Equal Opportunity Commission (2004) 204 ALR 761 (FCAFC).

122

Bropho v Human Rights and Equal Opportunity Commission (2004) 204 ALR 761 at [96] per French J, [141] per Lee J (who dissented in the result). Carr J, who was the other member of the majority, did not deal with the issue. See also Jones v Trad [2011] NSWADTAP 19 at [41]. Western Aboriginal Legal Services Ltd v Jones [2000] NSWADT 102 at [127]; Bryl v Nowra and Melbourne Theatre Company (1999) EOC 93-022; Kelly-Country v Beers (2004) 181 FLR 352 at 382. Toben v Jones (2003) 129 FCR 515 at [161] per Allsop J. Bropho v Human Rights and Equal Opportunity Commission (2004) 204 ALR 761 at 787 per French J, 795 per Lee J. Catch the Fire Ministries Inc v Islamic Council of Victoria (2006) 15 VR 207 at 239 per Nettles JA with whom Neave J agreed (in the context of religious vilification); followed by Sunol v Collier (No 2) (2012) 289 ALR 128 at [40] per Bathurst CJ (Allsop P and Basten JA agreeing). Toben v Jones (2003) 129 FCR 515 at [45]-[46] (postings on an internet website included references intended to smear Jews as murderers).

123 124 125 126

127

[9.320] 639

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Example

Trad v Jones (No 3) [9.330] Trad v Jones (No 3) [2009] NSWADT 318 In several broadcasts over a number of days Jones, a popular talkback radio host and commentator, made observations, expressed opinions and read letters and emails from listeners concerning Lebanese Muslims. The broadcasts had a number of themes which Jones related together, including a speech by a Lebanese-Muslim cleric which Jones interpreted as an incitement of sexual assaults by Muslim men upon non-Muslim women; and the anti-social behaviour of certain “car hoons”, identified by Jones as Lebanese Muslim youths. His commentary included the assertion that “Lebanese males in their vast numbers not only hate our country and our heritage … rape, pillage and plunder a nation that’s taken them in … What did we do as a nation to have this vermin infest our shores? … Tell me we don’t have a national security problem in the making …” The New South Wales Administrative Decisions Tribunal held that while Jones cited and quoted emails, letters, interviews and comments made by his listeners or interviewees, he was not merely engaged in “fair reporting”. He used that material for the basis of his repeated editorials and commentary and sought to engage in debate and controversy about those stories. Further, while the matters about which Jones was broadcasting, including the cleric’s speech to a large audience and anti-social behaviour by car hoons were matters of public interest, he could not discharge the onus of showing that his commentary was reasonable and in good faith. His claim that “vast numbers of Lebanese males” were raping, pillaging and plundering the country and constituted a threat to national security was built on a very flimsy foundation of evidence, namely the misbehaviour of a relatively small number of young men. Rather than dispassionately analysing the evidence, Jones appeared to be induced or stimulated by his own preconceptions. Instead of engaging in a rational debate with anyone from the Lebanese Muslim community, he was intent on holding them to account for the misdeeds he imagined they had committed. Jones also went beyond the bounds of reasonableness by exaggerating the effects and significance of illegal street car racing and linking it with pack rapes several years before and national security issues. Moreover Jones could not show that he acted in good faith. The overwhelming impression was that his material was imprudent, incautious, inflammatory and motivated by prejudice against those whom he apparently believed to be a threat to the culture to which he was attached. His reckless hyperbole was calculated to agitate and excite his audience without providing them with much in the way of solid information.

[9.340] On appeal to the Administrative Decisions Tribunal Appeal Panel these findings were upheld and were not challenged on further appeal on other grounds to the New South Wales Court of Appeal. 128 However, the Court of Appeal held that the Appeal Panel, after finding that the Tribunal had not properly dealt with the broadcaster’s defence, erred in implicitly making a finding of its own that the broadcaster had also not acted reasonably and 128

Jones v Trad (2013) 86 NSWLR 241 at [10].

640 [9.330]

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in good faith. This finding by the Appeal Panel was based on the fact that no employee had activated the seven second “dump button” that enabled an interception of a broadcast on prudential grounds nor interceded with Jones to suggest that he should modify his rhetoric or lack of fairness and balance. 129 These were matters that more correctly ought to have been remitted to the Tribunal for its determination based on evidence properly admitted and argued. Poor research and distortions of the truth, especially when combined with inflammatory language and a cynical tone, are also unlikely to satisfy the dual requirement of reasonableness and good faith. Example

Eatock v Bolt [9.350] Eatock v Bolt (2011) 197 FCR 261 In an article entitled “It’s so hip to be black” in print and “White is the new black” online and a subsequent article entitled “White fellas in the black” published by the Herald Sun newspaper columnist Andrew Bolt imputed that fair-skinned Aboriginal people were not genuinely Aboriginal and instead were only pretending to be Aboriginal so that they could enhance their own career opportunities, engage in political activism and take career opportunities away from “genuine” Aboriginal persons. Bromberg J of the Federal Court held that a reader would have presumed that as a journalist Bolt would have undertaken research and presented relevant facts. The reader would understand that the assertions that individuals were not sufficiently Aboriginal in order to be genuinely self-identifying as Aboriginal would be based upon Bolt’s research of both biological and cultural considerations. However, the online research that Bolt conducted did not amount to a diligent attempt to make reasonable enquiries. Relevant facts about Aboriginal cultural upbringing for many of the individuals identified in the article were omitted. The imputations as to the motivation of witnesses identified as Aboriginal were based on facts which were either untrue or distortions of the truth. The errors of fact in the articles, distortions of the truth, omissions of relevant facts, combined with the use of inflammatory and provocative language and a mocking, derisive and cynical tone, a lack of proportionality between the approach and the point he was seeking to make, and the lack of care and diligence in minimising the conduct, all led to the conclusion that Bolt did not act reasonably and in good faith. While there was a public interest in discussing whether there was an appropriate allocation of awards and opportunities to Aboriginal people, there was no rational relationship between that matter of public interest and the assertions made by Bolt that the successful recipients

129

Jones v Trad [2011] NSWADTAP 19 at [90].

[9.350] 641

Australian Media Law Eatock v Bolt cont. were not genuinely Aboriginal. As a consequence, neither Bolt nor the newspaper could not rely upon the public interest defence under s 18D.

Remedies [9.360] If after an enquiry the complaint is established, the State legislation typically provides that the relevant Tribunal, such as an Administrative Decisions Tribunal or Anti-Discrimination Tribunal, may order the respondent to perform acts to redress the wrong, including publication of an apology or retraction, or the development and implementation of a program aimed at eliminating racial vilification. 130 A retraction is normally only appropriate where what has been published by a respondent is false. 131 An apology may be suitable in the case of vilification where it is characterised as a public acknowledgment of wrongdoing rather than as a forced statement of regret. 132 The Tribunal also normally has power to award compensation to complainants. 133 In South Australia, civil victimisation which results in detriment in the form of injury, damage, loss or distress in the nature of intimidation, harassment or humiliation is a statutory tort for which damages only may be awarded. 134 In relation to damages awards for racial vilification in the other jurisdictions, it has been said that these should not be too low so as to diminish respect for the policy underlying the Acts. 135 When determining the appropriate amount the Tribunal, when assessing whether any particular loss or damage was attributable to the respondent’s conduct, may be assisted by common law rules governing claims in tort but are not bound to follow them. 136 While often the injury will be intangible – such as injury to feelings, distress, and humiliation – and therefore difficult to measure, that is not a basis to ignore those items. 137

130

See, for example, Trad v Jones (No 3) [2009] NSWADT 318 at [245] where the NSW Administrative Decisions Tribunal Appeal Panel ordered, inter alia, that the respondent radio broadcaster undertake a critical review of its policies and practices on racial vilification and the training provided for employees including all “on air” personnel with a view to determining whether they were adequate to ensure compliance with the racial vilification laws.

131 132

Jones v Scully (2002) 120 FCR 243 at [245]; Sunol v Collier [2006] NSWADTAP 51 at [54]. Sunol v Collier [2006] NSWADTAP 51 at [54]; see also Burns v Radio 2UE Sydney Pty Ltd [2004] NSWADT 267 at [29]-[30] in the context of homosexual vilification (as to which see [9.520]). See, for example, Civil and Administrative Tribunal Act 2008 (ACT), s 71; Anti-Discrimination Act 1977 (NSW), s 113; Anti-Discrimination Act 1991 (Qld), s 209; Anti-Discrimination Act 1998 (Tas) s 90; Civil and Administrative Tribunal Act 1998 (Vic), s 121. Civil Liability Act 1936 (SA), s 73(3). The total amount of damages that may be awarded from the same act or series of acts cannot exceed $40,000: s 73(4). Horne v Press Clough Joint Venture (1994) EOC 92-556. Commissioner of Police, NSW v Mooney (No 3) (EOD) [2004] NSWADTAP 22 at [27]; Trad v Jones (No 3) [2009] NSWADT 318 at [236]. Trad v Jones (No 3) [2009] NSWADT 318 at [237].

133

134 135 136 137

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Complaints of acts done contrary to the Commonwealth Act are made to the Human Rights and Equal Opportunity Commission. 138 The complaint might then be referred to the President. The President might attempt to conciliate the dispute or might terminate the complaint for a range of reasons, ranging from the alleged breach not being made out or merely being trivial, to the matter better being dealt with by a court. 139 In the latter case the court has power to make such orders as it sees fit. 140 For example, in Clarke v Nationwide News Pty Ltd (t/as The Sunday Times) 141 it was held that, apart from an award of $12,000 damages to the applicant, a declaration that s 18C had been breached was likely bring a sense of justice for those that have suffered as a result of the vilification caused by publishing offensive reader’s comments on a newspaper’s website, and would serve as a reminder to the respondent newspaper and media outlets generally of the requirements of the Act. It was also thought appropriate to order the respondent not to repeat or continue such behaviour and would ensure that the offensive posts, if they were still able to be accessed by the public on the website, were promptly taken down. Similarly, in Eatock v Bolt (No 2) 142 it was held that the appropriate remedy was for declarations to be made setting out the elements of the conduct by the columnist and newspaper which constituted a contravention of s 18C and why the exemptions under s 18D were not established, the columnist and the newspaper to be restrained from republishing the two articles in whole or substantial part, to allow the newspaper to continue to publish two articles in its archives so long as a corrective notice was prominently displayed alongside them when they were accessed, and for the newspaper to be ordered to publish a corrective notice in the print and online editions in a prominent position adjacent to the columnist’s column over two weeks in a form and with content determined by the court. The court thought that the media coverage that the finding that the columnist and newspaper had breached s 18C did not remove the need for publication of a corrective notice. A corrective notice was not unnecessary or punitive but rather served a broader informational and educative purpose. 143 However, the complainant’s conduct after the alleged unlawful act, including delay in making a complaint or cordial dealings with the offender, may be evidence that the act did not have a serious impact on the complainant and may result in a reduced damages award. Other mitigating factors include an early apology and demonstrated remorse. 144

138

Human Rights and Equal Opportunity Commission Act 1986 (Cth), s 46P.

139 140

Section 46PH. Section 46PO(4).

141 142

Clarke v Nationwide News Pty Ltd (t/as The Sunday Times) (2012) 289 ALR 345 at [333]-[334]. Eatock v Bolt (No 2) (2011) 284 ALR 114.

143 144

Eatock v Bolt (No 2) (2011) 284 ALR 114 at [23]. Jacobs v Fardig (1999) EOC 93-016.

[9.360] 643

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Blasphemy and religious vilification Blasphemy Basis of offence [9.370] Blasphemous libel is an indictable offence at common law, which has a long history dating back to mid-17th century England when it was treated as akin to heresy. The emergence of the Darwinian evolutionary theory saw a shift in focus of the offence away from its origins in denial of the Christian faith and its doctrines. 145 Today blasphemy is said to embrace publications which contain any contemptuous, reviling, scurrilous or ludicrous matter relating to God, Jesus Christ or the Bible, or the formularies of the Church of England as by law established, and which is calculated to outrage the feelings of Christians. 146 It is now not blasphemous (as it once was) to speak or publish opinions hostile to the Christian religion, or to deny the existence of God, if the publication is couched in decent and temperate language. The test to be applied is as to the manner in which the doctrines are advocated and not as to the substance of the doctrines themselves. 147 Example

R v Lemon [9.380] R v Lemon [1979] AC 617 A magazine called Gay News published a poem which purported to describe in explicit details acts of sodomy and fellatio with the body of Christ immediately after His death and ascribed to Him during His lifetime promiscuous homosexual practices with the Apostles and other men. Mrs Mary Whitehouse of the Festival of Light brought a private prosecution alleging that the poem and an accompanying illustration vilified Christ in His life and His crucifixion. The House of Lords held that a blasphemous libel is matter calculated to outrage the feelings of Christians. The jury convictions of the editor and publisher of the magazine were accordingly upheld.

[9.390] The rationale for blasphemy is that Christianity is by law the established religion of England and therefore part of the constitution of that country. 148 The gist of blasphemy, therefore, is its supposed tendency to “shake the fabric of society generally”. However, there are differing views as to whether it is a requirement that the publication need to also provoke 145 146 147 148

See, for example, Lord Coleridge CJ in R v Ramsay and Foote (1883) 15 Cox CC 23. R v Lemon [1979] AC 617 at 665; Pell v Council of the Trustees of the National Gallery of Victoria [1998] 2 VR 391 at 392; Green v The City of Westminster Magistrates’ Court [2007] EWHC 2785 at [11]. R v Lemon [1979] AC 617 at 665; R v Chief Metropolitan Stipendiary Magistrate, Ex Parte Choudhury [1991] 1 QB 429 at 446-447. Gathercole’s Case (1838) 2 Lewin 237; 168 ER 1140 at 254 (Lewin), 1145 (ER).

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a breach of the peace. It has been held by high authority that while blasphemy may provoke an immediate breach of the peace, such a breach is not an essential feature. 149 Nevertheless more recent authority has suggested that in order for blasphemous material to be a crime the community (or society) generally should be threatened. 150 Example

R (on Application of Green) v The City of Westminster Magistrates’ Court [9.400] R (on Application of Green) v The City of Westminster Magistrates’ Court [2007] EWHC 2785 The stage musical Jerry Springer: the Opera parodied a television chat show renowned for its dysfunctional guests who had lurid, and largely sexual, stories to tell. The second act portrayed the main character imagining his descent into hell, where he hosted a show which included God, Christ, Mary, Satan and Adam and Eve as his guests, who proceeded to make lurid revelations and who were excessive in their language and behaviour. It was held in the High Court that the musical, whether tasteful or objectionable or otherwise, had as the object of its attack not religion but the exploitative television chat show. In the context of the show as a whole it could not reasonably be regarded as aimed at, or an attack on, Christianity or what Christians hold sacred. Crucially, even if it were regarded as blasphemous the musical had been performed regularly in major theatres in London for a period of nearly 2 years without any sign of it undermining society or occasioning civil strife or unrest. There was therefore no evidence of a tendency to threaten society as a whole by endangering the peace.

Religions other than Christianity [9.410] Despite the fact that England is now a multicultural country, blasphemy does not extend to attacks on Judaism, Islam or any other religion, and is confined solely to vilification of Christianity. Example

R v Chief Metropolitan Stipendiary Magistrate, Ex Parte Choudhury [9.420] R v Chief Metropolitan Stipendiary Magistrate, Ex Parte Choudhury [1991] 1 QB 429

149 150

Bowman v Secular Society Ltd [1917] AC 406 at 459-460 per Lord Sumner; R v Lemon [1979] AC 617 at 656 per Lord Edmund-Davies, 662 per Lord Scarman. R (on the application of Green) v The City of Westminster Magistrates’ Court [2007] EWHC 2785.

[9.420] 645

Australian Media Law R v Chief Metropolitan Stipendiary Magistrate, Ex Parte Choudhury cont. A member of the public laid information and sought summonses against the author and publishers of the book The Satanic Verses, alleging that they had published or caused to be published a blasphemous libel against Allah and the Islamic religion. The magistrate refused to issue the summonses on the ground that the common law offence of blasphemy was restricted to the Christian religion. The English Court of Appeal held that the magistrate was correct in refusing to issue the summonses. Although England was now an increasingly plural society where there were no longer any restraints or restrictions on those practising religions other than Christianity, for historical reasons the common law offence of blasphemy was clearly restricted to a scurrilous vilification of the Christian religion and there were sound policy reasons against the court extending the offence. Such a question was one solely for Parliament.

[9.430] In England this anomaly has been justified, albeit unsatisfactorily, on the basis that it would become virtually impossible by judicial decision to set sufficiently clear limits to the offence. It is suggested that the inherent difficulties include what kinds of religions are to be protected and how “religion” is to be defined; the fact that while juries might be expected (or were expected in the last century) to understand the tenets of Christianity they would not be expected to be as familiar with other religions; the fact that there would need to be expert evidence, no doubt for both the prosecution and defence; the difficulties that presumably would arise where different sects of the same religion had differing views and the publication scandalised one sect and not another; and the fact that since it has been held that the only mental element in the offence is the intention to publish the words complained of, there would be a serious risk that words might, unknown to the author, scandalise and outrage some sect or religion. 151

Blasphemy in Australia [9.440] As part of the common law, blasphemy may, in theory at least, still be of relevance in New South Wales, Victoria, South Australia, and the Northern Territory. 152 In Tasmania, blasphemy is a crime pursuant to s 119 of the Criminal Code 1924, where prosecutions require the consent of the Attorney-General. Blasphemy was not included in the Criminal Code of either Queensland and Western Australia, effectively abolishing the offence, and it was expressly abolished in the Australian Capital Territory. 153 Similarly, blasphemy does not form part of the Criminal Code in the Northern Territory, although there is an argument that this 151 152

153

R v Chief Metropolitan Stipendiary Magistrate, Ex Parte Choudhury [1991] 1 QB 429 at 448. In New South Wales there is at least implicit recognition of the offence by virtue of the Crimes Act 1900 (NSW), s 574 which states that a publication will not be blasphemous if it is by way of argument or statement, and not for scoffing or reviling, nor of violating public decency, nor in any manner tending to a breach of the peace. In New South Wales see also the Defamation Act 1974, s 49(1) which abolished common law criminal libel but left unaffected “the law relating to blasphemous, seditious or obscene libel”. See also, for example, Defamation Act (NT), ss 5, 6. Law Reform (Repeal and Consolidation) 1996 (ACT), s 4.

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Code does not intend to entirely displace the common law. While there is no Commonwealth legislation making blasphemy an offence as such, several statutes include prohibitions on blasphemous material. 154 It seems that there has only ever been one prosecution in New South Wales, resulting in the 1871 conviction, imprisonment and fining of one William Lorando Jones for “proclaiming the Bible as a mass of lies”. The last prosecution for blasphemy in Australia resulted in the conviction in Victoria in 1919 of the editor of Ross’s Magazine of Protest, Personality and Progress, an “aggressively socialist, anti-militarist, atheist and anti-clerical” publication. 155 On the other hand, in 1998 the Catholic Archbishop of Melbourne brought a private action seeking an injunction to restrain an art gallery from exhibiting a photograph of a crucifix immersed in urine entitled Piss Christ on the grounds that it constituted blasphemy. 156 Harper J in the Supreme Court of Victoria noted that there was no dispute that the photograph was scurrilous, insulting and offensive to the Christian faith and had outraged the feelings of Christians. However, even assuming that blasphemy was a common law offence in Victoria, it was not demonstrated here because there was no evidence of unrest of any kind following or likely to follow the exhibit of the photograph. 157 In any event, a civil remedy-like injunction was inappropriate to provide relief for a criminal offence. Moreover, while it had been held in England that it is only necessary for the prosecution to show an intention to publish the particular material and not an actual intention to blaspheme, 158 this position may be open to challenge in Australia where greater emphasis is placed on proof of intention to commit a crime. 159 The continued existence of the offence of blasphemy at common law in Australia may be open to question. 160 In the first place, there may be an issue whether it formed part of received law since it may not have been law applicable to the circumstances in the new colony. 161 Also, the foundation of the offence as being an attack on the State’s religion and part of its constitution has never been valid in Australia. The Commonwealth is precluded by the Constitution from establishing a State religion, and none of the Australian jurisdictions has ever done so. Australia’s distinctly multicultural society suggests an additional reason for not recognising an offence against only one religion. Further, the common law itself recognises a doctrine called “desuetude” whereby laws may lapse if disused for a prolonged period: an argument that might be applied to an offence not prosecuted by the State in this country since 154 155 156 157

See also, for example, Broadcasting Services Act 1992 (Cth), Sch 2 cll 7 – 10; Customs (Prohibited Imports) Regulations (Cth). See generally NSWLRC, Blasphemy, Discussion Paper 24 (1992), pp 39-43. NSWLRC, Blasphemy Discussion Paper 24 (1992), p 17. Pell v Council of the Trustees of the National Gallery of Victoria [1998] 2 VR 391.

158 159

An irony of this ruling was that after the display went ahead, in an apparent breach of the peace the photograph was attacked and damaged by two youths with a hammer: see K McDonald, “Everything old is new again” (1998) 1 TeleMedia 142 at 143. R v Lemon [1979] AC 617. See generally NSWLRC, Blasphemy Discussion Paper 24 (1992), pp 27-31.

160 161

Pell v Council of the Trustees of the National Gallery of Victoria [1998] 2 VR 391 at 394. Cf Ogle v Strickland (1987) 13 FCR 306 at 317.

[9.440] 647

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1919. 162 Until blasphemy is abolished by statute or finally declared by a court to not form part of the common law in Australia, its continued existence cannot be discounted. While there may be a reluctance on the part of authorities to prosecute for the offence, the door is still open to individuals or organisations with sufficient interest and sufficient wherewithal to commence a private prosecution, as was shown in the Gay News, Satanic Verses and Piss Christ cases.

Religious vilification Prohibited conduct [9.450] In the Victorian Piss Christ case it was said that there might be a place in a multicultural society like Australia for an offence of blasphemous libel of “any recognised faith” rather than an offence confined to the Christian faith alone. 163 In any event, in some jurisdictions the role blasphemy previously occupied may now be taken up by other measures. Queensland, Victoria and Tasmania now have legislation that prohibits incitement of religious hatred. 164 These religious vilification provisions mirror the racial vilification provisions, prohibiting public acts which “incite hatred towards, serious contempt for, or severe ridicule” on the ground of religious belief or religious belief or activity 165 or religion. 166 Example

Catch the Fire Ministries Inc v Islamic Council of Victoria [9.460] Catch the Fire Ministries Inc v Islamic Council of Victoria (2006) 15 VR 207 A representative complaint was lodged against an evangelical Christian Church in respect of a seminar, newsletter and website which were alleged to have attacked the Islamic faith. The seminar, which was held over two months after the September 11, 2001 terrorist attacks in the United States, featured a presenter who stated or implied,

162

The primary hurdle for this argument to overcome is the at least implicit recognition of the offence in legislation such as the Crimes Act 1900 (NSW), s 574 and Defamation Act (NT), ss 5, 6: NSWLRC, Blasphemy Discussion Paper 24 (1992), pp 17-18. In 1977 the South Australian Criminal Law and Penal Methods Reform Committee recommended the abolition in that State of the common law offence of blasphemy, which it described as “anachronistic”. In 1992 the New South Wales Law Reform Commission proposed four options in relation to blasphemy in that State ranging from doing nothing to either creating new statutory offences or abolishing the offence altogether. As yet no action has been forthcoming in either State.

163 164

Pell v Council of the Trustees of the National Gallery of Victoria [1998] 2 VR 391 at 394. As noted in [9.30] the Commonwealth enacted Criminal Code 1995 (Cth), s 80.2(5) which creates an offence where a person urges a group or groups (whether distinguished by race, religion, nationality or political opinion) to use force or violence against another group or groups (as so distinguished) thereby threatening the peace, order and good government of the Commonwealth. In the same way that the law whilst designed as primarily a sedition law also provides a form of prohibition against racial vilification, it also provides a form of prohibition against religious vilification. The section is addressed in [10.80]. Anti-Discrimination Act 1998 (Tas), s 19(d); Racial and Religious Tolerance Act 2001 (Vic), ss 8 (civil liability), 25 (criminal offence). The Victorian statute refers to “engage in conduct” rather than “public act”. Anti-Discrimination Act 1991 (Qld), ss 124A, 131A.

165 166

648 [9.450]

Chapter 9 – Offensive Publications Catch the Fire Ministries Inc v Islamic Council of Victoria cont. inter alia, that the Koran promoted violence; that Muslims intended to impose Islam on Australians; that Muslims were liars; that non-Muslims would ultimately be forced to leave Australia and that Muslims offered people money to convert to Islam. There was evidence that the presentation was delivered in a sarcastic and mocking tone. The newsletter made similar claims including that Muslims would rapidly increase their percentage of the Australian population and ultimately outnumber “Australians” and that Muslims would perpetrate terrorist attacks in Australia similar to those that occurred on September 11, 2001. The website also made such claims but in addition alleged that Islam was an inherently violent religion and that it was not possible to separate Islam from terrorist groups. At first instance the Victorian Civil and Administrative Tribunal held an ordinary, reasonable person would regard the Church as having engaged in conduct that incited hatred against, serious contempt for or revulsion or severe ridicule of Muslims, and which therefore constituted religious vilification. The method of the presentation of the seminar was regarded as significant in demonstrating an intention to vilify. Similar observations were made with respect to the newsletter and website. On appeal to the Victorian Court of Appeal, it was held that the Tribunal had addressed the wrong questions. The phrase “on the ground of” in the statute did not require a causal connection between the defendant’s conduct and the religious belief. The intention or motive of the defendant is irrelevant under the State Act. Instead the question to be answered was whether the natural and ordinary effect of the statements in each of the seminar given to an audience comprising like-minded persons, the newsletter and the website was, in the current social context, to encourage the hatred of Muslims based on their religious beliefs. In making this determination, the effect on ordinary members of the audience to whom the statements were directed is to be considered, rather than an ordinary, reasonable person. Accordingly, the Tribunal had erred on two points of law. The matter was therefore remitted to the Tribunal to determine the matter on the basis of the Court of Appeal’s findings.

[9.470] When considering the effect of a publication, it must be taken as a whole rather than by examining components in isolation. Publications must also not be divorced from their context. 167

Meaning of “religion” [9.480] None of the statutes in Queensland, Victoria and Tasmania define “religion” for the purpose of vilification laws. In a different context, the High Court acknowledged that it was not possible to reach a definition of “religion” which was universally satisfying. Instead, the more important indicia of a religion were identified, so as to serve as guidelines rather than a conclusive test, namely: • a belief in the supernatural; • ideas which relate to man’s nature and place in the universe; 167

Catch the Fire Ministries Inc v Islamic Council of Victoria Inc (2006) 15 VR 207.

[9.480] 649

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• recognition by adherents that those ideas require them to observe particular standards of conduct; and • the existence of an identifiable group of adherents. The determination is objective, not subjective. 168 No distinction is made between theistic and non-theistic systems of belief, lest “religion” be defined as to exclude a wide range of established belief systems including Buddhism and classical Hinduism. 169 Such observations may equally apply to “religion” for the purposes of the vilification laws. 170

Defences [9.490] Queensland provides for the same defences as in the racial vilification provisions, namely: • fair reporting of acts of public religious vilification; • publications which would be protected by absolute privilege in defamation proceedings; and • any public act done “reasonably and in good faith”, for academic, artistic, scientific or for research purposes or for other purposes in the public interest including the discussion or debate of issues. Similar defences are available in Tasmania, although for the purposes of the third defence the defendant need only act in good faith, with no requirement of reasonableness. The Victorian statute also provides for the same defences for religious vilification as are available for religious vilification in that jurisdiction, that is for conduct that is reasonably and in good faith: (a)

in the performance, exhibition or distribution of an artistic work;

(b)

in the course of any statement, publication, discussion or debate made or held, or any other conduct engaged in, for: (i) any genuine academic, artistic, religious or scientific purpose; or (ii)

(c)

any purpose that is in the public interest; or

in making or publishing a fair inaccurate report of any event or matter of public interest. 171

It is likely that in relation to the third defence in Queensland and Victoria the same objective approach will be taken to determining reasonableness as that taken in cases of racial vilification. 172 However, in Catch the Fire Ministries Inc v Islamic Council of Victoria Inc Nettles JA held that for the purposes of religious vilification under the Victorian statute “good faith” should only have a subjective element, rather than the more demanding subjective/

168 169 170

Church of the New Faith v Commissioner for Payroll Tax (Vic) (1983) 154 CLR 120 at 174. Church of the New Faith v Commissioner for Payroll Tax (Vic) (1983) 154 CLR 120 at 172-173. Cf Dixon v Anti-Discrimination Commissioner of Queensland [2005] 1 Qd R 33 at [19].

171 172

Racial and Religious Tolerance Act 2001 (Vic), s 11. Catch the Fire Ministries Inc v Islamic Council of Victoria Inc (2006) 15 VR 207 at 240 see [9.460].

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objective interpretation. 173 It is yet to be seen whether a similar view will be taken of the Queensland or Tasmanian defence, or whether the subjective/objective approach taken to the defences to racial vilification will be applied. 174 Under either view it may be that, for example, the treatment of religious beliefs in a demeaning and derogatory way designed to portray those beliefs in a bad light rather than in the context of a serious discussion may mean that such a treatment is not “reasonable and in good faith”. 175

Urging force or violence [9.500] As noted above in relation to racial vilification, anti-terror laws enacted by the Commonwealth included a new offence where a person intentionally urges another person or group to use force or violence against a targeted group, intending that force or violence will occur, where the targeted group is distinguished by race, religion, nationality, national or ethnic origin or political opinion. 176 Thus, whilst principally designed in the context of protecting the community against acts of terror, it is also a form of prohibition at a Federal level against religious vilification. 177

Codes of conduct [9.510] Religious vilification is also covered by the codes of practice that are developed by radio and television groups under the Broadcasting Services Act 1992 (Cth). 178 However, the codes of practice do not address how widely “religion” is to be interpreted for these purposes.

Vilification on other grounds [9.520] New South Wales, the ACT, Queensland and Tasmania also prohibit vilification on the ground of homosexuality/sexual orientation. 179 In Queensland, where the relevant ground is “homosexuality”, a bisexual person may claim vilification since the orientation of bisexuals includes a sexual inclination towards persons of their own gender. 180

173 174

175 176

Catch the Fire Ministries Inc v Islamic Council of Victoria Inc (2006) 15 VR 207 at 240. Bropho v Human Rights and Equal Opportunity Commission (2004) 204 ALR 761. In Burns v Laws [2008] NSWADTAP 32 at [71] the Bropho interpretation was preferred over that taken in Catch the Fire Ministries Inc v Islamic Council of Victoria Inc (2006) 15 VR 207 in the context of homosexual vilification under the New South Wales Act. Islamic Council of Victoria Inc v Catch the Fire Ministries Inc [2004] VCAT 2510 at 389. Criminal Code 1995 (Cth), ss 80.2A – 80.2B.

177 178

See [10.80]. See [14.940].

179

Anti-Discrimination Act 1977 (NSW), ss 49ZT – 49ZTA; Anti-Discrimination Act 1991 (Qld), ss 124A, 131A; Anti-Discrimination Act 1998 (Tas), s 19(c). See, for example Burns v Laws [2008] NSWADTAP 32. Owen v Menzies [2013] 2 Qd R 327.

180

[9.520] 651

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In addition New South Wales outlaws vilification on the ground of transgender 181 or HIV/AIDS status, 182 the ACT prohibits vilification on the ground of gender identity or HIV/AIDS status, Queensland prohibits vilification on the ground of gender identity 183 and Tasmania prohibits vilification on the ground of disability. 184 The defences as set out for racial and religious vilification are also available with respect to this prohibited conduct.

Obscenity and indecency Offence of being “obscene and indecent” Tendency to deprave and corrupt [9.530] The common law indictable offence of obscene libel may be traced back to the 1727 conviction of the publisher of a book called Venus in the Cloister (also known as The Nun in her Smock). 185 This case itself drew on the first conviction for obscenity in Sir Charles Sedley’s case in 1663. 186 Obscenity and indecency are now largely prohibited by statute, 187 but in the absence of precise definitions of “obscenity” or “indecency,” it is still relevant to make reference to common law understandings. The basis for the convictions in these early cases was what the court called its inherent power as “custos morum” of all the Sovereign’s subjects and the need to preserve public peace. The difficulty that arises in more modern times is whether the court should be acting as guardian (“custos”) of society’s morals or society’s manners, the term “morum” being capable of being translated as either. In other words, is the court the guardian of public decency or public morality, or both? 188 In 1868 one judge declared the test for obscenity to be one based on morality, in the sense of matter having a tendency to “deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall”. 189 However, such a test is beset with a number of problems, apart from the circularity of being based on a tendency to deprave and corrupt those who the matter may 181

Anti-Discrimination Act 1977 (NSW), ss 38S – 38T.

182 183 184 185

Anti-Discrimination Act 1977 (NSW), ss 49ZXB – 49ZXC. Anti-Discrimination Act 1991 (Qld), ss 124A, 131A. Anti-Discrimination Act 1998 (Tas), s 19(b). R v Curll (1727) 2 St R 788; 93 ER 849. The Star Chamber sentenced the offending publisher to be put in a pillory.

186

Sir Charles Sedley’s case (1663) 1 Sid 168; 82 ER 1036 (Sir Charles was convicted of going naked onto a balcony in Covent Garden and there urinating and throwing “unmentionably filled” bottles on the people below and abusing them in profane language).

187

See, for example, Crimes Act 1900 (NSW), s 578C; Criminal Code (NT), s 125C; Criminal Code 1899 (Qld), s 228; Criminal Code 1924 (Tas), ss 137 – 138; Summary Offences Act 1966 (Vic), s 17; Criminal Code (WA), s 204. In relation to obscene publications, films and computer games see now [9.640].

188

See J J Bray, “The juristic basis of the law relating to offences against public morality and decency” (1972) 46 ALJ 100 at 103. R v Hicklin (1868) LR 3 QB 360 at 371 per Cockburn CJ.

189

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deprave and corrupt. For example, whose moral code should be anointed to be the relevant benchmark? A traditional Christian set of values might have been appropriate in a past age, but is it still appropriate in a more liberal and tolerant time? Moreover, is a Christian set of values appropriate at all for a multicultural society, such as modern Australian society? On the other hand, is a secular set of norms appropriate when there are groups in society who adhere to the values promoted by their religion? 190 At one time Australian authorities were zealous in suppressing literature which was considered to have a tendency to “deprave or corrupt”. On occasions books were seized and impounded by customs officials merely on the strength of a provocative or suspicious looking title alone and without inquiry as to the contents: Shakespeare’s Venus and Adonis was once banned on this basis. In 1958, 178 books remained banned in Australia, including classics such as DH Lawrence’s Lady Chatterley’s Lover and Vladimir Nabokov’s Lolita and works by authors including James Joyce, Aldous Huxley and Ernest Hemmingway. In 1964 a “Commonwealth edition” of Harold Robbins’ The Carpetbaggers was published which included 125 cuts or alterations to the original manuscript ranging from single words to passages of 50 to 100 words. 191

Modern approach: community standards test [9.540] A change of approach to the issue of obscenity and indecency followed the High Court 1968 decision in Crowe v Graham, 192 which considered whether the publication of sexual material in two magazines breached the New South Wales obscenity statute. The appropriate test of obscenity or indecency, according to Barwick CJ, is whether the material, having regard to the manner in which it was presented, would offend “the modesty of the average man or woman in sexual matters” 193 or, as Windeyer J stated, that which is offensive to “contemporary standards, community standards … those currently accepted by the Australian community”. 194 It has been said that it is “assumed incontrovertibly” by the common law that obscene writings do deprave and corrupt morals, by “causing dirty-mindedness, by creating or pandering to a taste for the obscene” 195 so that the previous requirement of showing a tendency to deprave and corrupt now is no more than a legal fiction. 196 A test

190 191 192 193 194

195 196

See also Bray (1972) 46 ALJ at 103-104. M Pollak, Sense & Censorship (1990), pp 18, 23-24. In William Heinemann Ltd v Kyte Powell (1959) 103 CLR 351 the High Court upheld the ban of the book God’s Little Acre as being an obscene publication. Crowe v Graham (1968) 121 CLR 375. Crowe v Graham (1968) 121 CLR 375 at 379. Crowe v Graham (1968) 121 CLR 375 at 399. “Offensive to current standards of decency”, combined with a calculation to corrupt or deprave susceptible people, was a test for obscenity that had been previously suggested by Fullagar J in R v Close [1948] VLR 445 at 463. Crowe v Graham (1968) 121 CLR 375 at 394 per Windeyer J. Cf R Fox, “Obscenity and indecency” (1969) 3 Adel L Rev 392 at 399 where it was pointed out that there is no scientific evidence to support this assumption.

[9.540] 653

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based on current community standards of decency has since been widely accepted. 197 As a consequence, the test for obscenity has moved away from being one based on morality and is now one based on society’s manners. It is not clear whether “obscenity” or “indecency” extend beyond matters related to sex. In Crowe v Graham Barwick CJ and Kitto J accepted that there was a limitation to sexual matters but Windeyer and Owen JJ refused to express an opinion on the matter, it not being necessary to decide since the publications in question did in fact relate to matters of sex. Most statutes extend the definition of “obscenity” to include publications containing an “undue emphasis” upon matters of sex, horror, crime, cruelty or violence. In this context it has been held that “undue emphasis” should be construed as dealing with the particular in a manner which offends against the standards of the community. 198 In practice, however, most cases have dealt with sexual matters. 199 “Obscene” and “indecent” do not have the same denotation either in common parlance or the common law. What is obscene will also be indecent but what is indecent will not necessarily be obscene. “Obscene” denotes a higher degree of offensiveness. 200 While both deal with recognised standards of propriety, indecent is at the lower end of the scale and obscene is at the upper end of the scale. 201 Contemporary standards are to be applied, not the standards of some past age. It is therefore possible for matter which might once have been considered obscene to no longer be. 202 All the circumstances, including the manner and occasion of the publication, must be considered: something that is regarded as indecent in one context may be acceptable in another. As Barwick CJ remarked, sexual matters which “might pass muster in a tap room or smoke concert” could, when displayed in print to the reader of a magazine, be held to offend

197

198

199

200 201 202

See, for example, Bradbury v Staines; Ex Parte Staines [1970] Qd R 76 (FC); Mackinlay v Wiley [1971] WAR 3 (FC); Chance International Pty Ltd v Forbes (1968) 12 FLR 425 (NSW SC); Romeyko v Samuels (1972) SASR 529 (FC); Literature Board of Review v Kenmure Press Pty Ltd [1972] Qd R 346 (FC); Popow v Samuels (1973) 4 SASR 594 (FC); Sancoff v Holford [1973] Qd R 25 (FC); Pell v Council of the Trustees of the National Gallery of Victoria [1998] 2 VR 391. See, for example, R v Close [1948] VLR 445 at 465; Wavish v Associated Newspapers Ltd [1959] VR 57; Mackay v Gordon & Gotch (Australasia) Ltd [1959] VR 420; Neville v Lewis [1965] NSWR 1571; Literature Board of Review v Kenmure Press Pty Ltd [1972] Qd R 346. For a rare case dealing with undue emphasis on a matter other than sex, see Literature Board of Review v Invincible Press [1955] St R Qd 525 (Dragnet detective story picture book held to unduly emphasis crime, cruelty and violence). Dickey suggests that Australian courts would probably also hold indecency to extend to matters of excremental functions if they ever had to decide such a matter: “The legal concept of obscenity in Western Australia” (1975) 10 UWALR 223 at 237. Cf Pell v Council of the Trustees of the National Gallery of Victoria [1998] 2 VR 391 (photograph of crucifix immersed in urine). Phillips v Police (1994) 75 A Crim R 480 at 488. R v Stanley [1965] 2 QB 327 at 333; Pell v Council of the Trustees of the National Gallery of Victoria [1998] 2 VR 391 at 394. Romeyko v Samuels (1972) 2 SASR 529 at 560.

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the modesty of an average man or woman. 203 However, the focus is upon the publication itself: the character of the publisher or the publisher’s motives or objectives are irrelevant. Example

Scott v Reid [9.550] Scott v Reid [1979] Qd R 37 Copies of a number of issues of Forum magazine devoted to education in relation to sexual matters were seized by authorities as being obscene publications. The defence sought to lead evidence that the editorial board of Forum consisted of learned and responsible people, that responsible people subscribed to Forum and that the magazines would have therapeutic properties for people who had sexual problems. The Full Court of the Queensland Supreme Court held that the identity, motives and objectives of the publishers were immaterial to the question whether the publication was obscene. The publication had to be judged in the context of circumstances and setting of the publication. Some of the material in the publications in question could perhaps have been suitably found in a medical work or treatise. However, in the circumstances, taking into account the manner in which the material was presented, substantial parts of the publications were obscene and therefore unlawful.

[9.560] There can be no absolute condemnation of activities or language without a consideration of the surrounding context: there is no such thing as inherent obscenity. 204 Words such as “fuck” and “cunt” may therefore be obscene in some cases but not all, depending on the context of their usage. 205 In this connection, it is relevant to take into account any literary, artistic or scientific purpose or design of the activities or language. For example, matter that in one context might be considered to be obscene might be regarded differently if published for educational purposes for a group of medical students. 206

203

Crowe v Graham (1968) 121 CLR 375 at 379. See also Dalton v Bartlett (1972) 3 SASR 549 at 557 and Robertson v Samuels (1973) 4 SASR 465 at 473 where in both cases Hogarth J suggested that what might be acceptable in an army camp is not necessarily appropriate to be published in a public place.

204 205

Bills v Brown [1974] Tas SR 117. Dalton v Bartlett [1972] 3 SASR 549; Robertson v Samuels [1973] 4 SASR 465; see also Attorney-General v Twelfth Night Theatre [1969] Qd R 319 (words “fuckin’ boong” not obscene when uttered in context in a stage play); Gul v Informant Senior Constable Creed [2010] VSC 185 (words “fucking bitch” held indecent when uttered in a Big W store). R v Close [1948] VLR 445 at 451, 456-457.

206

[9.560] 655

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Relevant standard “Average person” [9.570] It has been seen that the relevant standard is the standard of modesty of the “average man or woman in sexual matters” (per Barwick CJ) or “contemporary community standards” (per Windayer J). In Mackinlay v Wiley 207 dissenting judge, Wickham CJ, in a passage since often cited, described the average person in the following terms: He will not be a man given to thoughtless emotional reaction, but, on the other hand he will not be one given to pedantic analysis, and in the relevant respects will be neither conservative nor radical, intelligent nor stupid, naive nor cynical, prime nor libertine, imaginative nor dull, and in short whatever extremes may be mentioned he will be neither one side of the line nor the other but right on it … the person can be summed up by the word “moderate”. 208 However, how does a court know what those standards are? One answer would be for the court to take into account expert evidence such as properly constructed surveys of community attitudes and values. 209 The actual approach adopted is more subjective. Windeyer J in Crowe v Graham declared that the tribunal of fact (which in the case of obscenity will be a magistrate or judge) alone is the best judge of those standards and that evidence, whether expert or otherwise, is “neither needed nor permitted”. 210 In other words, the test depends upon the magistrate’s or judge’s “general instinctive sense of what is decent and indecent”. 211 This view has since been repeatedly endorsed. 212 The court will also not engage in an exercise of literary comparison, so it is irrelevant to lead evidence that a publication that is regarded as classic literature or of high repute might be considered to be more obscene or indecent than the publication in question. 213 An immediate danger that arises is that the magistrate or judge may be tempted to substitute his or her own views in relation to standards of decency for the community’s 207 208 209 210 211 212

213

Mackinlay v Wiley [1971] WAR 3 at 25. See also, for example, Attorney-General v Huber (1971) 2 SASR 142 at 168 per Bray CJ; Literature Board of Review v Kenmure Press Pty Ltd [1972] Qd R 346 at 364-365 per WB Campbell J. As suggested in the Canadian case R v Cameron [1966] 4 Can Crim Cas 273 at 302; see also R Fox, “Depravity, corruption and community standards” (1980) 7 Adel L Rev 66 at 72-73. Crowe v Graham (1969) 121 CLR 375 at 399. Crowe v Graham (1969) 121 CLR 375 at 404, borrowing from the judgment of Fullagar J in R v Close [1948] VLR 445 at 465. See, for example, Mackinlay v Wiley [1971] WAR 3 at 13; Literature Board of Review v Kenmure Press Pty Ltd [1972] Qd R 346; Popow v Samuels (1973) 4 SASR 594 at 621; Robertson v Samuels (1973) 4 SASR 465 at 472-473. For clear examples of the effect of the approach, see: R v Sharp (1964) 82 WN (Pt 1) (NSW) 129 at 132 (judge rejected evidence given by professors, men and women of letters, ministers of religion, university lecturers, artists, authors, educators, and psychiatrists as to the likely effect of the publication); Buckley v Wathen [1973] VR 511 at 515 (judge rejected evidence by school teachers in co-educational schools, a professor of education who was a world authority on child education, and two psychiatrists with extensive practice amongst adolescents and delinquents as to the likely effect of the publication); Vokalek v Commonwealth (2008) 101 SASR 588 (magistrate correctly ruled as inadmissible evidence of a forensic psychologist/criminologist and of a witness described as a “writer, teacher and dominatrix” that suggested that the community accepted DVDs of a similar nature to the DVDs in question). Crowe v Graham (1968) 121 CLR 375 at 396; Boyd v Angus & Robertson Ltd (1946) 63 WN (NSW) 189.

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standards of decency. 214 Some judges have tried to avoid this problem by making express reference to what they routinely see and hear on television, radio and films, newspapers and advertising. 215 Even still, opinions regarding the standards of an average person may differ and, perhaps covertly, be indicative of the intrusion of personal standards of the particular judge or magistrate. Example

Literature Board of Review v Kenmure Press Pty Ltd [9.580] Literature Board of Review v Kenmure Press Pty Ltd [1972] Qd R 346 The Literature Board of Review prohibited the distribution of Playgirl magazine in Queensland on the grounds that it was obscene and “objectionable”. The magazine contained photographs of naked or near-naked women in sexual poses, together with captions containing sexual connotations. A majority of the Full Court of the Supreme Court held that the court was to apply the standards of “ordinary decent-minded people”, not the “scrambled ideas of mindless morons or the extremely liberal views of the avant-garde”. The photographs and captions were an “over presentation” of the female body in a context which emphasised sexual matters per se: the emphasis was on sex for its own sake, and accordingly was obscene. By contrast, the dissenting judge (WB Campbell J) found that to hold the photographs and captions to be an affront to the sexual modesty of the average person would be to adopt a very old-fashioned approach. In evaluating contemporary standards in relation to exhibitions before the public of the female form, the court could not turn a blind eye to that which appeared constantly in the daily press, on advertising posters, on television and in live theatre. Judges must endeavour to prevent their personal views from intruding in the evaluation of prevailing community standards.

Relevant community [9.590] Another problem lies in who exactly is the “community” whose standards of decency have to be offended? This is a particularly significant question since it is doubtful whether there is a common set of values shared by all people. In Crowe v Graham, Windeyer J referred to contemporary standards as being “those currently accepted by the Australian community”. 216 Fox has suggested, though, that there may not even be a common set of Australian standards, citing known differences in the norms of social behaviour such as the drinking habits of the people of Darwin not corresponding with those in Hobart: drinking to the extent acceptable in the Northern Territory perhaps being regarded as worthy of condemnation 214 215 216

Romeyko v Samuels (1972) 2 SASR 529 at 563 per Bray CJ. See, for example, R v Sharp (1964) 82 WN (Pt 1) (NSW) 129 at 132; Literature Board of Review v Kenmure Press Pty Ltd [1972] Qd R 346 at 360 per WB Campbell J. Crowe v Graham (1968) 121 CLR 375 at 399.

[9.590] 657

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by the “average” citizen of Tasmania. He suggests that standards of decency may similarly differ, and that in any event since the courts are invariably interpreting State legislation they should look to State rather than national community standards. 217 While this may be a better view, it is not itself without difficulty. By the same argument it could be suggested that there may be differences in the norms of social behaviour, including standards of decency, within a State or Territory, such as differing norms in capital cities like Brisbane or Perth and in more remote communities such as those in Cape York or in the Kimberley region respectively. 218 For that matter, the norms of the Anglo-Saxon-Celtic descendant community does not necessarily accord with an Indigenous, Asian or other cultural background. There was, therefore, perhaps good reason behind the yardstick being recently restated in terms of being the “contemporary standards in a multicultural, partly secular and largely tolerant, if not permissive, society”. 219 A further complication is that standards undoubtedly differ as between age groups. One judge made reference to census figures to show that the average age of the population of South Australia was around 30, 220 a good deal younger than the age group at which judges and magistrates charged with applying community standards are usually appointed. 221 Such an observation reinforces the importance of judges and magistrates not substituting their own standards for those of the community. As Bray CJ once declared: “It is the common denominator of the whole community, the statistical average of which, as Zelling J has very pertinently said, is of or below the age of 30; not the common denominator of conventional persons in middle life or later.” 222 To this observation may be added that roughly half the population is female, so that “community standards” should not be male orientated, despite the large imbalance of males on Australian benches.

Targeted audiences [9.600] Another problem concerns situations in which the publication is made to a limited target audience. It has not yet been settled in Australia whether the standards to be applied 217

219 220

Fox (1969) 3 Adel L Rev 392 at 401; see also Mackay v Gordon & Gotch (Australasia) Ltd [1959] VR 420 at 425 where the court referred to differing standards “as between Victoria and a foreign country or as between Victoria and England”. In the United States, the diversity of communities of America led the Supreme Court to hold that “community standards” should be local rather than national. The people of Maine or Mississippi were not expected to accept the conduct found tolerable in places like Las Vegas or New York City: Miller v California 413 US 15 (1973). A danger that this approach creates, though, is that “national distributors choosing to send their products interstate will be forced to cope with the community standards of every hamlet in which their goods may wander”: Hamling v US 418 US 87 (1974) (per Brennan J dissenting). This threat is not just a moot one. For example, Harry Reemes, the male star of a widely known explicit movie Deep Throat was prosecuted for violating obscenity laws in Memphis, Tennessee. The movie had not been made there and it apparently had only been shown there twice before the theatre was raided by police. Reemes was caught travelling through town and criminally prosecuted, although the movie had been shown legally in hundreds of cities by then: W Overbeck, Major Principles of Media Law (1991), pp 300-301. Pell v Council of the Trustees of the National Gallery of Victoria [1998] 2 VR 391 at 395. Romeyko v Samuels (1972) 19 FLR 322 at 342 per Zelling J.

221 222

Fox (1969) 3 Adel L Rev 392 at 401. Romeyko v Samuels (1972) 2 SASR 529 at 563.

218

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are those of the whole community or instead those of the target audience. It seems the former view is the better established. 223 Example

Mackinlay v Wiley [9.610] Mackinlay v Wiley [1971] WAR 3 An issue of the Pelican, a publication of the Guild of Undergraduate Students of the University of Western Australia, purported to explore the issue of censorship in general and more specifically film censorship. The Pelican was distributed by inserting copies in a number of boxes positioned on campus, where they were available not only to students but also to others attached to the university and members of the public who might be on campus. It was also available off campus for a price of 10 cents. The editor of the Pelican was convicted of publishing an obscene paper due to the photographs and writing contained in the issue. The defendant argued that the paper was not obscene by the standards of university undergraduates. The Full Court of the Western Australian Supreme Court held that the Magistrate was correct in refusing to distinguish between university students and the wider community. Even if the standards of university undergraduates were to be applied, there was nothing in the educational background, standard of intelligence or nature of the work performed at university which suggested that undergraduate students, many of whom would be first year students fresh from school, would necessarily possess an emotional maturity or moral judgment to withstand the prejudicial effects of obscenity to any greater extent than other members of the community of the same age. In any event, the evidence showed that the circulation was not limited to university students. Copies were sold extra-murally and even on campus, people other than students had access to the publication. 224

[9.620] Nevertheless, as Windeyer J recognised, the intended audience for the publication is a relevant consideration to be taken into account as part of all of the relevant circumstances when deciding whether the publication offends the standards of the community. 225 If the publication is only made available to a limited class or group of persons, the conscience of the community as a whole may not be offended, not because of a double standard of decency but because the standards of the community as a whole may not be affronted by a limited publication. 226 It might occur that, despite the intention of a publisher that the publication only be available to a certain limited group of people, and despite the taking of reasonable care to 223

224

Crowe v Graham (1968) 121 CLR 375 at 399 per Windeyer J; Chance International Pty Ltd v Forbes [1968] 3 NSWR 487; Romeyko v Samuels (1972) 19 FLR 322 (SC); Director of Public Prosecutions v Whyte [1972] AC 849; Popow v Samuels (1973) 4 SASR 594 at 621; Vokalek v Commonwealth (2008) 101 SASR 588 at [66]-[67]. Cf R v Sharp (1964) 82 WN (NSW) 129.

225 226

Crowe v Graham (1968) 121 CLR 375 at 396. Chance International Pty Ltd v Forbes [1968] 3 NSWR 487 at 490.

[9.620] 659

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ensure that it is published only to those people, it falls into the hands of a wider audience, perhaps due to a reasonable mistake on the part of the publisher in distribution or a subsequent republication of the original by one of the intended audience. In such a case it seems that the leakage to the general public will make no difference and the publication will be treated as if made only for the restricted audience. The fact that the publication fell into the wrong hands, however, might throw doubt on the sincerity of the publisher’s purported intention to only publish to a limited audience, particularly if the misdirection was on a significant scale. 227

Pornography [9.630] The characterisation of obscenity laws as being for the protection of citizens against involuntary exposure to offensive material, 228 allied with taking reasonable precautions to ensure that the publication does not fall into the hands of persons outside of the target audience, are important factors in the pornography debate which was spurred by the worldwide proliferation, and consequent influx into Australia, of explicit pictorial erotica in the early 1970s. 229 Bray CJ observed that there was a view that there should be no interference with what adults choose to read or see in private and therefore no interference with material kept from juveniles and not obtruded onto those who do not want to see it, it being argued that contemporary standards of decency and modesty are not violated in such circumstances. 230 However, it may be argued cogently that pornography denigrates the humanity of women by portraying them as the sexual playthings of men and that, as a consequence, should be regarded as affronting the community’s minimum standards of decency. 231 This reasoning would exhort courts to take greater care to ensure that, in the words of one judge, the freedom of the individual does not turn into nothing more than a freedom to exploit others. 232 In America in the early 1980s Catharine MacKinnon and Andrea Dworkin argued that pornography was a practice of sex discrimination; that it presented women as dehumanised sexual objects who enjoyed humiliation or pain; that it caused specific harms to individual women such as sexual assaults and rapes; and that those who produced, sold, exhibited or distributed pornography should be made liable in law. 233 A Model Anti-pornography Civil Rights Ordinance that they promoted was even enacted in Indianapolis, but was later held to 227

Mackinlay v Wiley [1971] WAR 3 at 23 per Wickham J. See also the discussion of publications to limited audiences in Dickey (1975) 10 UWALR 228 at 232-240.

228

See JJ Bray, “Juristic basis of the law relating offences against public morality and decency” (1972) 46 ALJ 100.

229

This influx overtook literature as the principal concern of censoring authorities: see also Fox (1980) 7 Adel L Rev 66. Bray CJ in Popow v Samuels (1973) 4 SASR 594 at 607.

230 231

See, for example, S Rozanski, “Obscenity: Common law and the abuse of women” (1991) 13 Adel L Rev 163; N O’Neill and R Handley, Retreat from Injustice (1994), pp 267-270.

232 233

Walters J in Popow v Samuels (1973) 4 SASR 594 at 614. See, for example, C MacKinnon, “Pornography, civil rights and speech” (1985) 20 Harvard Civil Rights – Civil Liberties Law Review 1; C MacKinnon, “Pornography as defamation and discrimination” (1991) 71 Boston University Law Review 793.

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be constitutionally invalid as violating the First Amendment. 234 Their proposals also provoked strong responses from many leading feminists, writers and activists who found it difficult to reconcile the argument against pornography with freedom of speech. 235 Studies also tended, almost without exception, to show that there was no link between “soft” pornography and violence against women. 236 Indeed some research found that soft pornography actually reduced aggression levels among consumers. The combination of sex and violence, however, was another matter. 237

Classification scheme for publications, films and computer games The national classification scheme [9.640] The philosophy of protecting members of the community from exposure to unsolicited offensive material, and minors from material that may harm or disturb them, but otherwise permitting adults to read and view whatever they wished was carried into the national statutory scheme for the classification of publications, films and computer games. This scheme involves a Commonwealth statute under which the Classification Board determines the relevant classifications and complementary State legislation provides for enforcement of those decisions. 238 Computer games have been adjudged as requiring classification due to advances in technology and the more realistic depiction of violence and sexual matters in many games. Indeed, the fact that many computer games now use cinematic techniques strengthened the case for a uniform system that applied to both forms of media. For a long time a point of distinction was the absence of a restricted classification (R 18+) for computer games. Without such a classification computer games that would attract such a restricted classification had been either classified as MA 15+, despite having content which was not appropriate for that classification, or refused classification. In the case of the former there were concerns over the risk of persons, particularly children, being exposed to adult content that they may find offensive. In the case of the latter there had been disquiet from adult game players who had been denied the opportunity to play games freely available to gamers overseas. Introduction of an R 18+ classification required agreement between the Commonwealth, States and 234 235

236 237 238

B Gaze and M Jones, Law, Liberty and Australia Democracy (1990), pp 389-390; O’Neill and Handley (1994), pp 267-268. See, for example, V Burstyn (ed), Women Against Censorship (1985); N Strossen, “Convergence of feminist and civil liberties in the pornography debate” (1987) 62 New York University Law Review 201; L Segal and M McIntosh (eds), Sex Exposed (1992). See, for example, E Donnerstein and D Linz, “The question of pornography”, Psychology Today (December 1986), p 56. See, for example, “Sex and violence revisited” (1984) 34 Journal of Communication 101. See Classification (Publications, Films and Computer Games) Act 1995 (Cth); Classification (Publications, Films and Computer Games) (Enforcement Act) 1995 (ACT); Classification (Publications, Films and Computer Games) Enforcement Act 1995 (NSW); Classification of Publications, Films and Computer Games Act (NT); Classification (Publications, Films and Computer Games) Act 1995 (SA); Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (Vic).

[9.640] 661

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Territories to amend the national classification scheme and had been debated at the Standing Committee of Attorneys-General for almost 10 years. Agreement was finally reached and the category took effect from 1 January 2013. Accordingly films and computer games may be classified as: G: General – suitable for all ages; PG: Parental Guidance recommended for persons under 15; M: Mature – recommended for mature audiences 15 years and over; MA 15+: Mature Accompanied – restrictions apply to persons under 15 years; R 18+: Restricted – restricted to people 18 years and over; or Refused: refused classification. Nevertheless, there are separate guidelines which assist in the determination of the appropriate classifications for the two forms of media. For example, the “refused classification” category, (which reflects the demarcation between that which is regarded as acceptable and that which is regarded as obscene) for films is suited to those which contain (1) depictions of child sexual abuse, bestiality, sexual acts accompanied by offensive fetishes or exploitative incest fantasies; (2) unduly detailed and/or relished acts of extreme violence or cruelty, explicit or unjustifiable depictions of sexual violence against non-consenting persons; or (3) detailed instruction or encouragement in matters of crime or violence or the abuse of proscribed drugs. There is an additional X 18+ classification for video tapes containing explicit sexual depictions. An attempt to redesignate this classification as NVE: Non Violent Erotica to better reflect the intended nature of the content was rejected by the Senate in 2000. By contrast, the guidelines for classification of computer games provide that the “refused classification” is suited to those which include or contain: (1)

crime or violence: • detailed instruction or promotion in matters of crime or violence; • the promotion or provision of instruction in paedophile activity; descriptions or depictions of child sexual abuse or any other exploitative or offensive descriptions or depictions involving a person who is, or appears to be, a child under 18 years; • depictions of violence with a very high degree of impact which are excessively frequent, prolonged detailed or repetitive; cruelty or real violence which are very detailed or which have a high impact; or actual sexual violence; • implied sexual violence related to incentives and rewards.

(2)

sex: • depictions of actual sexual activity are not permitted; • depictions of simulated sexual activity that are explicit and realistic are not permitted; • depictions of practices such as bestiality; • gratuitous, exploitative or offensive depictions of activity accompanied by fetishes or practices which are offensive or abhorrent; or incest fantasies or other fantasies which are offensive or abhorrent.

(3)

drug use: • detailed instruction in the use of proscribed drugs; • material promoting or encouraging proscribed drug use.

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Computer games will also be refused classification if they contain illicit or proscribed drug use related to incentives or rewards; or interactive drug use which is detailed and realistic. The first computer game to be refused classification under the regime was Saints Row IV. This game, which involved humans fighting an alien species included violence, coarse language, sex and nudity that in each case could be accommodated at the MA 15+ level, but also included elements of illicit or proscribed drug use related to incentives or rewards. 239 In the case of books and magazines, the national scheme involves the Classification Board classifying material as: Unrestricted: may be freely displayed, advertised or sold to any person of any age; Category 1 Restricted or Category 2 Restricted: usually not displayed or sold except in special wrappings or sometimes in clearly marked and partitioned sections of shops; or, RC: refused classification: may be prosecuted as objectionable, or indecent or obscene. This category is suited to publications that (1) describe or depict sex, drug misuse, crime, cruelty, violence or revolting or abhorrent phenomena in such a way that it offends the standards of morality, decency and propriety generally accepted by reasonable adults; (2) describes or depicts a minor who is, or appears to be under 16 in a way likely to offend a reasonable adult; or (3) promotes, incites or instructs in matters of crime or violence. Example

Brown v Classification Review Board [9.650] Brown v Classification Review Board (1997) 145 ALR 464. Leave to appeal was refused by the High Court on 11 December 1998 An edition of the La Trobe University student journal Rabelais published an article entitled “The Art of Shoplifting”. The article mused on the desirability of redistributing wealth from the rich to the poor before being followed by the body of the article under the headings “preparing oneself for the big haul”, “on entering the maze”, “blind-spots and other lifting techniques”, “exchanging crap for more crap” and “leaving the store safely”. The concluding section offered advice “if you get caught,” including telephone numbers for legal advisers. In the Full Court of Federal Court the classification by the Chief Censor and Classification Review Board of the publication as “Refused Classification” was upheld. “Instructs in matters of crime” under the National Classification Code is determined objectively, and connoted both an imparting of knowledge, skills and techniques and some element of encouraging or exhorting crime. Writing that was satirical, ironic or a parody, may negate instruction by indicating it was not to be taken seriously. However, in light of the layout into sections and various words used, the court held that the Board had not erred in applying the Code. Further, the implied constitutional freedom of government or political communications 240 had not been offended, either because (per French J) while “political discussion” is wide, the National Classification Code and

239

A copy of the Review Board’s decision may be found at http://www.classification.gov.au/About/Pages/ReviewBoard-decisions-2013.aspx

240

See Chapter 2.

[9.650] 663

Australian Media Law Brown v Classification Review Board cont. Classification (Publications, Films and Computer Games) Act 1995 (Cth) was enacted for a legitimate purpose (including to prohibit the encouragement of crime) and was reasonably appropriate or adapted to achieve that purpose; or (per Heerey and Sundberg JJ) the article did not concern “political or government matters” because the advocacy of crime did not relate to the system of representative and responsible government or the exercise by people of a free and informed choice as electors.

[9.660] Tasmania and Western Australia opted to join the national classification scheme so far as it concerns films and computer games but retain their own classification powers in relation to publications, 241 while Queensland decided to join the national classification scheme in relation to films, 242 but retained the power to classify or reclassify Commonwealth-classified computer games 243 and publications itself. 244 Under the Commonwealth Act, subject to one exception 245 when making a decision on the classification of a particular publication, film or computer game, the Classification Board must take into account: • the standards of morality, decency and propriety generally accepted by reasonable adults; • the literary, artistic or educational merit (if any); • the general character, including whether it is of medical, legal or scientific character; and • the persons or class of persons to or amongst whom it is to be published. 246 Classification decisions are to give effect, as far as possible, to the following principles, which are set out in the National Classification Code 2005 (Cth): (a)

adults should be able to read, hear and see what they want;

(b)

minors should be protected from material likely to harm or disturb them;

(c)

everyone should be protected from exposure to unsolicited material that they find offensive;

(d)

the need to take account of community concerns about: (i) depictions that condone or incite violence, particularly sexual violence; and (ii)

the portrayal of persons in a demeaning manner.

The effect of the national classification scheme is that, at least for films, publications and computer games, there have been standards set by virtue of the refused classification categories of what is considered in contemporary Australian society to be obscene and therefore unacceptable for publication. 241 242 243 244 245 246

Classification (WA). Classification Classification Classification See [9.690]. Classification

664 [9.660]

(Publications, Films and Computer Games) Enforcement Act 1995 (Tas); Censorship Act 1996 of Films Act 1991 (Qld). of Computer Games and Images Act 1995 (Qld). of Publications Act 1991 (Qld). (Publications, Films and Computer Games) Act 1995 (Cth), s 11.

Chapter 9 – Offensive Publications

Offences [9.670] The State and Territory legislation contains various offences based on the classification of the publication, film or computer game. For example, in relation to films it is generally an offence to sell or publicly exhibit unclassified, RC or X 18+ films 247 (although the sale of X 18+ films is legal in the Territories subject to certain conditions), 248 to leave an RC or X 18+ film in a public place or, without the owner’s consent, a private place 249 and to possess or copy an RC or X 18+ film for the purpose of sale or exhibition. 250 Other prohibited conduct includes parents permitting minors to attend the public exhibition of an unclassified, RC, X 18+ or R 18+ film, privately exhibiting an unclassified, RC, X 18+ or R 18+ film to a minor, and publicly exhibiting an R 18+ film in the presence of minors or an MA film in the presence of minors under the age of 15.

Responses to classification [9.680] Apart from the various offences, the classification of a publication, film or computer game may have serious commercial implications. Depending on the classification, a product may have less of an audience and therefore a more limited capacity to attract income than the producer and/or distributor may desire. There are a number of options available in the event that a publication, film or computer game is given a more restrictive classification than hoped. The original applicant or the publisher may apply for a review of the classification by the Classification Review Board. 251 Alternatively, the offending material might be excised from the publication, film or computer game and a fresh application made. As the decision by the Classification Board is an administrative decision, it may be the subject of judicial review. Conversely, where the Minister or any aggrieved person is of the view that a publication, film 247

248

249

250

251

Classification (Publications, Films and Computer Games) (Enforcement Act) 1995 (ACT), ss 9, 16; Classification (Publications, Films and Computer Games) Enforcement Act 1995 (NSW), s 6; Classification of Publications, Films and Computer Games Act (NT), ss 37, 38, 45; Classification of Films Act 1991 (Qld), ss 37, 39; Classification (Publications, Films and Computer Games) Act 1995 (SA), ss 30, 38; Classification (Publications, Films and Computer Games) Enforcement Act 1995 (Tas), ss 22, 36; Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (Vic), ss 8, 15; Censorship Act 1996 (WA), ss 68, 69. Classification (Publications, Films and Computer Games) (Enforcement Act) 1995 (ACT), s 22; Classification of Publications, Films and Computer Games Act (NT), s 49. For example, an X 18+ film may only be sold in an opaque package to a person making a direct request for it. Classification (Publications, Films and Computer Games) (Enforcement Act) 1995 (ACT), s 26; Classification (Publications, Films and Computer Games) Enforcement Act 1995 (NSW), s 17; Classification of Publications, Films and Computer Games Act (NT), s 50B; Classification (Publications, Films and Computer Games) Act 1995 (SA), s 44; Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (Vic), s 22; Censorship Act 1996 (WA), s 80; cf Classification of Films Act 1991 (Qld), s 40. There does not appear to be an equivalent offence in Tasmania. Classification (Publications, Films and Computer Games) (Enforcement Act) 1995 (ACT), s 27 (RC films only); Classification (Publications, Films and Computer Games) Enforcement Act 1995 (NSW), s 18; Classification of Publications, Films and Computer Games Act (NT), s 53 (RC films only); Classification of Films Act 1991 (Qld), ss 41, 42; Classification (Publications, Films and Computer Games) Act 1995 (SA), s 45; Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (Vic), ss 23, 23A; Censorship Act 1996 (WA), s 81. There does not appear to be an equivalent offence in Tasmania. Classification (Publications, Films and Computer Games) Act 1995 (Cth), s 42.

[9.680] 665

Australian Media Law

or computer game has been given a less restrictive classification than it should have been, he or she may also apply for a review by the Review Board. 252 Otherwise the Classification Board may on its own initiative or on request of the Minister reclassify the publication, film or computer game after a period of two years. 253

Classification and terrorism [9.690] The classification scheme has emerged as being an avenue for protecting the security of the nation and its people against the threat of terrorism. Previously publications, films or computer games that were regarded as advocating terrorism could be classified as RC on the grounds that it could “instruct or encourage” or “promote, incite or instruct” in matters of crime or violence, specifically in breach of the Criminal Code 1995 (Cth), s 101.1 offence of “engaging in a terrorist act” and for that reason be refused classification. 254 As noted, that would mean that the public exhibition, sale, delivery or demonstration of the film, publication or computer game or possession for the purpose of exhibition, sale, delivery or demonstration would be illegal. In 2007, after referral by the then Federal Attorney-General Philip Ruddock, this resulted in two books being banned, Join the Caravan and In the Defence of the Muslim Lands. Both involved calls to arms to Muslims against the Soviet occupation of Afghanistan. However, several other items referred to the Classification Board were classified PG or unrestricted. Subsequently the then Federal government amended the Classification (Publications, Films and Computer Games) Act 1995 (Cth) by the Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Act 2007 (Cth). This introduced s 9A which provides that a publication, film or computer game that advocates the doing of a terrorist act must be classified RC. “Advocates” is given the same meaning by s 9A(2) as that in Criminal Code Act 1995 (Cth), s 102.1(1A), namely that the publication, film or computer game advocates the doing of a terrorist act if it: (a)

directly or indirectly counsels or urges the doing of a terrorist act;

(b)

directly or indirectly provides instructions on the doing of a terrorist act; or

(c)

directly praises the doing of a terrorist act in circumstances where there is a risk that such a praise might have the effect of leading a person (regardless of his or her age or any mental impairment (within the meaning of s 7.3 of the Criminal Code) that the person might suffer) to engage in a terrorist act.

The only exception provided by s 9A(3) is where the publication, film or computer game depicts or describes a terrorist act, but the depiction or description could reasonably be considered to be done merely as part of public discussion or debate or as entertainment or satire. 252

Classification (Publications, Films and Computer Games) Act 1995 (Cth), s 42.

253 254

Classification (Publications, Films and Computer Games) Act 1995 (Cth), s 39. See [10.240]. Cf Classification (Publications, Films and Computer Games) Enforcement Act 1995 (Tas), s 3 which expressly defines “objectionable material” to include that which promotes, incites or encourages terrorism.

666 [9.690]

Chapter 9 – Offensive Publications

The enactment of s 9A was done without the co-operation of the States and Territories, and indeed contrary to the express wishes of some. 255 It has been criticised for removing the essential discretion in censorship decisions from the independent Classification Board and Classification Review Board by pre-empting their decisions at a political level. 256

Classification of content on broadcast media [9.700] A system of industry self-regulation operates in relation to the broadcast media. Licensees of broadcasting stations are responsible for the censorship and classification of television programs, although they are required to comply with program standards and codes of practice developed with the aid of the Australian Communications and Media Authority (ACMA). For example, the ACMA has stipulated that television stations are unable to broadcast X-rated films. 257

Regulation of online content The content services regime [9.710] The ability to access content via the internet from sources both within and outside Australia poses challenges to the national classification scheme and its objective of providing adults with information about the nature of content to enable them to make an informed choice about the content to which they are exposed and to protect children from unsuitable material. The Australian government sought to respond to this challenge by extending the traditional national classification scheme to online content (whether stored or live streamed), as well as content delivered to mobile telephones, with adaptations appropriate to the technology. 258 The previous disparate approach has recently been replaced with a regulatory regime which seeks to amalgamate the previous regime, expand content regulation to internet services and services that link to other content and apply uniform standards across diverse content platforms. 259 The main legislative provisions governing regulation of online content are contained in the Broadcasting Services Act 1992 (Cth), Schs 5 and 7. Generally speaking, the content services regime prohibits granting access to certain content, establishes a complaints procedure that may result in notices to remove content or disable access and facilitates the development of industry codes of practice. Previously Sch 5 contained all provisions concerning stored content on the internet. Now Sch 7 applies to a content service where there is an Australian connection, that is where any 255 256 257 258 259

D Hume and G Williams, “Australian Censorship Policy and the Advocacy of Terrorism” (2009) 31(3) Sydney Law Review 381 at 395-396. Hume and Williams (2009) 31(3) Sydney Law Review 381. Broadcasting Services Act 1992 (Cth), Sch 2 cll 7, 9, 10. See generally [14.980]. Communications Legislation Amendment (Content Services) Act 2007 (Cth). D Lindsay, S Rodrick and M De Zwart, “Regulating Internet and Convergent Mobile Content: The New Content Services Regime” (2008) 58 Telecommunications Journal of Australia 31.1-31.29.

[9.710] 667

Australian Media Law

of the content provided by the content service is hosted in Australia or in the case of a live content service the service is provided from Australia. 260 Schedule 5 now applies only to internet content that is hosted outside Australia. Accordingly, live content that is streamed from outside Australia is unregulated. The different types of internet services covered by the content services regime are: • a “hosting service” whereby a content service is provided to the public (whether for a fee or otherwise) by a person who hosts stored content, other than content consisting of voicemail messages, video mail messages, email messages, SMS messages or MMS messages; 261 • a “live content service” whereby a content service is provided to the public (whether for a fee or otherwise) that provides live content; 262 • a “links service” whereby a content service is provided to the public (whether for a fee or otherwise) that provides one or more links to a content service that specialises in prohibited content or potential prohibited content; 263 and • a “commercial content service” whereby a content service is operated for profit and is provided to the public only on payment of a fee. 264

“Prohibited content” and “potential prohibited content” [9.720] The content services regime establishes a complaints system under which the ACMA must investigate complaints about “prohibited content” or “potential prohibited content” on the internet. Excluded from the definition are ordinary email, and information transmitted in the form of a broadcasting service (that is, some types of streamed audio and visual content). Internet content is “prohibited content” if it has been: (1)

classified RC (refused classification) or X 18+ by the Classification Board; 265

(2)

classified R 18+ and access to the content is not subject to a restricted access system;

(3)

classified MA 15+ by the Classification Board, access to the content is not subject to a restricted access system, the content does not consist of text and/or one or more still visual images, and the content is provided by a commercial service (other than a news service or a current affairs service);

260 261 262 263

Broadcasting Broadcasting Broadcasting Broadcasting

264 265

Broadcasting Services Act 1992 (Cth), Sch 7 cl 2. See [9.640].

668 [9.720]

Services Services Services Services

Act Act Act Act

1992 1992 1992 1992

(Cth), (Cth), (Cth), (Cth),

Sch Sch Sch Sch

7 7 7 7

cl 3. cl 4. cl 2. cll 2, 8.

Chapter 9 – Offensive Publications

(4)

classified MA 15+ by the Classification Board where access to the content is not subject to a restricted access system but is provided by means of a mobile premium service. 266

Material may fall into an RC, X 18+ or R 18+ classification as a result of its depiction of issues such as sex, nudity, violence, adult themes, drug use or language. Internet content is “potential prohibited content” if it has not been classified by the Classification Board, but if it were classified, is substantially likely to be prohibited content. 267

Complaints about internet content [9.730] A person may make a complaint if there is reason to believe that end-users in Australia can access prohibited content or potential prohibited content, including where it is believed that content can be accessed by Australian end-users using a link provided by a links service. 268 However, the person must be an individual who resides in Australia, a body corporate that carries on activities in Australia or the Commonwealth, a State or a Territory. 269 ACMA may, on its own initiative or in response to a complaint, investigate any of the following if it “thinks that it is desirable to do so”: • whether end-users in Australia can access prohibited content or potential prohibited content provided by content service; • whether a hosting service is hosting prohibited content or potential prohibited content; • whether end-users in Australia can access prohibited content or potential prohibited content using a link provided by a links service; • whether a person has breached a designated content/hosting service provider rule that applies to the person; • whether a person has committed an offence against Schedule 7 or breached a civil penalty provision of Schedule 7; and • whether a participant in the content industry has breached a relevant registered code that is applicable to that participant. 270

266

267 268

Broadcasting Services Act 1992 (Cth), Sch 5 cl 3, Sch 7 cl 20. The ACMA is empowered to declare that a specified access-control system is a “restricted access system” in relation to internet content for the purposes of Sch 5: see Sch 7 cl 14. An access-control system is a system under which persons seeking access to internet content have either been issued with a Personal Identification Number (PIN) that provides a means of limiting access by other persons to the internet content, or have been provided with some other means of limiting access by other persons to the internet content. The ACMA has declared that the restricted access system must be a PIN or a password: Australian Communications and Media Authority, Restricted Access Systems Declaration 1999 (No 1). Broadcasting Services Act 1992 (Cth), Sch 5 cl 3, Sch 7 cl 21. Broadcasting Services Act 1992 (Cth), Sch 7 cl 37.

269 270

Broadcasting Services Act 1992 (Cth), Sch 7 cl 41. Broadcasting Services Act 1992 (Cth), Sch 7 cl 44.

[9.730] 669

Australian Media Law

ACMA’s powers in relation to prohibited internet content hosted in Australia [9.740] ACMA has power to issue notices that require the removal of, or disabling of access to, prohibited content or potential prohibited content. A final notice may be issued in relation to prohibited content whereas an interim notice may be issued in relation to potential prohibited content which directs the service provider to take certain action pending classification of the content by the Classification Board. Where an interim notice has been issued ACMA must apply to the Classification Board to have the content classified. If the Classification Board classifies the material as prohibited content ACMA must issue a final notice. The form of notice depends upon the category of service provider. A hosting service provider may be given a take-down notice that requires it to cease hosting the content or to cease providing the content service to the public. 271 A live content service provider may be given a service-cessation notice requiring it to cease providing the service. 272 A links service provider may be given a link-deletion notice which requires it to cease providing a link to content or to cease providing the content service to the public. 273 Notices issued by ACMA will direct the service provider to take steps to ensure either a “type A remedial situation” or a “type B remedial situation” exists. A “type A remedial situation” is required where the content (other than an eligible electronic publication) is classified, or likely to be classified, as RC or X 18+. In such a case the content is to be removed or not able to be accessed by the public. A “type B remedial situation” is where the content (other than an eligible electronic publication) is classified, or likely to be classified, as R 18+ or MA 15+. In such cases the content is removed, is not able to be accessed by the public, or is subject to a restricted access system. 274 This system is supported by the power to issue special take-down, service-cessation and link-deletion notices that require the removal or disabling of access to material that is similar to the material subject of the complaint. 275 This power exists to deal with attempts to avoid the rules by simply removing the specific material identified in a notice and replacing it with similar material.

ACMA’s powers in relation to internet content hosted outside Australia [9.750] If the ACMA is satisfied that internet content hosted outside Australia is prohibited content or potential prohibited content, the ACMA must notify the content to the internet service provider (ISP) so that the provider can deal with the content in accordance with procedures specified in an industry code or standard. 276 If there is no code or standard dealing with these matters, the ACMA must give each known ISP a “standard access-prevention notice” directing the provider to take all reasonable steps to prevent 271 272 273 274

Broadcasting Broadcasting Broadcasting Broadcasting

275 276

Broadcasting Services Act 1992 (Cth), Sch 7 cll 52, 59A, 67. Broadcasting Services Act 1992 (Cth), Sch 5 cl 40(1)(b).

670 [9.740]

Services Services Services Services

Act Act Act Act

1992 1992 1992 1992

(Cth), (Cth), (Cth), (Cth),

Sch Sch Sch Sch

7 7 7 7

cl 47. cl 56. cl 62. cll 47, 56, 62.

Chapter 9 – Offensive Publications

end-users from accessing the content, having regard to the technical and commercial feasibility of taking such steps. 277 Provision is made for a standard access-prevention notice to be withdrawn if the material has been reclassified in such a way that it ceases to be prohibited. 278 An ISP is not required to comply with a standard access-prevention notice in relation to a particular end user if it has in place a “recognised alternative access-prevention arrangement” that provides a reasonably effective means of preventing access to prohibited content. 279 Such arrangements might include an arrangement that involves the use of regularly updated internet content filtering software or an arrangement that involves the use of a “family-friendly” filtered internet carriage service. Action in relation to prohibited content hosted outside Australia can be deferred to avoid prejudicing a criminal investigation. 280 If the ACMA considers that prohibited or potential prohibited internet content hosted outside Australia is of a sufficiently serious nature to warrant referral to a law enforcement agency (such as child pornography, which is illegal) it must notify the content to a member of an Australian police force or another person or body by arrangement with the police. 281

Protection for service providers, internet content hosts and internet service providers [9.760] Service providers are immune to civil proceedings in respect of anything done in compliance with a take-down, service-cessation or link deletion notice. 282 Similarly, an ISP cannot be sued for complying with a registered code of practice or standard; or for complying with a take-down notice. 283 A State or Territory law, or a rule of common law or equity, has no effect to the extent to which it would subject an internet content host (ICH) or an ISP to civil or criminal liability in respect of hosting or carrying particular internet content where the host or service provider was not aware of the nature of the content. 284 Such laws are also ineffective to the extent that they would require an ICH or an ISP to monitor, make inquiries about, or keep records of, the internet content they host or carry. The Minister can exempt a specified law of a State or Territory, or a specified rule of common law or equity, from this provision, or declare that a specified law of a State or Territory, or a specified rule of common law or equity, has no effect to the extent to which it affects an ICH or an ISP. An exemption or declaration can be disallowed by Parliament.

Internet industry codes of practice [9.770] Parliament intends that bodies and associations that represent both the content industry and ISP sections of the internet industry should develop codes of practice that are to 277 278

Broadcasting Services Act 1992 (Cth), Sch 5 cl 40(1)(c). Broadcasting Services Act 1992 (Cth), Sch 5 cl 42.

279 280 281 282

Broadcasting Broadcasting Broadcasting Broadcasting

283 284

Broadcasting Services Act 1992 (Cth), Sch 5 cl 88. Broadcasting Services Act 1992 (Cth), Sch 5 cl 91.

Services Services Services Services

Act Act Act Act

1992 1992 1992 1992

(Cth), (Cth), (Cth), (Cth),

Sch Sch Sch Sch

5 5 5 7

cl cl cl cl

40(4). 41. 40(1). 111.

[9.770] 671

Australian Media Law

apply to the internet activities of participants in their respective sections of the industry. 285 Content hosts are expected to develop codes that deal with: • the engagement of trained content assessors; • ensuring that unclassified content that is potential prohibited content (other than live content or an eligible electronic publication) is not provided by commercial content services, other than news or current affairs services, unless it has been assessed by a trained content assessor; • ensuring that live content is not provided by commercial content services, other than news or current affairs services, unless there is no reasonable likelihood that the content would be classified RC, X18+, R18+ or MA15+, or the content has been assessed by a trained content assessor; • ensuring that an unclassified eligible electronic publication that is substantially likely to be classified RC or category 2 restricted, is not provided by commercial content services, other than news or current affairs services, unless it has been assessed by a trained content assessor. 286 ISPs are expected to develop a code dealing with matters pertaining to protecting children from exposure to unsuitable content, complaints, filtering technologies and ensuring that, in the event that an industry member becomes aware that a content host is hosting prohibited content in Australia, the host is told about the prohibited content. 287 The internet service provider section of the internet industry is also expected to have an industry code which deals with a means of notifying ISPs about prohibited content, and procedures to be followed by ISPs to filter prohibited content hosted overseas. 288 If ACMA is satisfied that a body or association represents a particular section of the internet industry and that body or association develops an industry code of practice that applies to participants in that section of the industry and deals with one or more matters relating to the internet activities of those participants, and gives a copy of the code to ACMA, ACMA must register the code if it is satisfied of a number of matters. 289 They include: • that the code provides appropriate community safeguards in relation to matters of substantial relevance to the community; • that the code deals with matters that are not of substantial relevance to the community in an appropriate manner; • that the body or association invited members of the public and participants in that section of the industry to make submissions about the code when it was in draft form and gave consideration to any submissions that were received. The Internet Industry Association (IIA) is the body representing the internet industry. Codes dealing with hosting content within Australia, providing access to content hosted within 285 286 287

Broadcasting Services Act 1992 (Cth), Sch 7, cl 80 (content industry), Sch 5 cl 59 (ISPs). Broadcasting Services Act 1992 (Cth), Sch 7 cl 81. Broadcasting Services Act 1992 (Cth), Sch 5 cl 60(1).

288 289

Broadcasting Services Act 1992 (Cth), Sch 5 cl 60(2). Broadcasting Services Act 1992 (Cth), Sch 7, cl 85 (content industry), Sch 5 cl 62 (ISPs).

672 [9.770]

Chapter 9 – Offensive Publications

Australia and providing access to content hosted outside Australia were devised by the IIA in 2005 and registered by the ACMA. 290 In 2008 the IIA developed a new Code intended to fulfil the requirements for an industry code in Schedule 7. 291 This Code does not seek to cover matters addressed in Sch 5, which will still be the subject of the relevant 2005 Code. ACMA can direct a participant in a particular section of the internet industry who has contravened a registered code, to comply with the code. 292 Such a person may also be issued with a formal warning. 293 As is the case with broadcasters and datacasters, 294 ACMA has power to determine mandatory industry standards if there is no representative industry association or body, or if no codes are in existence, or if a registered code is not operating to provide appropriate community safeguards or is not adequately regulating participants in that section of the industry in relation to a matter. 295 ACMA must seek public consultation before determining an industry standard and must have due regard to any comments received. Industry standards can be varied or revoked by ACMA or disallowed by Parliament. ACMA may issue a formal warning to a participant in a particular section of the internet industry if the person contravenes an industry standard. 296

Internet filtering [9.780] Internet filtering involves mandating ISPs to implement technical means to filter out a prescribed list of websites. It takes place not only in countries such as China, where it is used to block access to websites considered undesirable by the ruling regime, but also in Western democracies including the United Kingdom, Canada, Germany and France. In countries such as Germany and France courts have ordered ISPs to block access to websites containing hate speech and the illegal peer-to-peer file sharing of materials covered by copyright. In the United Kingdom and Canada major ISPs responded to government pressure to voluntarily institute internet filtering to block inadvertent access to websites containing child pornography and child abuse materials. 297 When the Rudd Labor government was elected in 2007 one of its electoral promises was to make the internet safer, particularly for children. It proposed a national internet filter, which would involve mandating ISPs to implement technical means to filter out a prescribed list of websites. The main focus of the proposal was to reduce the risk of inadvertent exposure to RC material such as images of child abuse, bestiality, sexual violence, detailed instruction in 290

Internet Industry Codes of Practice: Codes for Industry Co-regulation in Areas of Internet and Mobile Content (May 2005).

291 292 293

Internet Industry Code of Practice: Content Services Code (June 2008). Broadcasting Services Act 1992 (Cth), Sch 7 cl 89, Sch 5 cl 66. Broadcasting Services Act 1992 (Cth), Sch 7 cl 90, Sch 5 cl 67.

294 295 296 297

See [14.1300]. Broadcasting Services Act 1992 (Cth), Sch 7 cll 91 – 94, Sch 5 cll 68 – 72. Broadcasting Services Act 1992 (Cth), Sch 7 cl 96, Sch 5 cl 73. A Maurushut and R Watt, “Australia’s Internet Filtering Proposal in the International Context” (2009) 12(2) Internet Law Bulletin 18 at 19-21.

[9.780] 673

Australian Media Law

crime, drug use and material advocating the doing of a terrorist act. However, little detail was provided concerning the criteria for evaluating websites that were to be blocked. In addition, once enacted any regulations passed on filtering were not required to undergo parliamentary debate. There was a real danger, therefore, of “scope creep” with a filter used to block sites other than those initially targeted. 298 Other criticisms included the costs associated with the scheme, the likely degradation of network speeds, the lack of transparency and accountability in determining blacklisted sites and risk of collateral damage in blocking not only the targeted offensive material but also inoffensive material, ease of circumvention of the filter, the failure of any URL-based blacklist filter to block file sharing, chat rooms, password-protected sites, encrypted images or other digital transmission or storage of prohibited content, and the false sense of security it could instil in parents. 299 In the face of opposition both in parliament and within the community the proposal for national internet filter was abandoned in favour of orders issued to ISPs to block websites listed on Interpol’s “worst of” database of child abuse pornography websites. 300

Reform of censorship and classification [9.790] In 2011 the Australian Law Reform Commission received terms of reference from the then Labor Federal Government to conduct an inquiry into censorship and classification in Australia, in the context of, among other things, the rapid pace of technological change in media available to, and consumed by, the Australian community; the need to improve classification information available to the community and enhance public understanding of the content that is regulated; the desirability of a strong content and distribution industry in Australia, and minimising the regulatory burden; the impact of media on children and the increased exposure of children to a wider variety of media; the size of the industries that generate potentially classified or content and potential for growth; and communications convergence. The Commission delivered its final report, Classification—Content Regulation and Convergent Media (ALRC Report 118) in February 2012. . The Commission made 57 recommendations for reform, which included recommendations that: • a new classification scheme be enacted and enforced by way of a Commonwealth statute, the Classification of Media Content Act, which would replace the current cooperative scheme of Commonwealth and State/Territory legislation; • the new scheme should be “platform neutral” and incorporate all classification obligations applying to media content including publications, films and computer games, online and mobile content currently subject to the regulatory regime under Schs 5 and 7 of the Broadcasting Services Act 1992, and broadcast and subscription television content; 298

A Maurushut and R Watt, “Australia’s Internet Filtering Proposal in the International Context” (2009) 12(2) Internet Law Bulletin 18 at 18.

299

Maurushut and Watt (2009) 12(2) Internet Law Bulletin 18 at 21-23; Langos (2010) 13(7/8) Internet Law Bulletin 137 at 140. See S Cullen, “Government abandons plans for internet filter” ABC News 9 November 2012 http://www.abc.net.au/news/2012-11-09/government-abandons-plans-for-internet-filter/4362354.

300

674 [9.790]

Chapter 9 – Offensive Publications

• platform neutral laws should be applied to determine what media content must be restricted to adults and what media content is prohibited, since traditional distinctions based on how content is accessed or delivered are becoming less relevant; • responsibility for regulation of media content should reside in a single agency, “the Regulator”, which should determine what content must be classified by the independent Classification Board; • one set of classification categories should apply to all classified media content, namely: G, PG, M, MA15+, R18+, X18+ and Prohibited, and classification decisions for content other than that rated G should also be assigned consumer advice about the content; • due to the large volume of media content now being generated, the role of the Classification Board should be more directly focused on content of higher community concern, such as films and computer games that attract ratings of MA15+ or higher, with greater industry-based classification and regulation for other content, subject to the industry classification codes being approved by the Regulator and the Regulator being able to conduct audits of industry classification decisions; and • the Regulator should have power to determine that certain films, television programs and computer games with a classification made under an authorised classification system overseas are deemed to have an equivalent Australian classification. The Commission also recommended that the “Prohibited” classification be more narrowly framed than the current “refused classification” category and that, in particular, the Australian Government should review the current prohibition in relation to “the depiction of sexual fetishes” in films and “detailed instruction in the use of proscribed drugs”, as well as considering whether the prohibition on content that “promotes, incites or instructs in matters of crime” should be confined to “serious crime”. This recommendation might be regarded as reflecting the Commission’s view, informed by the submissions and other evidence presented to it for the purposes of this inquiry, that community standards regarding what may be regarded as obscene have changed with the passage of time since the design of the current “refused classification” category. In March 2014 the Abbott Coalition government announced “first tranche” reforms in response to the Report, which would enact five of the Commission’s recommendations dealing with comparitively minor matters, such as broadening the scope of the existing exempt film categories and streamlining exemption arrangements for festivals and cultural institutions; enabling certain content to be classified using classification tools such as online questionnaires; creating an explicit requirement to display classification markings on all classified content; and enabling the Attorney General’s Department to notify law enforcement authorities of potential refused classification content without having the content classified first, in order to help expedite the removal of extremely offensive or illegal content from distribution. 301 At the time of writing there was no indication of the government’s attitude to the balance of the recommendations. 301

Classification (Publications, Films and Computer Games) Amendment (Classification Tools and Other Measures) Bill 2014; see Australian Law Reform Commission http://www.alrc.gov.au/inquiries/classification/ implementation.

[9.790] 675

Australian Media Law

Defences [9.800] it is no defence to a charge of obscenity in its various guises to argue that the publisher was motivated by worthy objectives or that other similar works have been published without being challenged as obscene. By contrast, it will be an exculpating factor if the allegedly obscene publication was sought out by those with advance notice of its nature. 302 It is also a good defence if the accused can show that he or she acted under an honest and reasonable mistake as to the existence of facts which, if true, would have made his or her act innocent. 303 Example

R v Wampfler [9.810] R v Wampfler (1987) 11 NSWLR 541 The defendant operated a video laboratory equipped for large scale production of multiple copies of video cassettes from master tapes. His premises were raided by police and he was subsequently charged with publishing an indecent article, namely a video cassette entitled That’s Erotic. At trial the accused was prevented from leading evidence to establish his belief that the cassette had been approved by the Commonwealth Film Censorship Board and given an X rating so as to preclude there being any offence in his dealing with it as he did. The New South Wales Court of Criminal Appeal held that the offence of publishing an indecent article under the Indecent Articles and Classified Publications Act 1975 (NSW) did not create absolute liability. The defendant therefore should have been permitted to lead evidence of an honest belief on reasonable grounds.

[9.820] The defence will not be available, however, where the accused knows of the contents of the publication but mistakenly believes them to not be obscene, that is where the accused acted under a mistake of law not fact. 304 While the inherent literary, artistic or scientific quality of the publication is not a defence as such, it is a factor to be taken into account when deciding whether the publication is obscene according to contemporary standards. 305

302

303

See Keft v Fraser (unreported, WA Supreme Court (Full Court), 21 April 1985) (comedian Rodney Rude held not guilty of using indecent of obscene language in a public place under the Police Act 1892 (WA) despite repeated use of the word “fuck” as his audience was a paying audience who would have known what they were paying for). R v Wampfler (1987) 11 NSWLR 541 (CCA); Crossman v Fennemore (1986) 43 SASR 287.

304 305

Sancoft v Holford [1973] Qd R 25. R v Close [1948] VLR 445.

676 [9.800]

Media and National Security

10

[10.10] INTRODUCTION .................................................................................... 677 [10.20] OFFICIAL SECRETS ................................................................................. 678 [10.20] Offences .................................................................................................. 678 [10.30] D notices ................................................................................................. 679 [10.40] SEDITION AND PUBLICATIONS URGING FORCE OR VIOLENCE ...... 681 [10.40] Origins of sedition ................................................................................. 681 [10.60] Sedition in Australia ............................................................................... 682 [10.60] [10.70]

The original statutory regime ............................................ Reshaping sedition ............................................................ [10.80] Urging force or violence ....................................................................... [10.80] Offences ............................................................................ [10.90] Defences ...........................................................................

682 684 685 685 686

[10.100] JOURNALISTS’ SOURCES .................................................................... 687 [10.110] Associating with terrorists ................................................................... 687 [10.120] Documents connected with terrorism .............................................. 688 [10.120] [10.150]

[10.160] [10.190]

Collection or making documents ....................................... 688 Power to obtain documents relating to terrorism .............. 690 Detention of persons ........................................................................... 691 [10.170] Preventative detention orders for terrorists ........................ 691 [10.180] Detention and questioning of journalists ........................... 692 Providing support for terrorists .......................................................... 695 [10.200] Financing terrorists ............................................................ 695 [10.210] Recruiting terrorists ........................................................... 695 Disclosing sensitive information ......................................................... 697 Entering or remaining in declared areas ........................................... 698

[10.220] [10.230] [10.240] OTHERRESTRICTIONSONFREESPEECHRELATEDTOTERRORISM .... 698 [10.240] Classification schemes ......................................................................... 698 [10.300] Broadcasting standards ....................................................................... 702

Introduction [10.10] Following the terrorist attacks in the United States on 11 September 2001 there have been a number of world events that have heightened concerns about the risk of terrorist attack in Australia. These have included terrorist attacks in Bali on 12 October 2002, London on 7 July 2005 and Mumbai on 11 July 2006 and 26 November 2008, as well as the Australian involvement in wars and other conflicts in Afghanistan and the Iraq and Australian individuals travelling overseas to participate in armed conflicts in the Middle East. Naturally this risk raises issues relating to the best way in which to safeguard national security in this country against threats from both foreign and “home grown” terrorists. Such safeguards may have the collateral effect of restricting freedoms previously enjoyed, including freedom of speech and [10.10] 677

Australian Media Law

freedom of association. In certain circumstances this may have serious implications for the media in general, as well as individual journalists, editors or executive producers seeking to report on matters in the public interest. This chapter addresses the restrictions imposed by the government in the name of protecting the security of the nation and safety of its people. Some of these restrictions, such as those relating to official secrets and seditious publications, have been in place for some time and have been addressed in past editions of this book as aspects of other areas of law affecting the media and its exercise of free speech. Some others are of recent design, in particular those enacted as part of a raft of anti-terrorism legislation enacted by the Howard government in 2004 and 2005 and a second wave of legislation enacted by the Abbott government in 2014. 1 The new world in which we live makes it appropriate to group these restrictions together in a separate chapter. The effectiveness of these restrictions must now be considered in the context of a “globalised news culture that is always on, constantly updated and refreshed, its content communicated around the world in circumstances where official censorship becomes more and more difficult to implement”. 2 This was amply demonstrated by the WikiLeaks disclosures from 2010, in which classified documents concerning the operations of, and relations between, several governments, including over 400,000 documents concerning operations during the Iraq War, were leaked and published unredacted by the WikiLeaks organisation on its website and shared with major media organisations.

Official secrets Offences [10.20] Certain legislative provisions prohibit the disclosure and publication of particular information or material, referred to as official secrets, which could prejudice national security or defence. These provisions are contained in s 79 of the Crimes Act 1914 (Cth) and s 91.1 of the Criminal Code 1995 (Cth). Most of these provisions target persons who disclose information to unauthorised persons with the intention of prejudicing the Commonwealth’s security or defence, or of giving an advantage to another country’s security or defence. These persons are usually in possession of secret information by virtue of their employment as Commonwealth officers. In certain circumstances it is also an offence for a person to receive this information, and it is this provision that is of relevance to journalists. An offence is committed by the recipient of such information if the recipient knew or had reasonable grounds to believe that the material or information was communicated to him or her in contravention of these provisions of the Crimes Act 1914 (Cth) and the Criminal Code 1995 (Cth), unless the person can prove that the communication was contrary to his or her desire. Although these 1

2

An interesting discussion of the 54 pieces of legislation enacted in the first 10 years following the September 11, 2001 attacks is provided in G Williams, “A Decade of Australian Anti-Terror Laws” (2011) 35(3) Melbourne University Law Review 1136. B McNair, “WikiLeaks, journalism and the consequences of chaos” (2012) 144 Media International Australia, Incorporating Culture & Policy 77 at 77.

678 [10.20]

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official secrets provisions aim to punish persons who communicate or receive official secrets, prosecutions are rare. 3 Also, the High Court has held that because the official secrets provisions are criminal in nature, an injunction will not be readily granted to restrain an actual or threatened breach. 4 The publication of an official secret may, however, be enjoined on the basis that publication would constitute a breach of confidence or would infringe copyright. 5 There is a prohibition on publishing matter which might identify a person as an Australian Security Intelligence Organisation (ASIO) officer, employee or agent without the consent of the relevant Minister or the Director-General of Security. 6 The prohibition does not apply to the Director-General, or to former ASIO officers, employees and agents who have consented in writing to being identified. A similar restriction is imposed on identifying Australian Secret Intelligence Service (ASIS) agents or staff members. 7 These provisions do not restrict the broadcasting, datacasting or reporting of parliamentary proceedings, other than those of the Parliamentary Joint Committee on ASIO, ASIS and the Defence Signals Directorate (DSD).

D notices [10.30] An additional restriction on media publication of matters concerning defence and national security, at least in theory, is known as the “D notice”. The D notice system began to operate in Australia in 1952. 8 It was modelled on the United Kingdom system which had been in existence since 1911. 9 It is administered by the federal Defence, Press and Broadcasting Committee which was established by the Menzies Government. The Committee is chaired by the Minister for Defence and is made up of representatives of the government and the larger media organisations, both print and electronic. The purpose of the Committee is to receive and consider requests from government departments concerning material pertaining to defence, espionage and national security which the Department considers should not be published. If the Committee decides that the material should be covered by a D notice, the notice is communicated to the media by the Committee, and the media are requested not to publish the information the subject of the notice. 10 The essence of the system is that media organisations voluntarily agree to not publish sensitive material which is contained in D notices. Since

3

P Sadler, Balancing the Public Interest: The D-Notice System and the Suppression of Sensitive Government Information Relating to National Security (PhD Thesis, Murdoch University, 1999), pp 174-175.

4

Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39. For a list of reasons why injunctions to restrain breaches of the criminal law are rare see: Peek v New South Wales Egg Corporation (1986) 6 NSWLR 1. See also Sadler (PhD Thesis, Murdoch University1999), Ch 7.

5 6 7 8

Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39. See also Sadler (PhD Thesis, Murdoch University, 1999), Ch 8. Australian Security Intelligence Organisation Act 1979 (Cth), s 92. Intelligence Services Act 2001 (Cth), s 41. Although the D notice system began in 1952, its existence was not disclosed to the public until 1967: E Campbell and W Whitmore, Freedom in Australia (2nd ed, 1973), p 332. For a comprehensive review of the operation of the D notice system in Australia, see Sadler (PhD Thesis, Murdoch University, 1999), Ch 5.

9 10

In 1993 in the United Kingdom it became known as the “DA-Notice System”. Defence, Press and Broadcasting Committee, Australian D-Notices (1983), p 1.

[10.30] 679

Australian Media Law

observance of the D notice system is voluntary, non-compliance carries no penalties. 11 The Committee last met in 1982, at which time the D notices were revised down to four. 12 Since 1982, the Committee has gradually become inoperative through disuse, and, except where restricted by law, media organisations now simply make unilateral decisions about what they publish concerning matters of national security. 13 In 1995, the D notice system was the subject of considerable public discussion. In May 1995, the Federal Government sought to prevent the ABC from publishing information concerning the alleged bugging of the Chinese embassy in Canberra by the Australian and United States governments. 14 A furore erupted over the conduct of the ABC, and culminated in an announcement by the government that it would reinvigorate the D notice system, and supplement it with the introduction of hefty criminal sanctions against both primary and secondary disclosure of the kind of information covered by D notices. The proposed legislation would have meant that journalists, editors and executive producers who published leaked information on security or intelligence matters could be prosecuted and imprisoned or fined even if they were not a party to the primary disclosure. It was also announced that the proposed legislation would not contain a defence of public interest. Not surprisingly, the government’s proposals were met with resistance from the media. It was alleged that the proposed legislation would chill legitimate debate about security operations and would offend against the implied right to free political communication which had been recognised by the High Court in 1992. The proposals were also contrary to the Samuels inquiry into the Australian Secret Intelligence Service conducted in 1994, which recommended that the voluntary D notice system be renewed, retained and revamped. 15 Media resistance and a change of government ensured that the legislation never eventuated. Nor has the D notice system been revived. 16 Nevertheless, it remains at least an option which a government of the day may deem appropriate to reintroduce in the particular circumstances that it confronts.

11

13

Commonwealth Parliament, House of Representatives, Parliamentary Debates (8 and 9 November 1967), col 2865; Defence, Press and Broadcasting Committee, Australian D-Notices (1983), p 1; S Walker, The Law of Journalism in Australia (1989), p 132. They were (1) the capabilities of the Australian defence force (including aircraft, ships, weapons and other equipment) (2) the whereabouts of Mr and Mrs Vladimir Petrov, who had defected from the Soviet Union (3) signal intelligence and communications security (which concerns the monitoring by Australia of the communications of foreign countries) and (4) the identification of the employees and activities of the Australian Secret Intelligence Service (Australia’s overseas spy agency): Defence, Press and Broadcasting Committee, Australian D-Notices (1983). Sadler (PhD Thesis, Murdoch University, 1999), pp 125, 132.

14

See P Chadwick, “Pressure to replace D-notices” (1995) Communications Update 6.

15

Commission of Inquiry into the Australian Secret Intelligence Service, Report on the Australian Secret Intelligence Service (1995), [11.18]-[11.20]. For a discussion of attempts to reinvigorate the D-Notice system, see Sadler (PhD Thesis, Murdoch University, 1999), pp 122-124.

12

16

680 [10.30]

Chapter 10 – Media and National Security

Sedition and publications urging force or violence Origins of “sedition” [10.40] “Seditious libel” is one of the four common law libels. 17 The common law misdemeanour of “sedition” involves an enterprise or words intended to bring the Sovereign, the Government or the Constitution into hatred or contempt, or to excite disaffection against it, with an intention to incite violence or to create public disturbance or disorder. 18 In this context, Latham CJ described “exciting disaffection” as referring to the implanting, arousing or stimulating in the minds of people a feeling, view or opinion that the Sovereign Government should not be supported as the Sovereign Government, that it should be opposed or (in time of war) be destroyed. Such advocacy is the encouragement of an incitement to active disloyalty. 19 To a similar effect, Dixon J defined disaffection as an estrangement upon the part of the subject in his or her allegiance, which has not necessarily gone as far as an overt act of a treasonable nature or an overt breach of duty. According to Dixon J, it supposes that the loyalty and attachment to authority, upon which obedience may be considered to depend, is replaced by an antagonism, enmity and disloyalty tending to make government insecure. 20 Sedition is closely associated with the offence of treason. Indeed it has been said that sedition “frequently precedes treason by a short interval.” 21 In England the offence of sedition was used extensively and ruthlessly by the Tudor monarchs, who were sensitive to criticism of their governments (and therefore a particular problem for the press due to the power of the published word as a political weapon) and may be traced to the infamous Court of the Star Chamber. It was also used during periods of political turmoil in England, most notably the periods 1680–1710, 1792–1845 and 1914–1919. 22 In the United States, despite the First Amendment guarantee of freedom of speech, there is also a long history of sedition laws being enforced, including the early Sedition Act 1798 and, in the McCarthy era of anti-communist paranoia, the Subversive Activities Control Act 1950, which declared communism and communist activities to be “un-American”. Anti-sedition laws were also passed by State legislatures in order to protect the community against anarchy. Test cases concerning the constitutionality of these laws led the United States Supreme Court to develop the “clear and present danger” test. This test struck the balance between an individual’s freedom of speech and the interests of the state in

17 18 19 20 21 22

The others are criminal libel (or as it is now known “criminal defamation”) (see [3.1470]), obscene libel (see [9.530]) and blasphemous libel (see [9.370]). Boucher v The King [1951] 2 DLR 369 (Canadian Supreme Court). Burns v Ransley (1949) 79 CLR 101 at 109. Burns v Ransley (1949) 79 CLR 101 at 115. R v Sullivan (1868) 11 Cox CC 44 at 45 per Fitzgerald J. See B Gaze and M Jones, Law, Liberty and Australia Democracy (1990), p 176; N O’Neill and R Handley (1994), p 256.

[10.40] 681

Australian Media Law

protecting the community at the point of only permitting laws which proscribed agitation and exhortation for present violent action that created a clear and present danger of public disorder. 23 At common law proof of an intention to promote ill-will and hostility between different classes of subjects does not alone establish a seditious intention. Not only must there be proof of an incitement to violence in this connection, it must be violence, resistance or defiance for the purpose of disturbing constituted authority, that is some person or body holding public office or discharging some public function of the state. 24 Example

R v Chief Metropolitan Stipendiary Magistrate; Ex parte Choudhury [10.50] R v Chief Metropolitan Stipendiary Magistrate; Ex parte Choudhury [1991] 1 QB 429 A member of the public laid information and sought summonses against the author and publishers of the book The Satanic Verses for sedition, alleging that the book created discontent among Her Majesty’s subjects, created hostility between Muslim and non-Muslim British citizens, damaged relations between the British government and the governments of Islamic states and generated hostility between believers in Islam around the world. The magistrate refused to issue the summonses. The English Court of Appeal held that sedition involves the incitement of violence or creation of public disturbance or disorder against Her or His Majesty or the institutions of government. Here there was no incitement for the purpose of disturbing the country’s constituted authorities and as such, the alleged effects of the book did not amount to sedition.

Sedition in Australia The original statutory regime [10.60] The Australian States inherited the common law of sedition from Britain. Notable prosecutions included those of John Macarthur, founder of the Australian Marino wool industry, 23

24

The “clear and present danger” test seems to have been first cited by Justice Oliver Wendell Holmes in Schenck v United States 249 US 47 (1919) (US SC), a case interpreting the federal Espionage Act 1918, and was utilised in subsequent constitutional cases interpreting the First Amendment. Later modifications included Brandenburg v Ohio 395 US 444 (1969) where the court held that the First Amendment even protected speech that was a call for action except where the speech was directed to inciting or producing imminent lawless action and was likely to incite or produce such action (reversal of conviction of Ku Klux Klansman for violating an Ohio criminal syndicalism law for speaking against African Americans and Jews at a rally which was filmed because the exhortation was not persuasive or effective enough as to be likely to produce imminent results): see W Overbeck, Major Principles of Media Law (1991), pp 41-55. Boucher v The King [1951] 2 DLR 369; R v Chief Metropolitan Stipendiary Magistrate; Ex parte Choudhury [1991] 1 QB 429 at 453.

682 [10.50]

Chapter 10 – Media and National Security

for seditious behaviour against Governor William Bligh in 1807-1808; Henry Seekamp, the editor and owner of the Ballarat Times newspaper at the time of the Eureka stockade in 1854; and anti-conscriptionists who opposed Australia’s involvement in the First World War. 25 In Australia in 1920, the Commonwealth purported to incorporate the common law into the Crimes Act 1914 (Cth) as ss 24A – 24F. 26 However, until amended in 1986, these provisions omitted the element of incitement to violence or public disorder or disturbance which is an essential element of the common law offence. 27 In the next 80 years there were only three successful prosecutions for sedition in Australia that reached the High Court, two 1949 cases under the Federal law and one under a State enactment, the Queensland Criminal Code, s 52 (as it was), which applied as adopted law in Australia’s then Territory of Papua New Guinea in 1961. This was in an era that was at the height of the Cold War and communist expansion in Europe, when there were grave fears about communists infiltrating the workers’ movement in Australia. Against this background, and without the statute requiring an incitement to violence or public disorder or a public disturbance, judges in the High Court in the two actions brought under the Crimes Act 1914 (Cth) were prepared to interpret “seditious intention” loosely so as to include cases where words were uttered by Communists in response to questions about hypothetical events but where there was no real intention to effect a seditious purpose. 28 In the 1961 Queensland case, the defendant was convicted of sedition despite addressing only a small group of indigenous people in remote highlands accessible only by small aircraft and pointing out that while they could secure self government by stealing arms, expelling all white people and calling on Russian or Chinese communists for help, that was illegal and that forming pressure groups was more advisable. 29 Divorced from their historical context such decisions might today seem curious. Queensland, Western Australia, Tasmania and the Northern Territory all enacted similar laws against sedition as part of their Criminal Codes. 30 In the other jurisdictions the common law of sedition still applies.

25 26

27

28

29 30

Australian Law Reform Commission, Fighting Words: A Review of Sedition Laws in Australia (ALRC 104), [2.21], http://www.alrc.gov.au/sites/default/files/pdfs/publications/ALRC104.pdf. The Crimes Act 1914 (Cth) also made it an offence to engage in treason (s 24), treachery (s 24AA), sabotage (s 24AB), and mutiny (s 25), which could have conceivably extended to the media by virtue of s 7A which made it an offence to print or publish anything which “incites to, urges, aids or encourages” the commission of any offence under the Act. Intelligence Security (Consequential Amendments) Act 1986 (Cth), ss 1 – 14, which gave effect to recommendations made by Justice Hope in his Royal Commission on Australia’s Security and Intelligence Agencies: Report on ASIO (1984). The Royal Commissioner pointed out (at [4.101]) that without the element of an intention to cause violence or create public disorder or disturbance the offence of writing, printing, or uttering seditious words could catch within its ambit mere rhetoric or statements of political belief, which he did not believe ought to be criminal, no matter how obnoxious. Burns v Ransley (1949) 79 CLR 101 (in response to hypothetical question in a public meeting, member of Communist Party said members would fight for Soviet Russia in any war); R v Sharkey (1949) 79 CLR 121 (in response to hypothetical question from a reporter, General Secretary of the Communist Party said any Soviet forces invading Australia would be welcomed). Cooper v The Queen (1961) 105 CLR 177. Seditious intention is defined more broadly under the Criminal Codes to include acts directed against State and United Kingdom bodies: Criminal Code 1899 (Qld), s 44; Criminal Code 1924 (Tas), s 66(1); Criminal

[10.60] 683

Australian Media Law

Reshaping sedition [10.70] Amendments to the Commonwealth sedition laws were enacted through Sch 7 of the Anti-Terrorism Act (No 2) 2005 (Cth). The sedition offences in the Crimes Act 1914 (Cth) were repealed and replaced by s 80.2 in the Criminal Code 1995 (Cth). 31 This originally introduced five new sedition offences, which covered not only traditional notions of inciting the overthrow of the government or government institutions but also the urging of force or violence in number of prescribed contexts, including the urging of inter-group violence. The drafting of the new offences drew on the recommendations of the 1991 Gibbs Committee review of Commonwealth criminal law, which had expressed the view that the provisions in the Crimes Act 1914 (Cth) were expressed in archaic language and required modernisation and simplification. 32 However, s 80.2 attracted criticism over the scope of the provisions and the potential for unintended consequences. 33 In addition, it was argued that sedition centres on subversion of political authority rather than efforts to inhibit inter-group violence. The rationale for protecting one group from violence by another is to guarantee the dignity of the members of the group. For that reason it was suggested that the appropriate place for an offence against the urging of inter-group violence was not within sedition but rather within the framework of anti-discrimination legislation. 34 The Australian Law Reform Commission observed that the history of sedition prosecutions indicated that sedition was a quintessentially political crime used to criminalise expression that was critical of the established order. That helped to fuel concerns that there was a potential for the law to over-reach, thereby impeding freedom of expression and free association. 35 The Commission was critical of the retention of the term “sedition”, which it saw as an inaccurate description of the principal offences in s 80.2 that proscribed the urging of force or violence. It therefore recommended abandoning the term, as well as refinements to ensure that there was

31 32 33

34 35

Code 1913 (WA), s 44; Criminal Code (NT), s 44. In Queensland and Western Australia the publication of seditious words is an offence if it takes place “advisedly”: Criminal Code 1899 (Qld), s 52; Criminal Code 1913 (WA), s 52. This has been interpreted as requiring only that there was an intention to publish the material: Cooper v The Queen (1961) 105 CLR 177. The Tasmanian requirement that the person acted “knowingly” would most probably be held to have the same effect: Criminal Code 1924 (Tas), s 67(1)(b). In Tasmania it is an offence to publish a libel on a foreign power: Criminal Code 1924 (Tas),: s 68. There have been few cases of State sedition prosecutions: see, for example, R v Paterson (unreported, Qld Supreme Court, 15 April 1930) (acquittal); R v Bossone (unreported, Qld Supreme Court, 18 September 1930) (conviction); R v Munro [1912] QWN 21, cited in L Maher, “The use and abuse of sedition” (1992) 14 Syd LR 287 at 287-288. Section 80.1 provides for the new offence of treason. H Gibbs, R Watson and A Menzies, Review of Commonwealth Criminal Law: Fifth Interim Report (1991), [32.13]. See, for example, D Meagher, “Inciting racial violence as sedition: A problem of definition?” (2006) 30 Crim LJ 289 at 293. Flaws in the original legislation were not surprising due to the haste with which it was enacted: G Williams, “A Decade of Australian Anti-Terror Laws” (2011) 35(3) MULR 1136 at 1166. ALRC Report 104, [10.47]. ALRC Report 104, [2.53].

684 [10.70]

Chapter 10 – Media and National Security

a bright line between freedom of expression, even when exercised in a challenging or unpopular manner, and the reach of the criminal law, which it violence. 36

Urging force or violence Offences [10.80] The Commonwealth government adopted most of the recommendations of the Australian Law Reform Commission in the National Security Legislation Amendment Act 2010 (Cth), which amended the sedition provisions in s 80.2. In the first place, Part 5.1 of the Criminal Code 1995 (Cth) has been amended from “Treason and Sedition” to “Treason and Urging Violence”. Section 80.2 now covers offences for urging force or violence against the Constitution, the government or its processes. This makes it an offence where a person: • (a) intentionally urges another person to overthrow by force or violence: (i) the Constitution; (ii) the Government of the Commonwealth, a State or a Territory; or (iii) the lawful authority of the Government of the Commonwealth and (b) does so intending that force or violence will occur (s 80.2(1)). • (a) intentionally urges another person to interfere by force or violence with lawful processes for an election of a member or members of a House of the Parliament or a referendum and (b) does so intending that force or violence will occur intends (s 80.2(3)). These offences are expressly extended to include recklessness. 37 Four new offences are created for urging force or violence against groups or members of groups. Section 80.2A provides that it is an offence for a person to intentionally urge another person or group to use force or violence against a targeted group, intending that force or violence will occur, where the targeted group is distinguished by race, religion, nationality, national or ethnic origin or political opinion (s 80.2A(2). The penalty is imprisonment for five years. Where in addition it can be shown that the use of force or violence would threaten the peace, order and good government of the Commonwealth, the penalty is increased to imprisonment for seven years (s 80.2A(1)). Further, s 80.2B provides that a person commits an offence if he or she (a) intentionally urges another person or group to use force or violence against a targeted person (b) intending that force or violence will occur (c) because of the offender’s belief that the targeted person is a member of a targeted group (d) which is distinguished by race, religion, nationality, national or ethnic origin or political opinion (s 80.2B(2)). The penalty is imprisonment for five years. Again where in addition it can be shown that the use of force or violence would threaten the peace, order and good government of the Commonwealth, the penalty is increased to 36

37

ALRC Report 104, [2.68]-[2.71].The Commission also recommended that the Australian Government should initiate a process through the Standing Committee of Attorneys General to remove the term “sedition” from State and Territory laws and modernise and harmonise the relevant laws in keeping with the proposed changes to Federal law. See s 80.2(2), (4).

[10.80] 685

Australian Media Law

imprisonment for seven years (s 80.2B(1)). For these purposes it is immaterial whether the targeted person actually is a member of the targeted group. The complementary sections are significant. In the English case R v Chief Metropolitan Stipendiary Magistrate, ex parte Choudhury (the Satanic Verses case) 38 it was held that common law sedition was not committed where ill-will and hostility among citizens was incited but not for the purpose of disturbing constituted authority. Now such behaviour may constitute an offence contrary to s 80.2B(2). It remains the case that these offences have some relevance for those involved in the media, primarily related to the meaning of the term “urges”, which may be seen as different from a word such as “incites”. For example, it might be argued that running a story about, or conducting an interview with, a person who advocates violence against another group in the Australian community could be construed as providing support for that person sufficient to constitute an “urging” without constituting the degree of provocation needed to amount to an incitement.

Defences [10.90] Defences are provided in s 80.3 for acts done in good faith. Specifically, these offences are not committed where the defendant: • tries in good faith to show that any of the Sovereign, the Governor?General, the Governor of a State, the Administrator of a Territory, an adviser of such person or a person responsible for the government of another country is mistaken in any of his or her counsels, policies or actions (s 80.3(a)); • points out in good faith errors or defects in the Government of the Commonwealth, a State or a Territory, the Constitution, legislation of the Commonwealth, a State, a Territory or another country, or the administration of justice of or in the Commonwealth, a State, a Territory or another country; with a view to reforming those errors or defects (s 80.3(b)); • urges in good faith another person to attempt to lawfully procure a change to any matter established by law, policy or practice in the Commonwealth, a State, a Territory or another country (s 80.3(c)); • points out in good faith any matters that are producing, or have a tendency to produce, feelings of ill-will or hostility between different groups, in order to bring about the removal of those matters (s 80.3(d)); • does anything in good faith in connection with an industrial dispute or an industrial matter (s 80.3(e)); or • publishes in good faith a report or commentary about a matter of public interest (s 80.3(f)). A defendant bears an evidential burden in relation to these matters. There is no definition of “good faith” in the statute. However, if the term is interpreted in the same fashion as it is in other Commonwealth legislation, such as the racial vilification 38

R v Chief Metropolitan Stipendiary Magistrate; Ex parte Choudhury [1991] 1 QB 429.

686 [10.90]

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legislation, it requires the exercise of prudence, caution and diligence in taking due care to avoid or minimise the risk of harm and the degree of harm likely to result from the words or acts. It would seem to have both subjective and objective aspects. The absence of subjective good faith, such as a dishonest, knowing or reckless pursuit of a purpose caught by the prohibition, is sufficient to exclude the protection. Further, an objective determination is made whether the act or words can be regarded as having been done or said in good faith having due regard to the degree of harm likely to be caused and the extent to which the act or words may be destructive of the object of the statute. 39

Journalists’ sources [10.100] It was noted in Chapter 7 that sources of information are the wellspring of a journalist’s work. In the normal course of events, having contact with a source for a story may involve activities such as associating with the source, attending the same meetings that the source attends, obtaining documents from the source, perhaps paying the source and publishing information or materials provided by the source. It will also usually involve keeping the identity of the source confidential. Prima facie none of these activities would be regarded as illegal, although there may be other issues that are relevant, such as the confidentiality of material supplied by the source. However, when the story relates to terrorism and the journalist engages in the same kind of activities, he or she may be at risk of committing an offence as a consequence of the wording of the anti-terrorism legislation.

Associating with terrorists [10.110] Under the Criminal Code 1995 (Cth), s 102.8 it is an offence to associate with a person who is a member of a terrorist organisation on two or more occasions, where that association provides support to the organisation, and is intended to assist the organisation to expand or continue to exist. Under the Act a person “associates” with another if he or she meets or communicates with that other, while “members” of a terrorist organisation include persons who are informal members, or have taken steps to become members of the organisation. 40 For these purposes, an organisation is a “terrorist organisation” if it has been listed as a terrorist organisation by regulation. An organisation can be listed if the Minister is satisfied on reasonable grounds that it has “advocated” doing a terrorist act, which includes directly or indirectly counselling, urging, or giving instruction concerning such an act (whether or not it has occurred or will occur). “Advocates” also includes directly praising the doing of a terrorist act in circumstances where there is a risk that such praise might have the effect of leading a person, regardless of his or her age or any mental impairment that the person might suffer, to engage in a terrorist act. 41 39

Bropho v Human Rights and Equal Opportunity Commission (2004) 204 ALR 761 at 787 (per French J), 795 (per Lee J).

40 41

Criminal Code 1995 (Cth), s 102.1(1). Criminal Code 1995 (Cth), s 102.1(1A) – (2A).

[10.110] 687

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In the course of compiling a story or otherwise performing his or her duties, a journalist may on two or more occasions meet or communicate with a member of a terrorist organisation, including persons who are only informal members or have taken steps to become members. This may include an organisation which, whilst not directly or indirectly engaged in terrorist acts, is one which has been listed as a terrorist organisation in that it is believed on reasonable grounds to advocate terrorist acts. In order to constitute an offence under s 102.8, the journalist must intend for the support provided by the association to assist the organisation to expand or continue to exist. “Provide support” is not defined. Providing a forum by which the person is able to present the views of the organisation to a wide audience might conceivably “provide support” to the organisation. It is worth noting in this regard that is not necessary to show that support has been provided in the form of assisting the organisation to carry out a terrorist act. The offence only applies where the defendant knows that the organisation was a listed terrorist organisation. The section will also not apply if it would infringe the constitutional freedom of communication. That would mean that a journalist would not breach the section if he or she was reporting a government or political matter. However, the offence may still be committed where the defendant is reckless as to whether the organisation is a listed one. 42 A prudent journalist will therefore, in any event, first consult the regulations to determine whether the organisation he or she intends to associate with has been listed before making that association. It has been suggested that the offence of “associating with a terrorist organisation” should be removed from the legislation, since the culpable conduct that the government has sought to outlaw is the supporting of terrorist organisations, rather than the association itself, and the legislation already includes offences of “supporting a terrorist organisation”. 43

Documents connected with terrorism Collection or making documents [10.120] A journalist may come into possession of or compile documents that relate to a terrorist organisation or terrorist activity. Under the Criminal Code 1995 (Cth), s 101.5 it is an offence where a person “collects or makes” documents which are “connected with” the preparation for, or the engagement of a person in, or assistance in a terrorist act. The words “connected with” mean that the offence is not limited to providing direct assistance. 44 If the defendant knows of the document’s connection to terrorism the penalty is 15 years imprisonment whereas if he or she is only reckless as to whether the document is connected to terrorism, the penalty is 10 years. For these purposes, it is immaterial if the terrorist act does not occur or if the document is not connected with a specific terrorist act or is connected with more than one terrorist act. 42

Criminal Code 1995 (Cth), s 102.8(5).

43

See Criminal Code 1995 (Cth), s 102.7. See A Lynch, E MacDonald and G Williams, Security Legislation Review Committee recommendations (Gilbert + Tobin Centre of Public Law, University of New South Wales, 2006). R v Khazaal (2012) 246 CLR 601 at [116] per Heydon J.

44

688 [10.120]

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The journalist would have a defence under s 101.5(5) by showing that his or her collection or making of the document was not intended to facilitate terrorism and instead was merely for the purposes of research or for a report. The section makes it clear that the journalist bears the evidential burden in this respect, meaning that the journalist has the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. 45 The mere fact that the defendant is an accredited journalist or that he or she had previously lived a useful and blameless professional life will not be sufficient to discharge the burden. 46 Example

R v Khazaal [10.130] R v Khazaal (2012) 246 CLR 601 The defendant, an accredited journalist, compiled and edited an ebook called Provisions on the Rules of Jihad. The ebook contained material concerning Islam and jihad, advocated the widespread use of assassination and described numerous methods of carrying out assassinations. The defendant downloaded the material for the book from the internet, reordered it into chapters, edited parts of it, renumbered the footnotes, inserted a dedication and provided a foreword. He then published the book under a pseudonym on a website connected to Al-Qaeda, which also contained other extremist material written by leaders of known terrorist groups. The defendant was charged under s 101.5 with making a document connected with assistance in a terrorist act, knowing of that connection. The defendant did not testify at the trial but nevertheless argued that the evidence was sufficient to suggest the reasonable possibility that he did not intend to facilitate assistance in a terrorist act. Instead he claimed that he merely intended, by lawful means, “to support the Islamic religion by compiling a reference book containing the views of authors concerning the role and rules of jihad in the Islamic religion”. He was nevertheless convicted and sentenced to 12 years imprisonment. The High Court upheld the conviction. The s 101.5(5) exception requires that an accused show evidence of a negative. While a standard method of establishing a person’s intention or suggesting a reasonable possibility about that intention is testimony by that person, that is not the only method of proof. A person’s intention may be inferred from conduct or by other evidence in the prosecution case. Here, contrary to the defendant’s argument, the fact that the defendant had acted lawfully in the past as an accredited journalist interested in Islam and had published material about Islam was incapable of supporting an inference of a reasonable possibility that he did not intend to facilitate assistance in a terrorist act. Evidence of a past useful and blameless profession said nothing about the intention with which the defendant acted on this particular occasion. Further, the defendant’s submission that the ebook was scholarly or educational was also incapable of supporting the inference. The ebook contained no material suggesting a reasonable possibility that the person who assembled and disseminated it

45 46

Criminal Code 1995 (Cth) s 13.3(6). R v Khazaal (2012) 246 CLR 601 at [76] per Gummow, Crennan and Bell JJ, [110]-[111] per Heydon J.

[10.130] 689

Australian Media Law R v Khazaal cont. did so with an intention other than an intention to facilitate assistance in a terrorist act. The only type of education and scholarship that the book promoted was instruction on who should be assassinated and how to do so. Further, the previous habitual behaviour of the defendant as a journalist in publishing under his own name articles concerning Islam that did not contain extremist material, did not suggest a reasonable possibility that in publishing under a pseudonym this ebook containing extremist material he was acting as a journalist and was not intended to facilitate assistance in a terrorist act.

[10.140] Imposition of the evidential burden on the defendant has been criticised on the grounds of being a “significant departure from accepted notions of prosecutorial responsibility to prove all the central elements of an offence committed by the accused before that person has to defend themselves”. 47

Power to obtain documents relating to terrorism [10.150] Under the Crimes Act 1914 (Cth), s 3ZQN where an authorised Australian Federal Police officer (that is the Commissioner, a Deputy Commissioner or senior executive AFP officer who is authorised by the Commissioner) considers on reasonable grounds that a person has possession or control of documents, including in electronic form, that are relevant to and will assist an investigation of a serious terrorism offence he or she may give the person a written notice requiring production of the documents. It would seem that since the section refers to “possession or control” it may be that a notice could be served on the individual journalist involved or his or her editor or executive producer. The section stipulates the essential requirements of a valid notice, namely the name of the person to whom the notice is given, the matters to which the documents to be produced relate, the manner in which the documents are to be produced, the place in which the documents are to be produced, a statement that the person must comply with the notice as soon as practicable, a warning of the effect of a failure to comply (that is, the commission of an offence under s 3ZQS) and, if the notice specifies that information about the notice must not be disclosed, a warning of the effect of a failure to comply (that is, the commission of an offence under s 3ZQT). Section 3ZQP states that the documents that are subject to the notice must relate to at least one from a list of matters which refers to financial details (that is, whether a specified person holds or is signatory to an account or has conducted a transaction with a specified financial institution and the details relating to the account or transaction or related accounts or other parties to the transaction), 48 details of travel by a specified person, 49 details of any transfer of assets to or from a specified person, 50 details of any

47 48

A Lynch, E MacDonald and G Williams (Gilbert + Tobin Centre of Public Law, University of New South Wales, 2006). Crimes Act 1914 (Cth), s 3ZQP(a) – (c).

49 50

Crimes Act 1914 (Cth), s 3ZQP(d). Crimes Act 1914 (Cth), s 3ZQP(e).

690 [10.140]

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utilities accounts (such as gas, water or electricity) held by a specified person or any other, 51 details of any telephone accounts held by or telephone calls made by or to a specified person, 52 and whether a specified person resides at a specified place or who resides at a specified place. 53 A person cannot refuse to produce the documents on the grounds that, for example, it would incriminate him or her or amount to a breach of a duty of confidentiality. 54 It may be thought that documents and records related to many of the matters listed in s 3ZQP would be primarily in the possession or control of organisations such as financial institutions, telephone or utilities companies, or public authorities. Nevertheless, in the course of compiling a story related to terrorism, it is possible for a journalist to acquire documents which may be of interest to the Australian Federal Police. It is worth bearing in mind that the only requirement is a belief on reasonable grounds that the documents are relevant to and will assist in an investigation of a serious terrorism offence. It is not necessary, for example, that the information in the documents be necessary to prevent a terrorist attack. Further, even where the documents have been supplied to the journalist by an informant on condition of anonymity, the journalist cannot resist production on the ground that to do so would amount to a breach of confidentiality. The journalists are therefore faced with a choice between protecting the identity of their informant and committing an offence under s 3ZQS.

Detention of persons [10.160] Both Commonwealth and State anti-terrorism laws provide for powers to detain persons. These powers may affect the media in different ways: they may limit matters that may be published or in certain circumstances they may empower the detention of journalists themselves.

Preventative detention orders for terrorists [10.170] Division 105 of the Criminal Code 1995 (Cth) provides a mechanism allowing for a person to be taken into custody and detained for a short period of time in order to prevent an imminent terrorist act occurring, or to preserve evidence of, or relating to, a recent terrorist act. A preventative detention order (PDO) may be obtained where a member of the Australian Federal Police has reasonable grounds to suspect that the subject of the order will engage in a terrorist act, has done an act in preparation or planning for a terrorist attack, or possesses something connected with such preparations or planning. The terrorist act must be imminent and expected, and in any event, to occur within the next 14 days. A PDO may also be obtained within 28 days of a terrorist attack where it is necessary to detain the person in order to preserve evidence. 55 The application for the order must, inter alia, specify the proposed 51 52 53

Crimes Act 1914 (Cth), s 3ZQP(f) – (g). Crimes Act 1914 (Cth), s 3ZQP(h) – (i). Crimes Act 1914 (Cth), s 3ZQP(j) – (k).

54 55

Crimes Act 1914 (Cth), s 3ZQR. Criminal Code 1995 (Cth), s 105.4.

[10.170] 691

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period of detention and the supporting facts. 56 An initial PDO may be obtained from a senior Australian Federal Police officer, with a further, continued PDO obtained from an issuing authority such as certain judges, Federal magistrates, AAT members or retired judges. 57 A continued PDO may be extended, or further extended. Section 105.41 sets out various “disclosure offences”, which prohibit, during the period of detention, a detainee, a detainee’s lawyer, a detainee’s interpreter, parents of a young detainee or a guardian of a detained person incapable of managing his or her affairs, from making an unauthorised communication to a third party of information concerning the detention, such as the fact that a PDO has been issued with respect to the detainee, the period of the detention or any other information obtained from the detainee (in the case of the other persons). Significantly for the media there is a further prohibition on third party recipients of such information (who are called “disclosure recipients”) from themselves further disclosing that information. 58 This prohibition would prevent a journalist or media outlet which learns that a person has been detained under a PDO or any other information about the detention such as the conditions in which the person is being detained from publishing that information. It therefore provides a means of ensuring that the PDO system remains immune from public scrutiny. This constraint on the free flow of information to the public is considered the price of the greater good of protecting the community from imminent terrorist acts or prosecuting those involved in such acts. Similar regimes allowing State or Territory police officers to apply for PDOs and providing for disclosure offences are provided by State and Territory legislation. 59

Detention and questioning of journalists [10.180] It is conceivable that journalists themselves may be liable for detention under the preventive detention order regime. 60 As already noted a PDO may be issued where there are reasonable grounds to suspect that the subject of the order will engage in a terrorist act, has done an act in preparation or planning for a terrorist attack, or possesses something connected with such preparations or planning. A PDO may also be obtained where it is necessary to preserve evidence. While it is unlikely that a journalist will actually engage in a terrorist act or do an act in preparation or planning for such an act, he or she may in the course of an investigation for a story come into possession of something connected with such preparations or planning. Further, should the journalist contact persons in the wake of a terrorist act there may be a risk that evidence may be lost. A similar risk may be posed if the 56 57

58 59

60

Criminal Code 1995 (Cth), s 105.7. For a discussion of the possible unconstitutionality of including serving judges as issuing authorities on separation of powers grounds, see A Lynch and G Williams, What Price Security? Taking Stock of Australia’s Anti-Terror Laws (2006), pp 48-49, 54. Criminal Code 1995 (Cth), s 105.41(6). See Terrorism (Police Powers) Act 2002 (NSW); Terrorism (Emergency Powers) Act (NT); Terrorism (Preventative Detention) Act 2005 (Qld); Terrorism (Preventative Detention) Act 2005 (SA); Terrorism (Community Protection) Act 2003 (Vic); Terrorism (Preventative Detention) Act 2006 (WA). John Fairfax Holdings Limited et al, Submission to the Senate Legal and Constitutional Legislation Committee on Anti-Terrorism Bill (No 2) 2005 (2005).

692 [10.180]

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journalist seeks to publish information that is known. In this latter respect, while large media outlets might be expected to exercise discretion in most cases, that cannot be accepted as a certainty in all circumstances. In any event, now the internet provides ready access for widespread publication by any individual. Perhaps of greater concern for journalists are the powers that had been conferred by the Australian Security Intelligence Organisation Act 1979 (Cth). Under s 34F of this Act the ASIO Director-General may seek the consent of the Minister to apply for a warrant to detain and question any person if there are reasonable grounds for believing that issuing a warrant will “substantially assist the collection of intelligence that is important in relation to a terrorism offence”. In addition, the Minister must believe that relying on other methods of collecting that intelligence would be ineffective and that there are reasonable grounds for believing that, if the person is not immediately taken into custody and detained, he or she may alert a person involved in a terrorism offence that the offence is being investigated, may not appear before the prescribed authority, or may destroy, damage or alter a record or thing he or she may be requested in accordance with the warrant to produce. If the Minister grants his or her consent, ASIO may then request an issuing authority (who may be a Federal Magistrate or judge who has been appointed to the role) to issue the warrant. Under s 34G the only test to be applied by the issuing authority is whether there are reasonable grounds for believing that the warrant will “substantially assist the collection of intelligence that is important in relation to a terrorism offence”. It is unlikely that a journalist who is investigating a story and comes into contact with terrorists or who obtains possession of documents or other items related to terrorism would, for example, intentionally alert a person involved in a terrorism offence that the offence is being investigated or destroy, damage or alter records or other things that have come into his or her possession. However, the legislation would extend to unintentional acts. Further, there may be reasonable grounds for believing that a journalist who had promised his or her source anonymity, and who does want to disclose information such as the identity of the source and any notes the journalist may have made, may choose to “not appear before the prescribed authority”. In such a case ASIO would be entitled to request the issue of a warrant for the detention and questioning of the journalist. 61 The implications of a s 34G warrant are wide ranging. Under s 34K(10) a person who has been taken into custody, or detained is generally not permitted to contact, and may be prevented from contacting, anyone at any time while in custody or detention (unless permitted in the warrant). That would include not only his or her editor or executive producer but also family and friends. The warrant may identify someone whom the person is permitted to contact by reference to the fact that he or she is a lawyer of the detained person’s choice or has a particular legal or familial relationship with the detained person. 62 The warrant may specify times when the person is permitted to contact someone identified as a lawyer of the person’s

61 62

See also the submission to the Senate Legal and Constitutional Legislation Committee by Fairfax and a range of other media organisations: John Fairfax Holdings Limited et al (2005). Australian Security Intelligence Organisation Act 1979 (Cth), s 34G(5).

[10.180] 693

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choice, 63 which time may be after there has been an opportunity for ASIO to request a direction under s 34ZO that the person be prevented from contacting a lawyer. 64 The Act does allow a detained person to be questioned in the absence of a lawyer. 65 Further, under s 34L(2) the detained person must not fail to give any information requested in accordance with the warrant and under s 34L(6) must not fail to produce any record or thing that he or she is requested to produce in accordance with the warrant. Prima facie the effect of these subsections is ameliorated by the provision that they do not apply if the person does not have the information or does not have possession or control of the record or thing. 66 However, it is further provided that the burden of proof has been reversed, so that the onus is on the journalist to prove that he or she does not have the information, record or thing: depending on the circumstances, an imposing challenge indeed! The penalty for a failure to produce the requested information, record or thing is five years imprisonment. A person may not refuse to give information, or provide a record or thing on the ground that it may intend to incriminate him or her or make him or her liable to a penalty. 67 There is also a penalty of five years imprisonment for knowingly making a false or misleading statement in purported compliance with a request for information. 68 The 2014 anti-terrorism amendments introduced a further offence with a penalty of five years imprisonment where a person has been requested to produce a record or thing and engages in conduct that results in the record or thing being unable to be produced or produced in wholly legible or usable form. 69 The offence is intended to address the risk of a person destroying or tampering with something so that it need not be produced. The Act describes the mechanisms for the period of detention. For example, strip searches are permitted and questioning must be videotaped, a record of the detainee’s appearance prior to questioning having been made. A person may not be questioned for more than an initial total period of eight hours, unless the prescribed authority allows that questioning to be continued, and then for a total period of 16 hours, unless the prescribed authority allows that questioning to be continued. In each case, questioning may be permitted to continue where it “will substantially assist the collection of intelligence that is important in relation to a terrorism offence”. 70 In any event, a person may not be detained for a continuous period of more than

63

Australian Security Intelligence Organisation Act 1979 (Cth), s 34G(6).

64

This may be where in the circumstances if the detained person were permitted to contact a person involved in a terrorism offence would be alerted that the offence was being investigated, or that a record or thing may be destroyed, damaged or altered: Australian Security Intelligence Organisation Act 1979 (Cth), s 34ZO(2). Australian Security Intelligence Organisation Act 1979 (Cth), s 34ZP. See Australian Security Intelligence Organisation Act 1979 (Cth), ss 34L(3) and (7) respectively.

65 66 67 68 69 70

Australian Security Intelligence Organisation Act 1979 (Cth), s 34L(8). Australian Security Intelligence Organisation Act 1979 (Cth), s 34L(4). Australian Security Intelligence Organisation Act 1979 (Cth), s 34L(10) Australian Security Intelligence Organisation Act 1979 (Cth), s 34R(1) – (4). These times relate to the time of actual questioning and exclude times for, for example, consultations with a lawyer or rest and recuperation.

694 [10.180]

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168 hours. 71 Accordingly, the law allows ASIO to detain non-suspects seven times longer than the 24 hours maximum that a terror suspect may be detained before being charged. 72

Providing support for terrorists [10.190] It is unlikely that mainstream media organisations would intentionally provide support for terrorists to commit terrorist acts. However, the media may engage in activities for its own purposes which, in the circumstances, expose them to falling foul of the anti-terrorism legislation with respect to financing, recruiting or publishing the materials of terrorists.

Financing terrorists [10.200] The Criminal Code 1995 (Cth), s 102.6 creates an offence where a person intentionally receives funds from, makes funds available to, or collects funds for or on behalf of, an organisation and knows, or is reckless as to whether, that organisation is a terrorist organisation. 73 Whilst normally the media may be expected not to knowingly support a terrorist organisation, it is conceivable that support might be provided by a media outlet to an organisation – for example, by publishing an advertisement for the organisation – in circumstances in which the media outlet is adjudged to have been “reckless as to whether the organisation was a terrorist organisation”. For instance, a media outlet might receive reliable warnings that an organisation with an innocuous outward appearance is in fact a front for a terrorist organisation but nevertheless continue to publish the advertisement. Where a media outlet receives such a warning, it may be necessary in the circumstances for it to at least make some form of inquiry concerning the true nature of the organisation if it is to avoid being held to have been reckless.

Recruiting terrorists [10.210] The Criminal Code 1995 (Cth), s 102.4 provides that a person commits an offence if he or she intentionally recruits a person to join, or participate in the activities of, an organisation and he or she knows, or is reckless as to whether, that organisation is a terrorist organisation. “Recruit” is defined in s 102.1 to include induce, incite and encourage. Nevertheless, it is not clear what actions may be taken to amount to “induce, incite and encourage” a person to join an organisation. For example, people might be induced, or are encouraged to join a group or association by an advertisement that they find attractive or by a story published about the group or association in a newspaper or magazine, or on the television or internet. Once again it might be expected that normally the media would not intend to promote a terrorist organisation nor seek to recruit new members for it. However, depending on the circumstances it is conceivable that a media outlet may intentionally promote an organisation and later be adjudged to have been reckless as to whether the organisation was a terrorist organisation. As has already been noted, where for example a 71

Australian Security Intelligence Organisation Act 1979 (Cth), s 34S.

72 73

A Lynch and G Williams (2006), p 40. See also Criminal Code 1995 (Cth), s 103.

[10.210] 695

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media outlet has received reliable warnings concerning the true nature of an organisation with an innocuous outward appearance, it may be that there is at least a requirement that some form of inquiry be made lest the media outlet be adjudged as having been reckless. 74 The phenomenon of Australian citizens travelling overseas to fight alongside terrorist organisations prompted the enactment in 2014 of a further prohibition in s 119.7 for publishing recruitment advertisements. The section contains two variations on this theme. Under s 119.7(2) a person commits an offence if he or she (a) publishes in Australia an advertisement or an item of news that was procured by the provision or promise of money or any other consideration; and (b) is reckless as to the fact that the publication of the advertisement or item of news is for the purpose of recruiting persons to serve in any capacity in or with an armed force in a foreign country. Under s 119.7(3) an offence is committed if the advertisement or news item contains information: (i)

relating to the place at which, or the manner in which, persons may make applications to serve, or obtain information relating to service, in any capacity in or with an armed force in a foreign country; or

(ii)

relating to the manner in which persons may travel to a foreign country for the purpose of serving in any capacity in or with an armed force in a foreign country. In both cases the penalty is 10 years imprisonment. It is very unlikely that mainstream media organisation would publish an advertisement for the recruitment of foreign fighters. However, with fewer resources for their own correspondents in foreign countries, mainstream media organisations are increasingly reliant on overseas news agencies as a means of obtaining stories about overseas conflicts, including those involving terrorist forces. That may amount to publication of an “item of news” procured by “promise of money” and be enough to satisfy the first arm of the offence in s 119.7(2). The question would therefore become whether there was recklessness as to the fact that the item was for the purpose of recruitment or contained information relating to the place or manner of recruitment or manner in which persons travel to fight overseas. It is not clear what steps would need to be taken in order to avoid later being judged to have been reckless. There is also ambiguity in the section. For example, there is no definition of “item of news”. These words could embrace everything from prepared news footage to the information that goes into compiling a story. Similarly, there is no definition of “any other consideration”, which may be something as basic as the provision of food or water or even something intangible like the giving of directions. It is readily conceivable therefore that a journalist could in the normal course of business when compiling a story in the public interest on a matter concerning terrorism inadvertently, but in hindsight be deemed recklessly, fall foul of the section.

74

See [10.200].

696 [10.210]

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Disclosing sensitive information [10.220] The Australian Security Intelligence Organisation Act 1979 (Cth), s 92 prohibits the publication “in a newspaper or other publication, or by radio broadcast or television” material identifying a person as an ASIO employee or former ASIO employee. In 2014 the Act was amended to introduce s 35P, which also prohibits the unauthorised disclosure of information relating to covert operations designated “special intelligence operations” (SIO). The 5 year penalty imprisonment for this offence is increased to 10 years imprisonment where the disclosure endangers the health or safety of any person or prejudices the effective conduct of an SIO. This is a very wide prohibition since it is not restricted to SIOs alone but also to anything “relating to” such an operation. It might therefore include the activities of other agencies, such as the Australian Federal Police, if those activities “relate” to an SIO. These offences complement similar offences inserted into the Crimes Act 1914 in 2010. Section 15HK prohibits the unauthorised disclosure of information that relates to a “controlled operation” (CO) and imposes a penalty of 2 years imprisonment while s 15HL increases the penalty to 10 years if the disclosure endangers the health or safety of any person or prejudices the effective conduct of a CO. Controlled Operations are operations involving the Australian Federal Police. The distinction between the two sets of offences is that SIOs are designed to collect intelligence while COs involve the investigation of criminal offences. The s 35P offences are apt to catch situations such as the disclosure of thousands of classified documents by Bradley Manning to the WikiLeaks website in 2013 and the delivery of over 1.7 million intelligence files, including Australian intelligence files by, Edward Snowden to the Guardian and Washington Post newspapers, some of which material was also published in Australia by the ABC in particular. Indeed Attorney-General Brandis made public statements that suggested that the s 35P was primarily concerned with “Snowden-like” cases 75 rather than journalists who report on those disclosures. However there is no journalist immunity or public interest defence to the offences. By their terms the offences are capable of extending to the media, such as the ABC and Guardian Australia in the Snowden case. The absence of a public interest defence to the offences also means that an operation involving ASIO officers that is deemed to be an SIO may now be protecting from publication, even in circumstances where, for example, the operation has resulted in death or injury (including death or injury of innocent bystanders), involved wrongful arrest or targeting of innocent Australian citizens, or involved embarrassment for the agency and/or government. Deeming any such incident to be an SIO would enable a government to shroud it in a cloak of secrecy safe from public examination. Concerns raised in the Senate that a journalist might inadvertently break s 35P were addressed by inserting a provision that recklessness regarding whether an operation is an SIO is the requisite degree of fault. However, what steps a journalist must take in order to avoid being judged to have been reckless – a judgment that may be made some time after an event with the benefit of hindsight and without the pressures of deadlines – is by no means clear. 75

ABC Television, “Question and Answer” 3 November 2014 http://www.abc.net.au/tv/qanda/vodcast.htm.

[10.220] 697

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Without any such guidance the threat of prosecution for transgressing the section is likely to have a chilling effect on journalists’ willingness to scrutinise operations involving ASIO or, indeed, the Australian Federal Police.

Entering or remaining in declared areas [10.230] The 2014 anti-terrorism amendments introduced an offence contained in the Criminal Code 1995, s 119.2 of entering, or remaining in, an area in a foreign country that is subject of a declaration. The purpose of the offence is to address cases of Australians who travel overseas in order to fight with, or provide other support for, terrorist organisations. However, it is also capable of catching such travel for innocent purposes, such as a journalist entering such areas of conflict for the purposes of making a documentary. There is a defence, however, in s 119.2(3) that is available for a person who enters or remains in such an area for a “legitimate purpose”. A list of such legitimate purposes is provided and includes “making a news report of the events in the area, whether the person is working in a professional capacity as a journalist or is assisting another person working in a professional capacity as a journalist”.

Other restrictions on free speech related to terrorism Classification schemes [10.240] As is discussed elsewhere in this book, 76 Commonwealth and State legislation provide for a national statutory scheme for the classification of publications, films and computer games. Each of these forms of media has a range of classifications which include a RC (Refused Classification) category. Most jurisdictions do not specifically state that a publication, film or computer game promoting or encouraging terrorism should be refused classification. 77 However, in the case of publications, the guidelines for a RC classification refers to a publication which “promotes, incites or instructs in matters of crime or violence”, 78 while in the case of films, videos and computer games, a “refused classification” rating should be given for “detailed instruction or encouragement in matters of crime or violence”. Accordingly, a publication, film or computer game which is seen as advocating or encouraging terrorist acts could attract a “refused classification” designation. As a consequence it would be illegal for such material to be possessed for copying, sold, displayed or delivered.

76 77 78

See [9.640]. Cf Classification (Publications, Films and Computer Games) Enforcement Act 1995 (Tas), s 3 which defines “objectionable material” to include that which promotes, incites or encourages terrorism. See, for example, Brown v Classification Review Board (1997) 145 ALR 464.

698 [10.230]

Chapter 10 – Media and National Security

The Classification Review Board had occasion to consider a number of applications by the then Federal Attorney-General Philip Ruddock to have publications “refused classification”. 79 In classifying some of these publications as “refused classification”, the Review Board gave some indication of where the line may be drawn between free speech and unacceptable speech. Examples

Defence of the Muslim Lands [10.250] Defence of the Muslim Lands, OFLC, Review Board Decisions (10 July 2006), pp 6-7 The book Defence of the Muslim Lands was described by the Review Board as, having been written by a prominent Islamic terrorist. The Board observed that the publication “may appeal to some disenfranchised segments of the community and … was designed to encourage such people to take up arms and commit specific crimes against non-believers, in the cause of Islam” and was “a one-sided and extreme interpretation of Islam [which] did not have any discernible educational or literary merit.” The Review Board considered the general principle that adults should be able to read what they want, but also the community’s concerns about material that promoted terrorism and other criminal activities. After considering the Criminal Code 1995 (Cth), s 101.1 offence of “engaging in a terrorist act”, the Review Board was unanimously satisfied that the objective purpose of the book was to promote and incite actions of precisely that type. Accordingly the book was refused classification.

Join the Caravan [10.260] Join the Caravan, OFLC, Review Board Decisions (10 July 2006). The Review Board described the book Join the Caravan as having a “cumulative impact [that] draws the reader to the conclusion that Jihad is an obligation of Muslims. It takes the reader down a narrow path with the conclusion being that it is obligatory to go out and commit the crime of terrorism, particularly suicide bombing and other operations where death to the perpetrator is the likely outcome.” The Review Board unanimously referred to the Criminal Code 1995 (Cth), s 101.1 in the course of concluding that the publication should be refused classification on the grounds that it promoted and incited in matters of crime and violence.

[10.270] By contrast, the Review Board unanimously did not consider a “refused classification” rating was warranted in the case of, for example, an academic-style military 79

The decisions may be viewed on the OFLC website at http://www.classification.gov.au/www/cob/ classification.nsf/Page/ClassificationinAustralia_Whoweare_ClassificationReviewBoardDecisions_ ClassificationReviewBoardDecisions at 1 August 2011.

[10.270] 699

Australian Media Law

analysis of numerous historical battles that Muslims have fought in the time of Mohammed without reference to any modern events; 80 a self-published book described as a “rant” against all aspects of Australian society and lax moral values along with a number of apparently outlandish conspiracy theories involving the West; 81 and a video of a lecture by a Sheikh in which he presented an academic discussion of the nature of Jihad and an explanation of how it differs from acts of terrorism, and explicitly stated that suicide bombing is not justified by Islam and that Muslims in non-Muslim countries are not permitted, under Islam, to attack the Governments or societies in which they live. 82 The distinction would appear to have been based on an objective determination of the purpose of the publication, and whether that purpose is to encourage a disposition towards a crime in one who does not already have that disposition or to magnify an existing predisposition to crime. 83 This would be unlikely to be the case where, for example, a publication takes an educative or scientific approach to terrorists or terrorist activity. However, the dividing line is a question of fact and degree upon which reasonable people may disagree. Example

The Absent Obligation: And Expel the Jews and Christians from the Arabian Peninsula [10.280] The Absent Obligation: And Expel the Jews and Christians from the Arabian Peninsula, OFLC, Review Board Decisions (10 July 2006) 84 The book The Absent Obligation: And Expel the Jews and Christians from the Arabian Peninsula was described as having as its fundamental thesis that it is obligatory upon every Muslim to fight in order to re-establish the Islamic State. The book also examined the Islamic concept of Jihad. The majority of the Review Board concluded that the publication did not contain any tangible instruction, in the sense required, in matters of crime or violence. When considering “the objective purpose of the publication” the majority viewed the book as stopping short of advocating any particular crime or violence, and that a generalised call to fight in the name of Allah, without details of where, by what means and at what time could not comprise the promotion or incitement in matters of crime or violence as that term has been interpreted by the Courts. By contrast, the minority thought that although there was no specific exhortation in the publication to undertake a specific martyrdom operation or to undertake such an operation in a specific area, the general tenor of the publication was to encourage and incite Muslims “everywhere” to fight for 80 81

OFLC, Review Board Decisions, The Qur’anic Concept of War (10 July 2006). OFLC, Review Board Decisions, The Criminal West (10 July 2006).

82 83

OFLC, Review Board Decisions, Jihad or Terrorism (10 July 2006). OFLC, Review Board Decisions, The Absent Obligation: And Expel the Jews and Christians from the Arabian Peninsula (10 July 2006), p 5 citing Chief Executive Officer of Customs v Carman [2004] QDC 433 and Brown v Classification Review Board (1997) 145 ALR 464. OFLC, Review Board Decisions, The Absent Obligation: And Expel the Jews and Christians from the Arabian Peninsula (10 July 2006).

84

700 [10.280]

Chapter 10 – Media and National Security The Absent Obligation: And Expel the Jews and Christians from the Arabian Peninsula cont. Islam, including physical fighting, the overthrowing of leaders of countries – particularly in the Arabian peninsula – that are not committed to Shariah law and to undertake martyrdom operations, even where such operations result in the deaths of Muslims. They thought that the objective purpose of its publication and its sale in Australia for the first time in 2000 (it had been previously printed numerous times in Arabic) was to encourage and incite Muslims – who may not otherwise be so encouraged – to undertake violent Jihad.

[10.290] In response to decisions such as that in The Absent Obligation case, 85 the then Federal Attorney-General indicated a wish to broaden these laws and to introduce a new guideline for the “refused classification” category in the form of material which “advocates terrorism”. This would make it sufficient to attract an RC classification if the publication, film or computer game were to “glorify, praise or support acts of terrorism” even if there was no specific exhortation or instruction to commit a terrorist act. Terrorist acts were seen as a specific threat to Australian society and for that reason alone were seen as justification for a “zero tolerance approach” to material that advocated such acts. 86 This approach did not gain the support of all State/Territory Attorneys-General, who expressed concern that the laws would have impinged upon freedom of political discussion. 87 Nevertheless the Federal government sidestepped this opposition by amending the Classification (Publications, Films and Computer Games) Act 1995 (Cth) by the Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Act 2007 (Cth). This introduced s 9A which provides that a publication, film or computer game that advocates the doing of a terrorist act must be classified RC. “Advocates” is given the same meaning by s 9A(2) as the same term in Criminal Code Act 1995 (Cth), s 102.1(1A), namely that the publication, film or computer game advocates the doing of a terrorist act if it: (a)

directly or indirectly counsels or urges the doing of a terrorist act;

(b)

directly or indirectly provides instructions on the doing of a terrorist act; or

(c)

directly praises the doing of a terrorist act in circumstances where there is a risk that such a praise might have the effect of leading a person (regardless of his or her age or any mental impairment (within the meaning of section 7.3 of the Criminal Code) that the person might suffer) to engage in a terrorist act.

The only exception provided by s 9A(3) is where the publication, film or computer game depicts or describes a terrorist act, but the depiction or description could reasonably be considered to be done merely as part of public discussion or debate or as entertainment or satire. 85

“Ruddock seeks broader powers to ban terrorism books” interview with Philip Ruddock, AM Programme, ABC Radio, 26 July 2006 (transcript available at http://www.abc.net.au/am/content/2006/s1697172.htm viewed 30 July 2011).

86 87

“Ruddock bans ’terrorism’ books”, The Australian (12 April 2007). B Cubby, “Ruddock, States argue over laws to curb “terrorist” publications” The Australian (13 April 2007).

[10.290] 701

Australian Media Law

The amendment has been criticised for removing the essential discretion in censorship decisions from the independent Classification Board and Classification Review Board by pre-empting their decisions at a political level. 88

Broadcasting standards [10.300] Also elsewhere in this book, 89 the topic of regulation of broadcasting under the Broadcasting Services Act 1992 (Cth) by way of program standards is discussed. The Broadcasting Services (Anti-terrorism Requirements for Open Narrowcasting Television Services) Standard 2008 provides that licensees must not broadcast a program which might be construed as encouraging a person to join, or donate funds to a terrorist organisation.

88 89

D Hume and G Williams, “Australian Censorship Policy and the Advocacy of Terrorism” (2009) 31(3) Sydney Law Review 381. See [14.940].

702 [10.300]

Negligence

11

[11.10] INTRODUCTION .................................................................................... 703 [11.20] DUTY AS EMPLOYER .............................................................................. 703 [11.40] DUTY BASED ON GENERAL PRINCIPLES ............................................. 706 [11.50] IMPEDIMENTS TO A SUCCESSFUL CLAIM .......................................... 707 [11.60] Coherency .............................................................................................. 707 [11.70] Relevant damage ................................................................................... 708 [11.80] Duty of care and policy considerations ............................................... 708 [11.90] Causation ................................................................................................ 709 [11.100] RELEVANT MEDIA CONDUCT ............................................................. 709 [11.110] Dangerous promotions and similar activities .................................... 710 [11.140] Newsgathering and broadcast/publication activities ....................... 711 [11.150] [11.200] [11.210] [11.270]

Newsgathering activities .................................................... 711 Broadcast activities ............................................................ 714 Content resulting in personal injury ................................... 715 Content deemed dangerous .............................................. 720 [11.330] Economic loss ....................................................................................... 725

Introduction [11.10] The nature of journalism and broadcasting means that a media organisation may be at risk of liability for negligence on two possible grounds: as an employer based on the duty of care owed to its employees and based on a duty of care, arising through general principles, which is owed to those who may be injured by its activities. The former duty, as an emanation of an established duty category, is perhaps less problematic than the latter.

Duty as employer [11.20] It is well established that employers owe a duty to take reasonable care for the safety of their employees. 1 The common law imposes the duty because the employer is in a position to direct his or her employees to go in harm’s way and to do so in circumstances over which the employer is able to exercise control. 2 The duty extends not only to risk of physical injury but also risk of psychiatric injury. 3 The content of the duty takes into account the obligations which the parties owe one another under the contract of employment, the obligations arising from that relationship which equity would enforce and any applicable statutory provisions. 4 1 2

Kondis v State Transport Authority (1994) 154 CLR 672; Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44. Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1.

3 4

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383; S v State of New South Wales [2009] NSWCA 164. Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at 53.

[11.20] 703

Australian Media Law

Employees in a media context, such as reporters, photojournalists and film crews, are not infrequently assigned duties that may expose them to the risk of physical and/or psychiatric injury. This need not necessarily involve being sent into war zones or other places of conflict that pose a threat to the employee’s physical wellbeing or even life. It may include prolonged exposure to the after-effects of traumatic events and/or the suffering of others, which may have a cumulative detrimental effect on the psychological wellbeing of the employee. 5 The duty is not an absolute one. Instead, it is the duty of a reasonably prudent employer. This is often expressed as a duty to take reasonable care to avoid exposing employees to unnecessary risk of injury. 6 The High Court in Czatyrko v Edith Cowan University 7 described the duty as follows: If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in cases of repetitive work. 8

This does not mean that the employer will necessarily be liable should the employee be injured. Central questions will be foreseeability of risk, in the sense of it being not far-fetched or fanciful, and a failure to take reasonable steps to avoid that risk. 9 Assessing foreseeability in an industrial context involves taking account of the nature and extent of the work being done by the particular employee, and any signs manifested by the employee concerned. 10 Nonetheless, an employer is not obliged to take positive steps to acquire knowledge of any special weaknesses of an employee. 11 Unlike cases of risk of physical injury in the workplace, determining what may be regarded as a reasonable system for identifying psychiatric problems that warrant intervention by an employer will involve issues concerning human dignity, autonomy and privacy. An employee may regard as an invasion of privacy a supervisor who suggests that the employee is manifesting signs of psychiatric problems to the extent that help should be sought, especially where they are no apparent adverse effects upon the employee’s work performance. 12 As in all cases, when assessing what a reasonable employer would do in response to a risk of foreseeable harm it is necessary to consider the probability and gravity of harm to the employee, the nature and capacity of the employer and the cost, inconvenience and 5 6

See, for example, Hegarty v Queensland Ambulance Service [2007] QCA 366 (ambulance officer); AZ v The Age (No 1) [2013] VSC 335 (photojournalist). Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25 (per Dixon CJ and Kitto J); Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 307-308 (per Mason, Wilson and Dawson JJ), 313 (per Brennan and Deane JJ).

7 8 9 10

Czatyrko v Edith Cowan University (2005) 214 ALR 349. Czatyrko v Edith Cowan University (2005) 214 ALR 349 at 353. Wyong Shire Council v Shirt (1980) 146 CLR 40. Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at 57.

11 12

Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449. Hegarty v Queensland Ambulance Service [2007] QCA 366 at [46].

704 [11.20]

Chapter 11 – Negligence

practicality of precautions that the employer may take. 13 Moreover, the employee must establish that it is more probable than not that the taking of reasonable care would have prevented the employee’s injury. 14 Example

AZ v The Age [11.30] AZ v The Age (No 1) [2013] VSC 335 The plaintiff was employed by The Age newspaper as a photographer for 21 years. During the course of this employment she attended upon and covered stories arising out of homicides, suicides, fatal car accidents, fires scenes, natural disasters, the Port Arthur massacre, the September 11, 2001 World Trade Centre terrorist attacks and other traumatic and tragic events including death and grief. In 2003 she was assigned the task of photographing families of the victims of the first bombings in Bali for an anniversary story. The contents of those interviews were unusual, heart-wrenching and sad. The plaintiff claimed that she continued to be affected by the interviews following the assignment and that her condition worsened over time to the point of her being diagnosed as suffering post-traumatic stress disorder and major depression that was so severe that it was likely to prevent her from engaging in any work in the foreseeable future and to prevent her from ever being able to work as a photographer again. McMillan J of the Supreme Court of Victoria held that by 2003 there was a general awareness of the impact of traumatic work on the wellbeing of journalists. However, that did not establish that the newspaper was on notice of any particular susceptibility on the part of the plaintiff. While she may have been exposed to crime scenes as a young photographer, a reasonable employer would not view this work as being capable of having an effect on the plaintiff 10 to 15 years later. Neither would her work as a features editor viewing photographic images coming in from the 11 September 2001 terrorist attacks suggest that that exposure was any higher than any other employee that passed by those images. There was evidence that at one point the plaintiff had been referred to a system of counselling called the Employee Assistance Program (EAP) but had reported that she had responded positively to the counselling. Further, even if the risk to the plaintiff of psychiatric injury was foreseeable, the newspaper did not fail in its duty. Her Honour held that the newspaper had an adequate culture and system of support, reallocation and counselling for its staff. This culture and system permitted and in fact encouraged reports of psychological symptoms and the EAP program provided staff with the opportunity to access confidential, off-site counselling for both work and personal issues, with a number of sessions being paid for by the newspaper. It was significant that while some doubts have been expressed about the efficacy of the EAP program it had been the main source of support employed by other media outlets including the ABC. In addition to the EAP program the newspaper proactively arranged or encouraged counselling sessions where journalists were exposed to frontline emergencies that were particularly distressing such as the Port Arthur massacre. Moreover, it was not shown that 13 14

Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47–8. Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at 442.

[11.30] 705

Australian Media Law AZ v The Age cont. any additional steps such as having a peer support program would not have ensured that the plaintiff would have been identified and referred to counselling at an earlier stage. Failure to take such steps therefore could not be shown to have caused the plaintiff’s injury.

Duty based on general principles [11.40] Apart from the duty owed to their employees, there may be a question whether journalists or media organisations owe a duty of care to members of the public based on general principles. The once “imperial march of negligence” 15 – in which duties of care were recognised in many novel situations – has now abated. 16 However, in the myriad of interactions between the media and others and in a society where people may feel fewer inhibitions to commence litigation, the possibility of an injured party bringing such an action can never be dismissed outright. Indeed, there has been a decision by an Australian court that has held that in an appropriate case the media owe a duty of care to avoid causing personal injury by its reporting. 17 There has been a more extensive history of actions for media negligence in the United States, where negligence is often claimed in the alternative to claims for invasion of privacy and/or defamation. However, a distorting feature of these cases not present in Australia is the effect of the First Amendment guarantee of free speech. United States authorities regard certain categories of speech as falling outside First Amendment protection, such as hate speech inciting violent or unlawful activity, 18 obscenity 19 and defamation. 20 United States cases dealing with claims against the media for negligence have tended to fall into two groups. Most have dismissed these claims on the grounds that since the broadcast or publication did not incite imminent violence or affect reputation it was fully protected by the First Amendment. 21 By contrast, other cases have emphasised the harm that

15 16

Astley v Austrust Ltd (1999) 197 CLR 1 at 23 See, for example, Sullivan v Moody (2001) 207 CLR 562.

17 18 19 20

See [11.230]. Brandenburg v Ohio 395 US 444 (1969). Miller v California 43 US 15 (1973); Ginzburg v United States 383 US 463 (1966). New York Times v Sullivan 376 US 254 (1964).

21

The Brandenburg standard has been described as “an almost impenetrable barrier” to claims for harm from media negligence: see, for example, L Vansen, “Incitement by any other name: Dodging a First Amendment misfire in Rice v Paladin Enterprises Inc” (1998) 25 Hastings Const LQ 605 at 610; D Crump, “Camoflaged incitement: Freedom of speech, communicative torts and the borderline of the Brandenburg test” (1994) 29 Ga L Rev 1 at 54.

706 [11.40]

Chapter 11 – Negligence

has been caused, with only minimal attention being paid to the First Amendment. 22 Both approaches have attracted criticism. The first has been said to be inappropriate because the hate speech standard was designed for cases of state-imposed limitations on individuals and is based on what is necessary for the state’s interest in maintaining order and public safety. As such it is not suited to deciding disputes between two private parties where one has caused the other to suffer harm. 23 Further, the language of the defamation cases concerned attempts to censor political speech, and did not address the issue of liability for the results of that speech. 24 In the case of the second approach, the superficial analysis of First Amendment issues has led to the criticism that such cases lack fully developed reasoning and therefore provide little guidance for future courts. 25 The fundamental problem remains that until the United States Supreme Court decides a civil case involving redress of harm resulting from speech, lower courts will continue to try to resolve these claims by applying ill-fitting doctrine. 26

Impediments to a successful claim [11.50] Any claim for negligence against a media defendant in Australia is likely to encounter a number of obstacles to success.

Coherency [11.60] Coherency in the law demands that a duty of care will not be recognised where to do so would encroach on the established domain of another cause of action. 27 Accordingly, where the gist or core of the plaintiff’s complaint is that he or she has suffered injury to his or her reputation and injury to his or her feelings by reason of what the defendant communicated or published about the plaintiff to third persons, the plaintiff’s remedy, if any, lies in defamation, with its balance between reputation and free speech, not negligence. 28 Thus, for example, where sloppy journalism results in a media organisation linking an innocent person with a crime or other notorious event, with the result that the innocent person suffers damage to reputation, with or without other harm, the relevant cause of action will be defamation rather

22 23 24 25 26 27 28

See, for example, Weirum v RKO General 539 P 2d 36 (1975); Hyde v City of Columbia 637 SW 2d 251 (1982) (Mo CA) cert denied 459 US 1226 (1983). G R Smith, “Media liability for physical injury resulting from the negligent use of words” (1988) 72 Minn LR 1193 at 1213-1214. Smith (1988) 72 Minn LR 1193 at 1216-1217. See Smith (1988) 72 Minn LR 1193 at 1211. J R Linneman, “Davidson v Time Warner: Freedom of speech … but watch what you say! The question of civil liability for negligence in the mass media” (2000) 27 N Ky L Rev 163. Sullivan v Moody (2001) 207 CLR 562 at 580-581; Tame v New South Wales (2002) 211 CLR 317 at 335 (per Gleeson CJ), 342 (per Gaudron J), 361 (per McHugh J). Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32 at 42; Gould v TCN Channel 9 [2000] NSWSC 707 at [27]; Gacic v John Fairfax Publications Pty Ltd [2005] NSWSC 1210 at [49].

[11.60] 707

Australian Media Law

than negligence. 29 This will be so even where the claim for defamation has failed in the circumstances by reason of the operation of any of the controls or defences which apply to claims in defamation. 30

Relevant damage [11.70] In any action for negligence the plaintiff must first be able to prove compensable harm. Where the harm alleged is psychological injury, the plaintiff is required to show that he or she suffered a “recognised psychiatric illness” rather than more transient emotional reactions. 31 Further, in many jurisdictions, it must be reasonably foreseeable that a person with a normal standard of susceptibility would have suffered such illness in the circumstances, unless the defendant knew or ought to have known of any special susceptibility. 32

Duty of care and policy considerations [11.80] Despite previous attempts, the courts are yet to settle on the appropriate approach to determining whether a duty of care exists in particular circumstances. However, in a different context recent Australian cases have emphasised an examination of the salient features of the case, such as whether the plaintiff is in a position of particular vulnerability, whether the defendant is in a position of control, and the degree of the defendant’s knowledge. 33 Courts have also stressed reasonableness as a central consideration, as well as any countervailing policy considerations. 34 Although Australia lacks the extensive free speech doctrine that surrounds the First Amendment in the United States, notions of free speech and a public interest in the free flow of information will be a strong factor militating against recognition of a duty of care in many cases. A repeat broadcast of the same program may reach an entirely new audience. Therefore the potential audience for a broadcast or publication audience may be counted in terms of not 29 30 31

32

33 34

Cf, for example, the facts in Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 (wrong female teacher reported as engaging in unlawful sexual misconduct with students at prestigious school). Gacic v John Fairfax Publications Pty Ltd [2005] NSWSC 1210 at [42]. Civil Law (Wrongs) Act 2002 (ACT), s 35(1); Civil Liability Act 2002 (NSW), s 31; Civil Liability Act 1936 (SA), s 54(2); Civil Liability Act 2002 (Tas), s 33; Wrongs Act 1958 (Vic), s 72; cf Civil Liability Act 2002 (WA), s 5Q. In Queensland and the Northern Territory, the formulation is “recognisable psychiatric illness”: see, for example, Mount Isa Mines Ltd v Pusey (1971) 125 CLR 383 at 394. This was the injury suffered in the first Australian case to recognise a duty of care on the part of the media: see Doe v Australian Broadcasting Corporation [2007] VCC 281. See further [11.230]. See Civil Law (Wrongs) Act 2002 (ACT), s 34; Civil Liability Act 2002 (NSW), s 32; Civil Liability Act 1936 (SA), s 33; Civil Liability Act 2002 (Tas), s 34; Wrongs Act 1958 (Vic), s 72; Civil Liability Act 2002 (WA), s 5S. In Queensland and the Northern Territory normal fortitude is relevant to reasonable foreseeability but is not a prerequisite: see Tame v New South Wales (2002) 211 CLR 317 at 332-333, 335-338 (per Gleeson CJ), 342-344 (per Gaudron J), 380, 383-386 (per Gummow and Kirby JJ). Cf McHugh J at 345-346, 357-360, and Callinan J at 439, who saw “normal fortitude” as an indispensable requirement. See also Hayne J at 519. See, for example, Perre v Apand Pty Ltd (1999) 198 CLR 180. See also Sullivan v Moody (2001) 207 CLR 562. See Tame v New South Wales (2002) 211 CLR 317.

708 [11.70]

Chapter 11 – Negligence

only geography but also time. As such, the potential for an imposition of liability “in an indeterminate amount for an indeterminate time to an indeterminate class” may be a relevant consideration in a given case. 35 Moreover, media defendants have no real control over who will receive their message. Even messages only intended for adults are frequently viewed by minors. 36 The plaintiff must show that the risk of harm was reasonably foreseeable. It has been suggested that the expansion in cases of defendants’ liability which reached unrealistic levels in the late 1990s and early 2000s was exacerbated by courts weakening foreseeability. 37 The “not far fetched or fanciful” formula for foreseeability has become to be regarded as an undemanding test. It has been said that the test should be revisited at common law, with greater emphasis being placed on the question whether, if a risk existed, it may reasonably be disregarded. 38 There has been a redefinition of reasonable foreseeability to mean “not insignificant” under civil liability legislation in most States. 39

Causation [11.90] The plaintiff must show a causal connection between any breach of duty and the resulting harm. At common law, this is determined on a common sense basis, 40 while under some civil liability legislation causation is shown where the plaintiff would not have suffered harm “but for” the defendant’s breach, or in the case of multiple causes, where the defendant’s breach materially contributes to that harm. 41

Relevant media conduct [11.100] An individual may suffer harm from a range of media conduct, including the way it conducts its operations, and content that is published or broadcast. The relevant harm may be physical or psychiatric, or pure economic loss. The following is a brief survey of potential cases of complaint.

35

36 37 38 39

40 41

Ultramares Corporation v Touche 174 NE 441 (NY 1931) at 444 per Cardozo CJ. By contrast, this is not a difficulty associated with defamation since the requirement that the publication “reasonably refer” to the plaintiff will limit the number of claims. L W Brill, “The First Amendment and the power of suggestion: Protecting ’negligent’ speakers in cases of imitative harm” (1994) 94 Columbia LR 984 at 1039. Tame v New South Wales (2002) 211 CLR 317 at 353 per McHugh J. Tame v New South Wales (2002) 211 CLR 317 at 354 per McHugh J. Civil Law (Wrongs) Act 2002 (ACT), ss 42 – 43; Civil Liability Act 2002 (NSW), s 5B; Civil Liability Act 2003 (Qld), s 9; Civil Liability Act 1936 (SA), ss 31 – 32; Civil Liability Act 2002 (Tas), s 11; Wrongs Act 1958 (Vic), s 48; Civil Liability Act 2002 (WA), s 5B. March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; Bennett v Minister of Community Welfare (1992) 176 CLR 408. Civil Law (Wrongs) Act 2002 (ACT), s 45; Civil Liability Act 2002 (NSW), s 5D; Civil Liability Act 2003 (Qld), s 11; Civil Liability Act 1936 (SA), s 34; Civil Liability Act 2002 (Tas), s 13; Wrongs Act 1958 (Vic), s 51; Civil Liability Act 2002 (WA), s 5C.

[11.100] 709

Australian Media Law

Dangerous promotions and similar activities [11.110] There may be circumstances where the media by its conduct endangers physical safety, resulting in either physical injury and/or psychiatric injury. The case for an action in negligence should be strongest where the media defendant has engaged in conduct that is no different from that engaged in by other members of the community, such as promotional activities. 42 In such cases the types of factors that normally militate against media liability, such as freedom of speech, have minimal influence and may be regarded as easily outweighed by countervailing considerations including the plaintiff’s interest in having his or her injury compensated. 43 Example

Weirum v RKO General Inc [11.120] Weirum v RKO General Inc 539 P 2d 36 (Cal 1975) A rock radio station conducted a promotion in which an on-air personality travelled in a conspicuous red vehicle to different locations in the Los Angeles area, and the station periodically broadcast information on his whereabouts to listeners and offered a cash prize to the first to physically locate him. In the course of a race between teenagers in two cars to be first to locate the personality, a third car was run off the road, killing the driver. The California Supreme Court held that the promotion involved obvious risk for those participating and other members of the community and consequently the station was responsible for the motorist’s death.

[11.130] Such an event is easy to conceive in today’s climate of radio station give-aways and promotions, including those utilising roving station vehicles and personalities and those involving excessive behaviour by contestants, to gain publicity for the station. In such cases the conduct of the participant should not be treated as a novus actus interveniens where it is the very thing likely to occur in the circumstances. 44

42

See Riley v Triplex Communications Inc 874 SW 2d 333 (Tex 1994) where a radio station was held liable for the results of its promotion. Cf, however, Superior Court for the City and County of San Francisco v Vargas 137 Cal App 3d 1002 (1982) where a California Appeals court dismissed a claim alleging the producers of the film Boulevard Nights were negligent because they knew or ought to have known that the film would attract violence-prone people to the vicinity of theatres showing the film and had failed to provide security protection. The court thought that such a liability would offend against the First Amendment due to the substantial attendant costs which would have a chilling effect upon the selection of subject matter for films. The court distinguished Weirum (see [11.120]) on the basis that unlike the conduct of the defendant in that case the conduct here was “socially unobjectionable”.

43

A duty has been recognised especially in the case of the defendant creating foreseeable risk which may injure children: Hahn v Conley (1971) 126 CLR 276; Robertson v Swincer (1989) 52 SASR 356 at 359-360. March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 517.

44

710 [11.110]

Chapter 11 – Negligence

Newsgathering and broadcast/publication activities [11.140] There is some conduct which is peculiar to the media, including newsgathering and broadcast/publication activities. Greater competition between the media involving attempts to “out-scoop” each other and the chase for the elusive “exclusive” in a quest for higher audience share has on occasions seen the media engage in reckless behaviour when covering events. This will include the media “scrum” – competition between reporters and film crews who are solely focused upon the subject of their story and who may, by virtue of that fixation, accidentally injure that person or a bystander who has the misfortune of becoming swamped by them. 45 It will also include media coverage of situations which are already hazardous, including siege and hostage situations, and fire and disaster scenes, which may create additional risk of causing someone personal injury. This reckless behaviour may take a number of forms involving both newsgathering activities and broadcasting or publication activities. 46 It would seem to concern the electronic media more than the print media due to the greater immediacy of delivery in the former case, but interference in dangerous situations by newspaper reporters or photographers is not inconceivable.

Newsgathering activities [11.150] Newsgathering activities which involve the risk of injury to individuals, whether they be emergency officers, victims of the incident (such as persons needing to be rescued or hostages) or third parties, include the media arriving at the scene of an incident before the relevant authorities (thereby, for example, alerting a siege captor to the impending arrival of police), hindering emergency personnel in their activities, and crossing police lines to obtain better vantage points (including flying low over a siege situation in a helicopter). Example

Risenhoover v England [11.160] Risenhoover v England 936 F Supp 392 (USDC 1996) Agents from the Bureau of Alcohol, Tobacco and Firearms conducted a raid on the Branch Davidian Compound near Waco, Texas. Shortly before the Waco raid, local media, who had been tipped off, arrived at the scene and began setting up around the compound in preparation to cover the story. One cameraman became lost and in looking for directions unwittingly told a cult member that the ATF raid was imminent. When Federal agents arrived at the compound they were ambushed by cult members who were waiting for them, resulting in the death of four agents and injury to at least 28 others.

45

See also [8.650] where trespass to person is also canvassed as a possible cause of action in such circumstances.

46

For a general reference of examples of the newsgathering and broadcasting conduct involving risk, see J B Becker, “The First Amendment goes tactical: News media negligence and ongoing criminal incidents” (1995) 15 Loyola of Los Angeles Entertainment Law Journal 625 at 628-659.

[11.160] 711

Australian Media Law Risenhoover v England cont. A US District Court judge dismissed a motion to summarily dismiss the case. He rejected an argument that requiring the media to act responsibly when engaged in newsgathering activities would chill free speech, any more than demanding that any individual citizen act responsibly. Nor would it interfere with normal, run-of-the-mill press investigations. The judge held therefore that the media defendants owed a duty to the plaintiffs not to alert the Davidians to the impending raid.

[11.170] There have been a number of Australian instances of sieges where the media have sought to make contact with the suspect, thereby preventing the police from being able to speak to the suspect on the telephone. These include the Canagai farm siege in 1993 47 and the massacre at Port Arthur, Tasmania in 1996. Reporters are not trained negotiators and by making direct contact with the captor, or questioning his or her sincerity, they may at the least hinder or stalemate police negotiations, or worse, may unwittingly agitate the suspect and prompt him or her to injure a hostage, police, some other innocent third party, or herself or himself. The captor may also be inclined to break off negotiations with government agents in order to talk to the media, particularly if that person has a cause which he or she wishes to be broadcast to the widest possible audience. 48 Again, while the defendant media may allege that any consequential act by a captor amounts to a novus actus interveniens which breaks the chain of causation between the newsgathering activity and the subsequent injury, the captor’s conduct may be the very thing likely to occur consequent upon such media interference. While the policy consideration of the free flow of information is likely to be a powerful weapon in the media defendant’s armoury – it is not in the community’s interest to be denied knowledge of the progress and resolution of such events – such a policy consideration does not amount to a blank cheque for any media conduct, however outrageous, dangerous or foolish. There seems little in freedom of speech to commend media conduct when newsgathering is reckless to the point of endangering the reporter’s and/or other people’s safety. Such conduct is promoted not by the public’s interest in the free flow of information of public interest but by the competition between media organisations for a greater share of the audience. Their position would seem analogous to the 47

48

Attempts at “out-scooping” other media in the coverage of this siege included one television station helicopter hovering above the farmhouse despite a police imposed no-fly zone, creating an additional risk of agitating the captors within. The Cangai siege inspired a suggested revision of the Journalists’ Code of Ethics which included a proposed cl 16 which would have obliged journalists to “never knowingly endanger the life or safety of a person without informed consent”: see N Lucas, “Australian Journalists’ Association section of the Media Entertainment and Arts Alliance – Final Report of the Ethics Review Committee” (1997) 1 Telemedia 30 at 32. However, when the revised code was finally put to the vote of members cl 16 had been omitted. See, for example, Clift v Narragansett Television 688 A 805 (1996) (RI) where a reporter telephoned a man who was threatening to commit suicide and with whom police had been negotiating. She conducted an interview which she told him she would broadcast on Channel 12. During the interview the reporter asked him if he had a message for his wife, whether he was sick and whether he was scared. The man thereupon committed suicide. Police found the television tuned to Channel 12, which had broadcast the interview moments before. In allowing the claim by the man’s widow to proceed, the Supreme Court of Rhode Island relied on medical evidence that the suicide had resulted from an uncontrollable impulse brought about by a delirium or insanity caused by the reporter’s negligence.

712 [11.170]

Chapter 11 – Negligence

case of any other prying member of the community who would undoubtedly owe a duty of care to avoid creating the risk of injury by their unwanted interference in already dangerous situations. In the course of newsgathering, the media routinely comes into contact with persons who may be vulnerable to psychological harm whether through their own involvement in a traumatic incident, their loss of a loved one or the effect of some other distressing influence. 49 In such a case where a special susceptibility is known (or ought to be known) a plaintiff need not show a normal standard of susceptibility as a prerequisite to recovery. 50 Accordingly, conduct such as a “feeding frenzy” harassment of persons considered newsworthy, particularly persons who are known or should be known to be in a vulnerable condition, may expose the media to potential liability in negligence for any harm, particularly recognisable psychiatric illness or psychoneurosis, which that person suffers as a consequence. Example

Galella v Onassis [11.180] Galella v Onassis 353 F Supp 196 (1972) The defendant photographer pursued a prolonged course of harassment of Jacqueline Onassis, the former wife of assassinated president John F Kennedy and sister-in-law of assassinated Senator Robert F Kennedy, and her children, including ambushing them from behind bushes, intruding on them at public and private functions and generally stalking them. Cooper CJ of the United States District Court for the District of New York held the assassinations of Mrs Onassis’s husband and brother-in-law were matters of common knowledge to virtually every citizen, and would certainly have been known to the defendant who “specialised” in her affairs and who photographed her at her brother-inlaw’s funeral. Those events made Mrs Onassis and her children particularly susceptible to the defendant’s erratic behaviour and made his acts even more outrageous and utterly devoid of any sensitivity whatever for his subjects. He was accordingly liable for the distress he had caused them. 51

49

As much is recognised in the revised Journalist’s Code of Ethics which provides in para 11 that: “They shall respect private grief and personal privacy and shall have the right to resist compulsion to intrude on them.” The effect of this clause may be watered down, however, by the “guidance clause” which allows any standard to be overridden where in cases of “substantial advancement of public interest or risk of substantial harm to people”.

50

See Civil Law (Wrongs) Act 2002 (ACT), s 34; Civil Liability Act 2002 (NSW), s 32; Civil Liability Act 1936 (SA), s 33; Civil Liability Act 2002 (Tas), s 34; Wrongs Act 1958 (Vic), s 72; Civil Liability Act 2002 (WA), s 5S. The laws of New York, which governed the case, required a high degree of culpability in the form of “extreme and outrageous conduct” for the purposes of showing the tort of intentional infliction of emotional distress. If this standard was met, then presumably there would have been less difficulty showing the lesser standard of

51

[11.180] 713

Australian Media Law

[11.190] The court thought it was appropriate to balance the defendant’s conduct against the extent to which the plaintiff had voluntarily acceded to a position of public notoriety. Nevertheless, even a public person such as Mrs Onassis was held to be entitled to succeed in the circumstances. This might indicate that where the plaintiff is essentially a private person who becomes the subject of publicity purely because of an involuntary connection with events considered to be of widespread interest, such a person might reasonably be expected to be less capable of coping with the sudden publicity and consequently be more vulnerable to mental injury than one who courts prominence. 52

Broadcast activities [11.200] Immediacy in the coverage of news by the use of satellites and remote camera crews has created new risks of their own: news can go to air as it happens without the broadcaster having the opportunity to assert some editorial control to remove material that has the potential to endanger personal safety. This information may include details of the movement, location and intentions of police or persons at risk, the status of negotiations and the police attitude to such negotiations and any operational plans. A danger that may arise in such cases is the possibility that, for example, a captor in a siege situation is among the audience tuning in to the broadcast. 53 Unlike conduct used in newsgathering, broadcasting activities can only involve media defendants: it is not possible to simply substitute another member of the community into the position of the media. In such a case free speech and the free flow of information are stronger elements when deciding whether a duty to take reasonable care is owed. Ultimately it may depend upon the content of the broadcast. Broadcast of footage which gives the suspect a different vantage point of, for example, police tactics, while of public interest, is not in the public interest. There should not, therefore, be any room for a a freedom of speech justification for the broadcast. On the other hand, if the broadcast comprises, for example, pictures taken from a helicopter hovering over the scene of a siege, the broadcasting aspect is unlikely to add anything to the risk created by the newsgathering activity. Moreover, the broadcast of an official press conference, which is seen or heard by the perpetrator at the scene, involves no more than keeping the public informed and should not give rise to a duty of care. negligence. The outcry after the death of Princess Diana and reflections on her life of being hounded by the press inspired California to enact anti-paparazzi laws: see generally C Calvert and R Richards, “The irony of news coverage: How the media harm their own First Amendment rights” (2002) 24 Hastings Comm & Ent LJ 215. 52

Cf GS v News Ltd (1998) Aust Torts Reports 81-466 (application for action to be struck out was dismissed where the witness at the Medical Tribunal hearing alleged psychological harm resulting from being chased in the streets outside the Tribunal by news crews seeking to obtain photographs and videotape images of her, and from subsequent publication of those images).

53

As in the case of the Columbine High School shooting: while the gunmen roamed through the school, televisions inside the building were broadcasting live interviews with students who had escaped which revealed the whereabouts of other students still trapped inside.

714 [11.190]

Chapter 11 – Negligence

Content resulting in personal injury “Identity cases” [11.210] It has been noted that a duty of care will not be recognised where it would encroach on another cause of action. Thus, where a media publication reflects on reputation the appropriate action is for defamation even where the plaintiff is alleging that the publication caused him or her to suffer, for example, psychiatric illness. There may be cases, however, where personal injury is suffered by the plaintiff as a result of publication of a story which has no effect on the plaintiff’s reputation. An example may be those cases which might loosely be described as “identity cases”. In such cases the media is in possession of information, such as the identity of a person, which if released may result in the plaintiff suffering physical injury or death, or psychiatric injury from his or her fear of physical injury or death. This might include, for example, police informants or witnesses or victims of violent crimes where there is an ongoing threat to their safety. Inasmuch as specific personal details, including names and/or addresses, may in many cases not add any value to the story, or where the release of such details involves particular risk to the plaintiff, any resort to notions of freedom of speech or the public interest in a free flow of information may not prevent recognition of a duty of care and liability. 54 Example

Hyde v City of Columbia [11.220] Hyde v City of Columbia 637 SW 2d 251 (1982) cert denied 459 US 1226 (1983) A young woman was abducted and kidnapped, and on her escape provided police with a statement which included a description of her assailant. The police released her name and address to the media and these were published in two local newspapers, even though the assailant was still at large. The assailant, apparently after reading the relevant newspapers, returned to the plaintiff’s address and terrorised her on a number of occasions. The plaintiff brought an action against the newspapers for her emotional distress from her fear for her physical safety. The Missouri Court of Appeal held that the publication of the name and address of an abduction witness who could identify an assailant still at large was a matter of trivial public concern but carried with it a high probability of risk to the victim. The social value of the right of an individual to personal security outweighed the social value of the public’s right to know in such a case: to delete the name and address of the abduction

54

Hyde v City of Columbia 637 SW 2d 251 (Mo CA 1982) at 269-271 ; cf Times Mirror Co v Superior Court of San Diego County 198 Cal App 3d 1420 (1988) which treated a similar case as an invasion of privacy.

[11.220] 715

Australian Media Law Hyde v City of Columbia cont. victim from the publication would have impaired no significant news function nor public opinion in the reportage of crime and apprehension of criminals.

[11.230] Australia’s first case recognising that the media may owe a duty of care to avoid causing personal harm arose in such a case. In Doe v Australian Broadcasting Corporation 55 the plaintiff was raped by her husband and suffered post traumatic stress disorder as a consequence. She underwent treatment and made good progress, her recovery being aided by her husband’s subsequent conviction and sentencing to jail. However, the afternoon that the husband’s case was finalised ABC radio, in breach of the statutory prohibition against publication of the particulars of victims of sexual offences, on two occasions broadcast reports which named the plaintiff, and provided other identifying information. Following the broadcasts the plaintiff decompensated, suffering a response which mirrored that which followed the rape. Significantly, Hampel J of the Victorian County Court held that the plaintiff was not limited to a claim for damages for defamation, if anything, because the plaintiff was not complaining that she had suffered a loss of reputation following publication of discreditable information about her. Instead, she was suing for the loss of the right not to have her identity published, and for the harm flowing from that publication. Accordingly, no issue of incoherence in the law caused by an encroachment upon the balance achieved by defamation laws was present. 56 Her Honour then cited Tame v New South Wales 57 as emphasising reasonableness when defining the ambit of the defendant’s duty of care. This required an evaluation of the nature of the relationship between the parties, the nature of the activity engaged in by the alleged tortfeasor and the nature of the harm suffered. Here there was a relationship between the defendants and the plaintiff other than that of mere broadcaster and a member of the public. The relationship here was one between persons under an obligation not to publish information identifying a victim of a sexual assault, and a victim entitled to the protection from publication of identifying information conferred on them by statute. The statutory prohibition was adjudged to place a higher obligation on the broadcaster, and the sub-editor and reporter in this case, not to publish information in breach of the prohibition than might exist with a private citizen who is not in the business of broadcasting and does not have the capacity to spread the information widely. 58 Further, the ABC was a national broadcaster engaged in the activity of publishing regular daily news broadcasts. A regular part of that activity was the reporting of court proceedings, which frequently involved cases concerning sexual offences. A statutory prohibition on publishing information about victims of sexual offences had existing in Victoria since at least 1929. This was neither an obscure law nor one of rare operation. The publication had occurred as a 55 56

Doe v Australian Broadcasting Corporation [2007] VCC 281. Doe v Australian Broadcasting Corporation [2007] VCC 281 at [61]-[65].

57 58

Tame v New South Wales (2002) 211 CLR 317. Doe v Australian Broadcasting Corporation [2007] VCC 281 at [92].

716 [11.230]

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result of an inexcusable failure to comply with the statute. Accordingly a duty of care was owed by the defendants, and the plaintiff’s injuries had been caused by a clear breach of that duty. 59 The statutory prohibition was a significant factor in the finding of a duty of care in that case. Indeed, Hampel J also held that breach of statutory duty was an alternative basis for upholding the plaintiff’s claim for compensation. It remains to be seen whether Australian courts will be prepared in other “identity cases” not covered by a statutory prohibition but which nevertheless involve the media acquiring information which if published could result in a particular person suffering injury. Such cases might include, for example, disclosure of the identity of undercover police operatives or police informants. Naturally where a court case was in progress involving such persons their identities and identifying particulars may be subject to a non-publication (suppression) order. 60 As in Doe v ABC there may be a strong case for recognising a duty of care in such circumstances. Otherwise, it might be argued that recognition of a duty of care in such cases would encroach upon the established domain of the action for breach of confidentiality. However, this equitable cause of action, which was originally designed to protect trade secrets from disclosure but which has been recently extended to protect personal secrets from disclosure, is not well suited to provide reparation for personal injury and would require even further development. A finding of a duty of care, on the other hand, may be appropriate due to the high probability of risk to the plaintiff, as in Hyde v City of Columbia, the vulnerability of the plaintiff and the defendant’s control of the information and, perhaps, knowledge of the risk.

False stories Errors in reporting [11.240] It may also be possible to conceive of a case in which a plaintiff suffers personal injuries as a result of publication of a false story that is unrelated to the plaintiff’s reputation. Suppose, for example, that a newspaper erroneously reports that the plaintiff’s husband and three children have been killed in a motor vehicle accident in another State. The newspaper is unable to say where it had received the information, which did not originate from any recognised news service, and does not check the authenticity of the report before publishing it. The plaintiff alleges that as a result of reading the report she suffered compensable psychiatric injuries. 61 Clearly defamation is not an issue in such a case. If the plaintiff were to have a cause of action, it would be in negligence. The claim would seem to be analogous to the case of negligent advice resulting in psychiatric injury, which has been regarded as compensable. 62 The circle of persons who might actually suffer the necessary damage would likely be small. 63 There would not seem to be concerns related to a fettering of freedom of 59

Doe v Australian Broadcasting Corporation [2007] VCC 281 at [95]-[96].

60 61 62 63

See [5.150]. Cf Guay v Sun Publishing Co [1953] 4 DLR 577. Barnes v Commonwealth (1937) 37 SR (NSW) 511. McLoughlin v O’Brian [1983] AC 410 at 433 per Lord Bridge; MIM Ltd v Pusey (1971) 125 CLR 383 at 403 per Windeyer J; Hevican v Ruane [1991] 3 All ER 65 at 68.

[11.240] 717

Australian Media Law

speech. There might be concerns of threatening a free flow of information if the duty were cast in terms of a duty to “get it right”. 64 The necessary commitment to achieve this objective, even if it were possible in all cases, may be simply unrealistic in the context of tight deadlines. However, there may be less objection if the duty were recognised as a duty to take care in the circumstances, that is use reasonable care in compiling the story. Such a duty would not be breached if, even after the exercise of reasonable care, the story published is later discovered to be untrue. It would be breached, however, if the story were published as a result of sloppy journalism in circumstances in which a few telephone calls would have discovered the truth. 65 Mischief making [11.250] The media might also be used as a means for deliberate mischief making. This is particularly so in the age of technology that enables any individual to have the means to publish to the world. For example, in September 2011 a man who worked as a tutor at several schools in Veracruz, Mexico sent repeated messages to his Twitter followers that gunmen were kidnapping children from schools and that they had “mowed down six kids”. These rumours were also spread by a former teacher turned radio commentator. At the time Veracruz had experience several weeks of gun battles involving drug traffickers. However, no kidnappings such as those alleged in the tweets had occurred and the shootings had not involved children. Nevertheless, the tweets sparked chaos as parents rushed to schools to save their children, resulting in 26 car accidents. The messages also caused such panic that emergency numbers collapsed under the weight of callers, denying service for real emergencies. 66 A practical joke resulting in psychiatric injury led to the formulation in Wilkinson v Downton 67 of the tort of intentional infliction of harm. While this tort has spawned substantial jurisprudence in the United States it has less of a track record in Australia. Wilkinson, being based on intention, was an attempt to evade the rejection of claims for psychiatric injury based on negligence at the time at the turn of the 20th century. Its reliance on intention, however, was dubious since the defendant in fact only intended to cause the plaintiff to suffer a fright rather than any serious injury. Now that claims for psychiatric injury based on negligence have been accepted there is no need to rely on intention when such practical joke scenarios are more readily accommodated by the law of negligence. 68 Whether an act such as using the media for mischief making is done intentionally or negligently, the important question will be whether the consequences of the conduct were reasonably foreseeable and are such as should have been averted or avoided. 69 64

Cf Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32 at 43.

65 66

67

Cf the dissenting judges Rinfred CJC and Cartwright J in Guay v Sun Publishing Co [1953] 4 DLR 577. “Twitter terrorists’ face 30 years in jail for inciting mass panic”, Sydney Morning Herald (5 September 2011), at http://www.smh.com.au/technology/technology-news/twitter-terrorists-face-30-years-in-jail-for-inciting-masspanic-20110905-1jswu.html. Wilkinson v Downton [1897] 2 QB 57.

68 69

Wainwright v Home Office [2004] 2 AC 406 at [41] per Lord Hoffmann. Carrier v Bonham [2002] 1 Qd R 474 at 484.

718 [11.250]

Chapter 11 – Negligence

“Normal person” responses [11.260] In Guay v Sun Publishing Co, 70 Estey J suggested that an emanation of the test of normal susceptibility is that a “normal person” would know that errors and mistakes in gathering and publishing news are common, and might be expected to be wary of errors in the original story and, if concerned, make inquiry to verify it. A good example of this suggestion in practice might be the panic inspired by the radio broadcast of Orson Welles’ Mercury Theatre Company’s Production of War of the Worlds, which went to air on 30 October 1938. The play depicted an invasion from Mars featuring realistic news bulletins and utilising the names of true people and places, and resulted in widespread panic. Reactions included a swamping of switchboards of the radio station and of police and other authorities, mass exodus from the areas depicted under attack and the holding of church services for “the end of the world”. 71 At the time radio, and the imagery that may be created by the spoken word, was a powerful tool for the dissemination of news and information, including manufactured news and information. 72 In an age when television and vision are the primary means of instantaneous communication of news, it could be said that a person of normal susceptibilities might have the natural impulse to disbelieve distressing news reports, such as those in the play, and to commence inquiry to determine their accuracy, for example, by the simple precaution of switching channels. It would be difficult to believe that a story like the end of the world would not have television coverage on more than one channel. Nevertheless, even today this may not be an adequate response in all cases. Financial constraints mean that Australian news providers are unable to have their own correspondents positioned in all places around the globe, and are therefore reliant upon news services for coverage of many overseas and sometimes even local events. Switching stations with respect to such coverage is likely to simply find the same report from the same source. When that source acts on erroneous or limited and misleading information, and there is an inability or simple failure to verify the story from other sources, everybody gets it wrong and even a person of “normal susceptibility” may be excused for suffering psychological consequences. This may be illustrated by an alleged outbreak of the Black Death Plague in Surat, India in September 1994 as reported by an international news agency which had an agency nearby. The report asserted that many people were dying and up to 400,000 locals were fleeing the area. The report was picked up by media organisations around the world and led to some countries closing their borders with India, other countries boycotting Indian goods, flights from India to various countries being made subject to health checks or banned outright and tourists cancelling holidays in India. In fact, there is controversy concerning whether there was any kind of outbreak and even then whether it was of Plague. Certainly no exodus of people from 70 71

72

Guay v Sun Publishing Co [1953] 4 DLR 577 at 585-587. Ten years later the actor John Houseman, co-founder of the Mercury Theatre, noted that of the actions brought against the radio station and the theatre company for “damages, injuries, miscarriages and distresses of various kinds” which sought damages totalling $750,000, “none were substantiated or legally proved”: J Houseman, “The men from Mars”, Harpers Magazine, Vol 197 (December 1948), p 82. The broadcast also cannot be safely separated from its historical context, the broadcast taking place within days of the Munich crisis and the attendant world anxiety, and being at a time when radio was the primary medium for news and entertainment: see also Houseman Harpers Magazine, Vol 197, p 79.

[11.260] 719

Australian Media Law

Surat as portrayed ever occurred. Instead, the story had snowballed from initially misleading information, likely from a single reporter at the scene, and fuelled by inflammatory writing and a failure to check sources of information. 73 A natural question that arises in such cases regards who should be the defendant: the local broadcaster whose broadcast caused the damage or, perhaps more appropriately, the source agency who makes the original error, or both. 74 A similar situation exists where there is only pool coverage of an event (that is where one media operator is nominated by the authorities as the pool source and whose footage is utilised by other media operators) or where one station has the exclusive rights to cover an event, including sporting events, and supplies footage to other stations.

Content deemed dangerous [11.270] The preceding cases involve content that is of concern to only a relatively small number of persons. In other cases the media may be involved in activities which have the potential of resulting in personal injuries being suffered by large numbers of people. In such cases, an additional hurdle to recognition of a duty of care may be presented by concerns of the prospect of indeterminate liability. Establishing that the content was a cause of the personal injury may present another difficulty.

“Instruction” cases [11.280] For example, there may be a risk of personal injury where the media publishes instructions concerning how individuals may engage in particular activities, especially if it is argued that the publication has the primary design of viewers, listeners or readers following the instructions to achieve the promised effect. 75 It might be argued that negligent instructions in a media context should not be distinguished from those in other interpersonal settings such as communications between an air traffic controller and pilot or instructions provided with products, and that recovery should accordingly follow. 76 Further, in the case of instructions targeted at an audience of children, some analogy might be drawn to the duty owed in the case of activities that are known, or should be known, to be attractive and enticing to 73

See, for example, C Panjabi, “Media forum: ’The media, the industry and traveller security’”, PATA Annual Conference, Bangkok, Thailand, 23 April 1996. This prompted some to call it “plague by media”: Harsaran Bir Kaur Pandey, “Media in the time of plague”, http://www.searo.who.int/LinkFiles/Public_Information_&_Events_ vol1-4_media.pdf.

74

Even if the local broadcaster is found to have owed a duty of care in such circumstances, it may be difficult to show a failure to take reasonable care on its part, depending on the circumstances. See, for example, the facts in Walt Disney Productions Inc v Shannon 276 SE 2d 580 (Ga 1981) (participant on the Mickey Mouse Club demonstrated to the audience how to reproduce the sound of a tyre coming off a car by putting a BB pellet inside a balloon – an 11 year old was partially blinded when attempting to create the sound).

75

76

J L Diamond and J L Primm, “Rediscovering traditional tort typologies to determine media liability for physical injuries: From the Mickey Mouse Club to Hustler Magazine” (1988) 10 Hastings Communications and Entertainment Law Journal 969 at 973-983; cf Australian cases upholding a duty owed by an air traffic controller to pilots to take reasonable care and give such instructions and advice as may be necessary to promote safety within their area of responsibility: Nichols v Simmonds and Royal Aero Club [1975] WAR 1; Skyways Pty Ltd v Commonwealth (1984) 57 ALR 657 (NSW SC).

720 [11.270]

Chapter 11 – Negligence

children. 77 Certainly, a court considering whether to recognise a duty of care in such a case should not ignore the effect presented by the widespread audience, perhaps in the thousands or even millions, that a television or radio program or a newspaper or magazine may have, and the potential for an oppressive flood of litigation. 78 But it may be argued that only a proportion of an audience would be expected to actually act on the instructions as opposed to treating the publication merely as entertainment, and that in any case recognition of duty in cases of mass production strengthens the case for liability. However, the concern over the potential size of the potential liability may be particularly accentuated in the case of television programs which are repeated on numerous occasions: is a broadcaster to face possible liability to a fresh audience even 5, 10 or more years after the program was originally produced and broadcast? It has been said that there would also be a distinct chilling effect on freedom of speech 79 if, for example, every author were to be exposed to liability for writing on a topic that might result in physical injury, such as cutting trees or keeping bees. 80

“Mimicry” cases [11.290] A related circumstance involves cases where the media demonstrates a model for behaviour, but provides no instruction or expectation of any kind that the behaviour be mimicked. This would embrace cases where an activity is shown in a publication and a reader or viewer takes it upon herself or himself to copy what she or he has seen. It would seem difficult to construct a liability against the media in such circumstances. In the United States, a Rhode Island court rejected a claim by relatives of a 14 year old boy who was found hanging dead in front of a television set having apparently tried to imitate a stunt performed on Johnny Carson’s Tonight Show in which a stuntman showed how to stage a realistic-looking hanging. 81 Similarly, a Federal Court dismissed the claim against a magazine for publication 77

78

Cf Glasgow Corporation v Taylor [1922] 1 AC 44 (occupier’s duty to children attracted to trespass by some allurement); Ellis v Trowen Frozen Foods 264 Cal App 2d 499 (1968) (street vendor liable when children who were attracted to his product carelessly ran into traffic). See also N Miller, “Media liability for injuries that result from television broadcasts to immature audiences” (1985) 22 San Diego Law Review 377 at 385 where the analogy is also drawn to liability where parents or neighbours entrust a child with a potentially dangerous article, and where such an article is carelessly left where a child could find it. See Lewin v McCreight 655 F Supp 282 (1987) where in addition to the potential liability, the court relied on the potential expense to publishers in needing to verify contents and the interest in free access to ideas as negativing a duty. See also Jones v JB Lippincott Co 694 F Supp 1216 (1988), which held that a publisher had no duty with respect to the content of books.

79

Cf Rice v Paladin Enterprises 940 F Supp 836 (D Md 1996) (while comprehensive and detailed “hitman’s manual” held not to incite imminent violence, it was held to aid and abet a triple murder that followed its instructions). But see, for example, J Wellstood, “Tort liability of the media” (2000) 15 St John’s JL Comm 187 at 211-216.

80

Walter v Bauer 439 NYS 2d 821 (1981) at 822-823 (publisher of science textbook not liable when student injured his eye while performing an experiment out of the book). See also Winter v GP Putnam’s Sons 938 F 2d 1033 (9th Cir 1991) (plaintiffs suffered food poisoning after relying on defendant’s cookbook – no liability due to First Amendment); Birmingham v Fodor’s Travel Publications Inc 833 P 2d 70 (Haw 1992) (defendant not liable when plaintiff injured body surfing as featured in defendant’s travel guide). In Jones v JB Lippincott Co 694 F Supp 1216 (1988), it was suggested that the liability of authors was “not firmly defined” and depended on an assessment of four factors: the nature of the publication, the intended audience, causation in fact and foreseeability of damage: at 1216.

81

De Filippo v NBC 446 A 2d 1036 (RI 1982).

[11.290] 721

Australian Media Law

of an article describing the practice of auto-erotic asphyxia whereby the practitioner rigs up a noose and cuts off his air supply at the height of sexual excitement during masturbation, which was apparently copied by a 17 year old boy who was subsequently found hanging dead. 82 In both cases it was held that since the broadcasts did not incite imitation, indeed in both cases there were express warnings against imitation, any liability would be an unacceptable encroachment upon the defendants’ freedom of speech. Denial of a duty of care may therefore be based on freedom of the press, including free publication of information or education, as well as the potential for a large number of claims if a duty were to be owed to all viewers or readers seeing the publication. Even if a duty of care were owed, 83 the customary warning for viewers or readers not to attempt to copy the activity ought to be sufficient to discharge the relevant standard of care. 84 Furthermore, any decision by a viewer or reader to ignore explicit warnings against imitation is likely to be seen as breaking the chain of causation between the injury and the publication, or be viewed as contributory negligence or volens to the risk such as to provide a complete defence. Causation may be a particular problem where the plaintiff is found to have been predisposed to engaging in the kind of activities which led to the injury.

“Inspiration” cases [11.300] Perhaps more problematic are cases brought by third party plaintiffs injured by readers or viewers who are inspired by what they have seen in the media. 85 There is a growing body of research which purports to demonstrate a causative link between violence in films, television, video games and music lyrics and violent conduct particularly on the part of young people. 86 Indeed the American Academy of Pediatrics has ventured that “the debate 82

83

84 85

86

Herceg v Hustler 814 F 2d 1017 (5th Cir 1987). In this case, the court distinguished the threat posed by a magazine article from the crowd violence in Brandenburg and hinted that it was all but impossible for printed material to attain the level of incitement. See, for example, Sakon v Pepsico Inc 553 So 2d 163 (Fla 1989) (duty was upheld where a 14 year old jumped off a cliff on his bicycle in imitation of a Mountain Dew soft drink commercial on the ground that commercial speech is of “low” constitutional value and that the First Amendment did not protect false advertising). See, for example, Way v Boy Scouts of America 856 SW 2d 230 (Tex App 1993). Olivia N v NBC 126 Cal App 3d 488 (1981) (9 year old girl raped by several minors using a method they had seen in a film they had watched on NBC – court found no incitement); Zamora v Columbia Broadcasting System 480 F Supp 199 (1979) (murder of 83 year old neighbour by teenage boy who alleged he had become “desensitised to violent behaviour” as a result of television networks broadcasting violent programs – court found no incitement); Yakubowicz v Paramount Pictures Corp 536 NE 2d 1067 (Mass 1989) (fatal stabbing of 16 year old by attacker who had just seen the film The Warriors, which contained many scenes of gang violence, and who even uttered one of the lines from the film – court found no incitement); Miller v Warner Bros 492 SE 2d 353 (1997); Byers v Edmondson 826 So 2d 551 (2002) (couple emulating murderous crime spree of the characters in film Natural Born Killers – in both cases courts found no incitement). See also Brill (1994) 94 Columbia LR 984. See, for example, F Molitor and K W Hirsch, “Children’s toleration of real-life aggression after exposure to media violence: A replication of the Drabman and Thomas studies” (1994) 24 Child Study J 191; American Psychological Association, Violence on TV: A Social Issue (1985); Surgeon General’s Scientific Advisory Committee on Television and Social Behaviour, Television and Growing Up: The Impact of Televised Violence (1972); Federal Trade Commission, Marketing Violent Entertainment to Children: A Review of Self-Regulation and Industry Practices in the Motion Picture, Music Recording & Electronic Game Industries (2000),

722 [11.300]

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should be over”. 87 Social theories supporting a link between, for example, violent video games and violent conduct 88 include “operant conditioning” (violent behaviour reinforced by reward), 89 “stimulus addiction” (craving more stimulation by increased levels of violence), 90 “problem solving approaches” (best way of solving a problem or alleviating frustration is the use of violence to eliminate it) and “desensitisation” (repeated simulation of violence overcoming natural aversion to injuring other humans). 91 Studies suggest that playing violent video games may induce aggressive behaviour “via the cognitive route (by priming aggressive thoughts), the affective route (by increasing state hostility and anger), the arousal route (by increasing the individual’s excitement),” or a combination of all three. 92 In the United States such cases have been dismissed on the basis that in the absence of an incitement to imitate, the media defendant’s freedom of speech should prevail, 93 and on the basis that the right of the public to view programming, which was seen as an element of freedom of speech, should not be inhibited by members of the public who have particular sensitivity to the content of that programming. 94 It has also been held that any injury or death caused by someone inspired by what was depicted would not be reasonably foreseeable by the media defendant. 95 However, as video game graphics become more realistic and studies showing a causative link become more compelling, a case may be made for liability in negligence, at least for so called “modus operandi” games – simulations that train a player to create and develop a special skill set such as a first person shooter. 96

http://www.ftc.gov/reports/violence/vioreport.pdf; D Sacks, “Constitutionalized Negligence” (2011-12) 89 Wash UL Rev 1065 at 1069-1079. 87 88

American Academy of Pediatrics, “Policy Statement-Media Violence”, (2009) 124 Pediatrics 1495 at 1495-96. See T C Campbell, “Did video games train the school shooters to kill?” (2001) 84 Marq L Rev 811 at 818-822.

89

S Whittier, “School shootings: Are video game manufacturers doomed to tort liability?” (2000) 17 Whittier Ent & Sports Law 11 at 14. R Ausness, “The application of product liability principles to publishers of violent or sexually explicit material” (2000) 52 Fla L Rev 603 at 603-606.

90 91

92 93

94 95

96

S Whittier, “School shootings: Are video game manufacturers doomed to tort liability?” (2000) 17 Whittier Ent & Sports Law 11 at 13-14; V Strasburger, B Wilson and A Jordan, Children, Adolescents, And The Media 175-78 (2d ed. 2009). P Arriaga et al, “Violent Computer Games and Their Effects on State Hostility and Physiological Arousal” (2006) 32 Aggressive Behavior 146 at 151. Olivia N v NBC 126 Cal App 3d 488 (Cal CA 1981); Sanders v Acclaim Entertainment, Inc 188 F Supp 2d 1264 (D Colo 2002) (Columbine High School shooting of teacher among others including students allegedly inspired by the film The Basketball Diaries and video games including Mortal Kombat and Doom). The incitement to violence standard in the United States has been described as “a solid First Amendment bulwark against tort liability for the media” in that country: see C Calvert, “Media liability for violent conduct: One year later” (2003) 23 Loyola LA Ent L Rev 247 at 251-252. Zamora v Columbia Broadcasting System 480 F Supp 199 (SD Fla 1979). See, for example, Watters v TSR Inc 904 F 2d 378 (1990) (Dungeons and Dragons player committing suicide); James v Meow Media Inc 90 F Supp 2d 798 (WD Ky 2000) (triple killing at school allegedly also inspired by the film The Basketball Diaries and “first person shooter” video games like Doom and Quake); Sanders v Acclaim Entertainment, Inc 188 F Supp 2d 1264 (D Colo 2002). T Reeves, “Tort Liability for Manufacturers of Violent Video Games: A Situational Discussion of the Causation Calamity” (2009) 60 Alabama Law Review 519.

[11.300] 723

Australian Media Law

“Exhortation” cases [11.310] A relatively recent phenomenon is the advent of the media being used as a means of encouraging violence against third parties. For example, there have been several cases involving police officers being shot by young males who were, or had been, listening to song lyrics that explicitly encourage listeners to kill police. 97 Other cases have involved wrongful death claims by relatives of youths who have killed themselves after listening to song lyrics that expressly encouraged suicide. 98 Nevertheless, these claims have all been dismissed on the basis that in the circumstances there was no incitement of imminent violence (sometimes justified by comparing the low number of violent incidents with the large number of sales of the song). The United States Supreme Court has held that in order to amount to an intention to incite, the statement must be directed to a specific person or group of persons. Marketing to a nationwide demographic group could not yield the necessary imminence. 99 The courts have also emphasised that defendants should not be held responsible for such “irrational and illegal acts” and the profound adverse effect on creativity that would result. Indeed, it has been said that it is precisely this kind of “abstract advocacy” that the First Amendment standard seeks to protect. 100 In the absence of anything akin to this First Amendment jurisprudence and the “incite imminent violence” standard, it might be queried whether such a permissive interpretation of free speech would or should be adopted in Australia. Indeterminate liability and proof of causation would, however, be important issues to be dealt with.

“On-air ambush” cases [11.320] In contrast to the preceding cases, injury to third parties has been held to be readily foreseeable in cases where the media program deliberately provokes shock and conflict. The producers of the Jenny Jones talk show were found liable by a jury and ordered to pay $29.3 million in damages when a guest, who had been lured on air to meet his “secret lover”, was introduced to a homosexual male whom he later murdered as a result of his humiliation on the show. 101 However, on appeal the case was dismissed by a 2-1 majority of the Michigan Court of Appeals. 102 The majority held that the producers owed no duty as a matter of law to protect someone in the position of the deceased guest from the intentional criminal acts of a third party, particularly since they occurred three days after the taping of the show. While it was acknowledged that the producers’ actions in creating and producing this episode may be regarded by many as “the epitome of bad taste and sensationalism”, such 97 98

99

100 101

102

See, for example, Davidson v Time Warner 25 Med L Rptr 1705 (SD Tex 1997). See, for example, the series of cases involving teenagers listening at length to Ozzy Osbourne songs like Suicide Solution which advocate suicide: McCollum v CBS Inc 249 Cal Rptr 187 (1988); and the combined Waller v Osbourne and Hamilton v Osbourne 958 F 2d 1084 (11th Cir 1992). Davidson v Time Warner 25 Med L Rptr 1705 (SD Tex 1997). Cf Braun v Soldier of Fortune 968 F 2d 1110 (11th Cir 1992) where the advertisement on its face made it apparent that there was substantial risk of harm to the public. Davidson v Time Warner 25 Med L Rptr 1705 (SD Tex 1997). In the wake of the verdict, United States talk shows began taking defensive measures, including screening of guests and counselling after their appearances: see the discussion in J Schlessel, “The deep pocket dilemma: Setting the parameters of talk show liability” (2002) 20 Cardozo Arts & Ent Law 461. Graves v Warner Bros 656 NW 2d 195 (2002).

724 [11.310]

Chapter 11 – Negligence

actions were considered insufficient to impute the requisite relationship between the parties that would give rise to a legally cognisable duty. In their opinion the only duty was limited to responding to situations that occurred on the premises and posed a risk of imminent and foreseeable harm. Accordingly, even if a duty had been owed, it had ended when both men left the show. By contrast, the dissenting judge emphasised the producers’ “deceit, sensationalism, and outrageous behavior (sic)” in actively creating a situation in which a criminal act resulted. An additional factor which was of relevance was the producers’ prior knowledge of the offender’s psychological instability and violent inclinations. It is likely that an Australian court would similarly find that such a case fell outside the temporal scope of any duty that the producers might be seen as owing its guests. However, in another context, it has been held that a duty may be owed to take steps to protect a person from the criminal acts of third parties. 103 If a guest was injured in circumstances more physically proximate, perhaps during the on-air ambush itself, whether in a studio or elsewhere in a situation actively created by the producers of a talk show, current affairs program or other form of media, it may be possible to argue that a duty of care ought to be recognised, particularly where the unsuspecting guest is seen as a vulnerable party and the producers have prior knowledge of the violent propensity of the perpetrator.

Economic loss [11.330] In Sattin v Nationwide News Pty Ltd it was acknowledged that negligence may have a role to play in relation to mass communications in “Hedley Byrne situations”, 104 that is, cases of pure economic loss resulting from negligent misstatement. It has been held that in view of the potential of limitless liability that may result from such statements, limitation was necessary in the form of an assumption of responsibility on the part of the defendant statement maker and a reasonable reliance on the part of the plaintiff. 105 In Australia, where pure economic loss suffered is the result of a negligent misstatement that adversely affects reputation, the plaintiff’s action should be in defamation rather than negligence. 106 In any event, an action for negligent misstatement would seem to be difficult to sustain.

103 104

Modbury Triangle v ANZIL (2000) 205 CLR 254. Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32 at 43.

105

Hedley Byrne & Co v Heller & Partners [1964] AC 465; Shaddock v Parramatta City Council (1981) 150 CLR 225. Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32; Norris v Gittos [2011] WASC 295; cf Spring v Guardian Assurance Plc [1995] 2 AC 296.

106

[11.330] 725

Australian Media Law

Example

Sun Earth Homes Pty Ltd v Australian Broadcasting Corporation [11.340] Sun Earth Homes Pty Ltd v Australian Broadcasting Corporation (1993) 45 FCR 265 The television consumer affairs program The Investigators featured a story in which complaints were made about the defendant’s product. For some reason, which the court found was not malicious, an interview with a representative of the defendant transposed the answer to a question on one topic to a question on a different topic. The effect of the transposition was to convey a misleading impression of the facts, which was to the detriment of the plaintiff. A number of causes of action were pleaded, including defamation, injurious falsehood and negligent misrepresentation. Wilcox J of the Federal Court of Australia noted that in relation to negligent misstatement, the plaintiffs did not claim to suffer damage by reason of the publication of the material to themselves, but by reason of its dissemination to others. Accordingly there was a divergence between the persons to whom the information was supplied and those to whom the alleged duty was owed. Such a situation was not sufficient to establish an assumption of responsibility for the broadcast to the public on the part of the defendant broadcaster and thus could not give rise to liability in damages. Indeed, nothing was gained by adding the cause of action in negligence and other claims to the action in defamation.

[11.350] It will be a rare case in which a publisher will be found to have assumed responsibility for statements which are published, due to at least three policy considerations: 1.

it is simply impossible to attain perfection in the publishing business;

2.

the potential number of persons to whom a publication may become available is without limit; and

3.

the consequent deterrent effect on the dissemination of information. 107

These factors are reflected by the absence of any public expectation that the media assume responsibility for the accuracy of, or exercise any skill or judgment concerning, the content of its publications. 108 Certainly a publisher does not hold itself out as vouching for the accuracy or reliability of news reports and advertisements. 109 Accordingly, a newspaper or broadcaster would not be liable for economic loss resulting from reliance on share listings, financial news

107

First Equity Corporation of Florida v Standard & Poor’s Corporation 670 F Supp 115 at 117 (SD NY 1987) per Goettel J.

108

Fleming v Securities Commission [1995] 2 NZLR 514 at 531-532 per Richardson J (with whom Casey, Gault and Ellis JJ concurred). Fleming v Securities Commission [1995] 2 NZLR 514 at 532.

109

726 [11.340]

Chapter 11 – Negligence

or advice or opinions by “financial experts,” 110 or advertisements that it might publish. 111 This position would be assisted by a disclaimer in which no responsibility is accepted for information published, 112 disclaimers being a factor to take into account, although not necessarily conclusive, when deciding whether there has been an assumption of responsibility and reasonable reliance.

110

First Equity Corporation of Florida v Standard & Poor’s Corporation 670 F Supp 115 (SD NY 1987); Jaillet v Cashman 189 NYS 743 (NY SC 1921).

111 112

Fleming v Securities Commission [1995] 2 NZLR 514 (NZ CA). Fleming v Securities Commission [1995] 2 NZLR 514 at 531-532.

[11.350] 727

Copyright

12

[12.10] OVERVIEW ............................................................................................... 730 [12.20] THE NATURE OF COPYRIGHT PROTECTION ...................................... 730 [12.20] Scope of protection ............................................................................... 730 [12.40] Formal considerations ........................................................................... 731 [12.50] Connecting factors and overseas content ........................................... 732 [12.60] SUBSISTENCE OF COPYRIGHT ............................................................. 732 [12.70] Works ...................................................................................................... 732 [12.70] [12.90] [12.100]

Protected Categories ......................................................... No requirement of merit ................................................... Originality ......................................................................... [12.120] Subject Matter other than Works ....................................................... [12.120] Protected categories ..........................................................

732 733 734 736 736

[12.130] DURATION OF COPYRIGHT ............................................................... [12.130] Works .................................................................................................... [12.140] Subject matter other than works ....................................................... [12.150] Expiration of copyright and the public domain ............................... [12.160] AUTHORSHIP .......................................................................................

737 737 737 737 738

[12.190] MORAL RIGHTS ................................................................................... 739 [12.200] OWNERSHIP ......................................................................................... [12.200] Rights of the owner ............................................................................. [12.210] First ownership .................................................................................... [12.220] Employees and contractors ................................................................ [12.230] EXPLOITATION OF COPYRIGHT MATERIAL ....................................... [12.230] Assignment and licensing ................................................................... [12.240] Creative commons .............................................................................. [12.250] INFRINGEMENT OF COPYRIGHT ....................................................... [12.260] Objective similarity and copying: the causal connection ................ [12.260] [12.280]

Assessing similarity ............................................................ Copying and independent creation ................................... [12.300] Substantiality ....................................................................................... [12.340] Remedies for Infringement .................................................................

740 740 741 741 742 742 743 743 744 744 744 745 747

[12.350] AUTHORISATION AND DIGITAL PIRACY ............................................ 748 [12.360] Authorisation ........................................................................................ 748 [12.400] PERMITTED USES AND DEFENCES TO INFRINGEMENT ................. 751 [12.410] Fair dealing ........................................................................................... 751 [12.420] Other permitted uses .......................................................................... 752

729

Australian Media Law

Overview [12.10] Copyright is of central importance to creative and media industries, such as the music, publishing, art, film and related internet industries. The right to control access to, and reproduction of, copyright material drives the commercial aspects of these industries. An understanding of what copyright protects, who owns copyright and how it can be exploited or commercialised is therefore important for those involved in these industries, or advising industry participants. An awareness of copyright infringement, piracy and when copyright material can be used freely, without copyright infringement, is also important. Copyright is a complicated area of law, to say the least. This chapter is intended to provide an outline of the key copyright concepts of relevance to media industries. 1

The nature of Copyright protection Scope of protection [12.20] Copyright does not protect ideas, it only protects the material form into which an idea has been expressed. This central concept in copyright law is often referred to as the idea/expression dichotomy. To illustrate, an idea for a painting is just an idea until somebody actually paints it - the act of creating a painting that represents the idea (or “embodies” it) in the real world, is the expression of that idea. Although the idea is not protected by copyright, the painting is. Similarly, if one person has an idea for the plot of a novel and tells it to another person, who then writes the novel based on that idea, there is no copyright infringement because the idea alone is not protected. 2 There would only be an infringement if the first person had written his or her own novel, “clothing the idea in form”, and the other person had copied the actual words used to express the idea. The requirement of a material form means there is no copyright in a speech, unless it is a verbatim delivery of a written version, or has been recorded, in which case copyright would attach either to the writing or the recording respectively. 3 In the unusual situation where there is only one way, or only very limited ways, to express a particular idea, copyright protection is

1

2

3

For a detailed treatment of copyright law see S Ricketson and C Cresswell, The Law of Intellectual Property: Copyright, Design and Confidential Information (Thomson Reuters, Looseleaf service). Performers rights are outside the scope of this chapter: see Copyright Act 1968 (Cth), Pt XIA. Donoghue v Allied Newspapers [1938] Ch 106 at 109, 110 per Farwell J (“[i]f the idea, however original, is nothing more than an idea, and is not put into any form of words, or any for of expression, such as a picture, then there is no such thing as copyright at all”). Walter v Lane [1900] AC 539.

730 [12.10]

Chapter 12 – Copyright

not usually available as it would effectively monopolise the idea. 4 For similar reasons, facts and information are not protected by copyright 5 nor, generally, are themes, plots or characters. 6 Example

University of London Press v University Tutorial Press [12.30] University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601 University Tutorial Press (UTP) published a series of mathematics exam papers that had been set by academics at the University of London. The University of London, as the academics’ employer and therefore the owner of any relevant copyright, sued UTP for infringement. UTP argued that the exam papers were not protected by copyright at all, as they drew on a “common stock of knowledge” and should be characterised as mere ideas and not copyright works. UTP was unsuccessful, and the court held that although the exam papers drew upon principles and axioms that were commonly understood by all mathematicians, that did not preclude their being an expression of those ideas into a separate material form that was protected by copyright.

Formal considerations [12.40] Copyright has no system of registration in Australia. Material is either protected by copyright or it isn’t, according to the criteria of subsistence as explained below. There is also no need to use the copyright symbol ©. Using the symbol will not create copyright where none exists independently. Equally, leaving the symbol out does not destroy a copyright that otherwise exists. It follows that the absence of a © symbol on material does not necessarily mean you can copy it. From the author’s point of view, it is wise to use the © symbol regardless, as it puts others on notice that copyright protection is being asserted in relation to the material. The symbol is also commonly used in conjunction with dates and names, to identify the author or creator and the year of creation, eg, © Jennifer Ireland, 2015.

4 5

6

Kenrick & Co v Lawrence & Co (1890) 25 QBD 99 (no copyright protection for a simple drawing of a hand placing a cross in a box on a “how to vote” card as expression could not be separated from the idea). IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458 at [28] per French CJ, Crennan and Kieffel JJ (time and title information from a television schedule not protected); Telstra Corporation Ltd v Phone Directories Co Pty Ltd (2010) 194 FCR 142 (telephone directory listing data not protected). Note that compilations of facts may be protected, but copyright is over the compilation, not the underlying facts. Telstra Corporation Ltd v Royal & Sun Alliance Insurance Australia Ltd (2003) 57 IPR 453 (“Mr Goggomobile” character not protected in isolation from the material form of the scripts used in Telstra’s advertisements, which had not been copied); Baigent v Random House Group Ltd [2007] All ER (D) 456 (Mar); (2007) 72 IPR 195 (“The Da Vinci Code” did not infringe copyright in what was claimed to be the theme of an earlier non-fiction work “The Holy Blood and the Holy Grail”, at most, only ideas or general propositions had been taken).

[12.40] 731

Australian Media Law

Connecting factors and overseas content [12.50] In order to be protected by Australian copyright law, most types of material must have been made by a “qualified person” 7 or first published 8 in Australia in order to satisfy jurisdictional connecting factors. Sound recordings, films and broadcasts also satisfy the connecting factors where they are made in or from Australia. 9 Australian copyright law protects copyright material within Australia that was created overseas in countries that are also signatories to the Berne Convention, in the same way as if the material originated in Australia. 10 Australian copyright materials are also afforded protection in other Convention countries as though they were created in those countries. 11

Subsistence of Copyright [12.60] Eight categories of material are protected by the Copyright Act 1968 (Cth). 12 Copyright is said to “subsist” in materials that fall within these categories, and which also satisfy any other relevant requirements. However, items must be within one of these statutory categories to be protected by copyright at all; there is no general copyright protection for items that do not fall within one of the statutory categories. 13 Items may also contain more than one type of copyright content within them: for example a book that contains text is a literary work, but it may also contain photographs, drawings and graphs, all of which are separate forms of copyright work.

Works Protected Categories [12.70] Collectively, the following types of materials are referred to as “works” in Pt III of the Copyright Act 1968 (Cth), that is, as literary, dramatic, musical or artistic “works”. • Literary works: This term is not exhaustively defined in the Act, and any text or writing-based materials may potentially fall within the concept. Books and poems are obvious examples, but letters, emails, business reports, computer programs 14 and text on

7

A “qualified person” is an Australian citizen or resident: Copyright Act 1968 (Cth), ss 32(4), 84 (bodies corporate incorporated under Australian law may also be qualified persons in relation to subject matter other than works).

8 9 10 11 12

Copyright Act 1968 (Cth), s 29. Copyright Act 1968 (Cth), s 89 (sound recordings), 90 (films), 91 (broadcasts). Copyright (International Protection) Regulations 1969 (Cth). The concept is one of “national treatment” for foreign works: see further Copyright Act 1968 (Cth), Pt VIII. See [12.70] (works), [12.120] (subject-matter other than works).

13 14

Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414. Copyright Act 1968 (Cth), s 10(1) (definition of “literary work”).

732 [12.50]

Chapter 12 – Copyright

websites also qualify for protection under this category. 15 Compilations formed from other works or materials, whether copyright or not, are also protected, although copyright over the compilation is a separate right from any rights that may apply to the underlying works it is compiled from. 16 • Dramatic works: These include scripts and scenarios for films, choreography and even mime, but must be distinguished from the film itself, which has a separate copyright of it’s own. • Musical works: These are the actual notes of the music. Lyrics, by comparison, are literary works. • Artistic works: These include photographs, paintings, drawings, plans, models, buildings and sculptures. The logo of a business may be able to be protected as an artistic work. Example

Elwood Clothing v Cotton On Clothing [12.80] Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd (2008) 172 FCR 580 Elwood sued Cotton On over what they claimed were infringements of their “US-College” style T-shirt designs by Cotton On. Before determining the infringement action, it was necessary to establish which aspects of the T-shirts were protected by copyright, if any. Elwood argued that their T-shirts were both literary works and also artistic works. The Full Federal Court rejected the argument that the lettering and large numbers, typical of this style of T-shirt, could be protected as a literary work. In making this finding the Court reasoned that the letters and numbers did not perform any “semiotic function” - they were not intended to be read - so they could not be literary works. However, copyright did subsist in the overall placement of letters and numbers on the T-shirts, which the Court held was an artistic work, specifically a drawing. The T-shirt design was intended to convey a particular visual look and to be understood as a design. Copyright therefore subsisted in the design as a whole. The Cotton On T-shirts were also held to be infringements of Elwood’s designs.

No requirement of merit [12.90] The names of the categories of protected works may at first seem to indicate some form of creative value, or merit, that the material must have. However merit is not a 15

For other examples of content that has been protected as a literary work see Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 All ER 465 (betting coupons); Woolworths Ltd v Olson (2004) 63 IPR 258 (powerpoint slides); Erica Vale Australia Pty Ltd v Thompson & Morgan (Ipswich) Ltd (1994) 29 IPR 589 (words on seed packets).

16

Copyright Act 1968 (Cth), s 10(1) (definition of “literary work”). Compilation copyright has been held to subsist in directories, forms, catalogues and a wide range of other fairly prosaic documents: see, for example, Blackie & Sons Ltd v Lothian Book Publishing Co Pty Ltd (1921) 29 CLR 396 (annotated Shakespearean play); Collis v Cater, Stoffell & Fortt Ltd (1898) 78 LT 613 (chemist’s catalogue); A-One Accessory Imports v Off Road Imports Pty Ltd (1996) 65 FCR 478 (motor spare parts catalogue).

[12.90] 733

Australian Media Law

requirement for copyright protection. For example, there is no requirement for a “literary work” to be beautifully written, or expressive of high-minded concepts. Quite commonplace written works such as lists, rough notes and several of the other examples provided above can be protected as literary works, provided they are text-based and are substantial enough to qualify. Single words, and very short works such as slogans and headlines, are not usually considered to be substantial enough for copyright protection as they do not usually provide “information, instruction or literary enjoyment” to the reader. 17 Even computer programs are protected as literary works, although the legislation had to be changed to ensure they were covered. 18 Similarly, most types of artistic works do not need to be “artistic” or creative enough to be protected - they only need to satisfy the definition of a sculpture (which is very broad), painting, drawing, or other specified type of artistic work. Some artistic works are further defined in the Act, others take their ordinary meaning. 19 There is only one category of copyright material that does require artistic merit, which is the “work of artistic craftsmanship”. These are usually day-to-day items which display artistic merit, judged objectively, that is not necessary to their intended function. 20 For example, a planter pot may not need decorations in order to function as a pot, but if it has been decorated with mosaics (for instance) it may be a work of artistic craftsmanship, having regard to the overall aesthetics, the court’s objective evaluation of the item, the artist’s intentions and several other factors.

Originality [12.100] Works require “originality” in order to be protected by copyright. 21 However, the term does not mean novelty, inventiveness, or any degree of merit. In the context of copyright subsistence, originality requires that the work must be the author’s own original work and not be copied from another source. 22 Usually this requirement is satisfied by demonstrating that the author has exercised his or her “skill, labour or judgment” in bringing the work into existence. 23 Where compilations are concerned, the requirement is usually satisfied by the 17

18 19

Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd (2010) 189 FCR 109 (copyright denied for headlines, treated as a class, although the potential for individual headlines to satisfy the requirements was acknowledged); Exxon Corp v Exxon Insurance Consultants International Ltd [1982] Ch 119 (copyright protection denied for the single invented word “Exxon”). Copyright Act 1968 (Cth), s 10(1) (definition of “literary work” includes computer programs). See also Data Access Corp v Powerflex Services Pty Ltd (1999) 202 CLR 1. Copyright Act 1968 (Cth), s 10(1) (definitions of “artistic work”, “building”, “drawing”, “engraving”, “photograph” and “sculpture”).

20

Burge v Swarbrick (2007) 232 CLR 336 (yacht design was not a work of artistic craftsmanship as it’s appearance was dictated by functional, commercial considerations). Compare Coogi Australia Pty Ltd v Hysport International Pty Ltd (1998) 86 FCR 154 (pattern of a knitted fabric protected).

21 22

Copyright Act 1968 (Cth), s 32. See, for example, University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601 at 608 per Farwell J; Sands & McDougall Pty Ltd v Robinson (1917) 23 CLR 49; Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 at 511 per Dixon J. See, for example, Ladbroke (Football) v William Hill (Football) Ltd [1964] 1 All ER 465 at 478 per Lord Devlin; IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458 at [45]-[48].

23

734 [12.100]

Chapter 12 – Copyright

selection, arrangement and presentation of the content that forms the compilation. 24 Recently, developments to the originality concept have emphasised that it also requires the author to have put what is referred to as “sufficient intellectual effort” directly into the expression of the idea into its final material form. 25 It follows that a computer cannot be an author for the purposes of copyright in Australia at present, as only human authors can provide the required “intellectual” input. Example

Telstra v Phone Directories [12.110] Telstra Corporation Ltd v Phone Directories Co Pty Ltd (2010) 194 FCR 142 Telstra brought copyright infringement proceedings against Phone Directories in relation to their use of listing data sourced from Telstra’s telephone books. The court dealt with subsistence of copyright in the telephone books as a separate, preliminary question. A previous decision of the Full Federal Court in Desktop Marketing v Telstra 26 had held that copyright subsisted in the listing data of Telstra’s phone books as a literary work, more specifically a “whole of universe” compilation, due to the labour and expense expended in compiling the database, and notwithstanding that there were limited ways in which the data could be meaningfully arranged. However, at trial in Phone Directories, Gordon J held, on essentially the same facts as Desktop, that there was no copyright in Telstra’s phone books. The decision was upheld on appeal to the Full Court. In line with observations made in the intervening High Court decision in IceTV v Nine Network Australia, 27 the Full Court decision in Phone Directories focused on the intellectual effort put into expression of the “compilation” into its final material form. This part of the process was actually done by Telstra’s computer system. Human collection and data entry of the factual listing information was not enough to satisfy the requirements of originality, and there was therefore no copyright. Human control of the software was not sufficient - their control was over a “process of automation” - not an expression involving intellectual effort from a human author in expressing the work. Perram J observed that: 28

24

See, for example, Cambridge University Press v University Tutorial Press Ltd (1928) 45 RPC 335 (selection of essays); Ladbroke (Football) v William Hill (Football) Ltd [1964] 1 All ER 465 (selection and arrangement of wagers to be included in football betting coupons); Tonnex International Pty Ltd v Dynamic Supplies Pty Ltd (2012) 99 IPR 31; [2012] FCAFC 162 (selection, and exclusion, of information to be included in a compatibility chart for printer cartridges).

25 26

Telstra Corporation Ltd v Phone Directories Co Pty Ltd (2010) 194 FCR 142; IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458. Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd (2002) 119 FCR 491.

27 28

IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458. Telstra Corporation Ltd v Phone Directories Co Pty Ltd (2010) 194 FCR 142 at [119].

[12.110] 735

Australian Media Law Telstra v Phone Directories cont. The directories were not copied from elsewhere but neither were they created by a human author or authors … [t]he directories did not therefore have an author, and copyright cannot subsist in them. The outcome of the decision is that, in addition to the work not being copied, originality now also requires the input of sufficient intellectual effort by a human author, which is directed towards expressing the work into its final material form. Special leave to appeal to the High Court was refused.

Subject Matter other than Works Protected categories [12.120] Part IV of the Copyright Act 1968 (Cth) contains a further four types of content that can be protected by copyright. • Sound recordings: 29 This category protects the “mechanical” record of sounds embodied in a tape, record or other form of capture, including digital formats. 30 Importantly, the sound recording should be distinguished from the underlying musical work and copyright in these may be separately owned. • Cinematograph films: 31 Films are defined as an aggregate of the visual images, including any sound-track, that enables the film to be shown as a moving picture. 32 Video and computer games have also been held to be films for copyright purposes. 33 • Broadcasts: 34 Television and sound or radio broadcasts are both covered by this category. • Published editions: 35 This term refers to the typesetting and layout of hardcopy editions. This grouping has sometimes also been described as “mechanical” or “derivative” rights. This older terminology reflects an important feature of the “subject matter other than works” group which still resonates today. It is that the types of copyright material in this group all presuppose, or rest upon, some underlying content, which in turn may or may not be (separately) protected by copyright. To illustrate, a sound recording cannot exist in isolation, without any content. Sound recordings, by their nature, capture sounds. Copyright content of 29 30

Copyright Act 1968 (Cth), ss 85, 89. Copyright Act 1968 (Cth), s 10(1).

31 32

Copyright Act 1968 (Cth), ss 86, 90. Copyright Act 1968 (Cth), s 10(1) Historically, this distinction was made to separate analog films being treated as a series of photographs.

33 34

Galaxy Electronics Pty Ltd v Sega Enterprises Ltd (1997) 75 FCR 8. Copyright Act 1968 (Cth), ss 87, 91. See also Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273 (the scope of protection for “a broadcast” does not extend to individual protection of every single visual image). Copyright Act 1968 (Cth), ss 88, 92. See also Nationwide News Pty Ltd v Copyright Agency Ltd (1996) 65 FCR 399.

35

736 [12.120]

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this type is necessarily a sound recording “of” some form of underlying sound, often a song or a musical work. When working with copyright material of the above types, it is therefore also important to consider the copyright status of the underlying content, bearing in mind that it may be separately protected and owned, often as a “work”.

Duration of Copyright Works [12.130] Copyright in most works lasts for the life of the author plus 70 years from the end of the year in which the author dies, not from the date of death of the author. 36 There are some exceptions in relation to works that are unpublished at the author’s death. 37

Subject matter other than works [12.140] Copyright in sound recordings and films lasts 70 years from the end of the year in which the material was first published. 38 For broadcasts the term is 50 years from the expiration of the calendar year in which the broadcast was made. 39 Published editions are protected for 25 years from the expiry of the calendar year of first publication. 40

Expiration of copyright and the “public domain” [12.150] When copyright expires, material is said to enter the “public domain” and it can be copied without having to pay a licence fee to the former copyright owner. Examples of works on which the copyright has expired include those of William Shakespeare, Jane Austen and Oscar Wilde among many, many others. Copyright is also beginning to expire on some very early movies, but copyright owners are active in seeking extensions to the duration of copyright. For example, the film industry are active lobbyists, particularly in the United States, and their role in seeking extensions is considered by many to have kept copyright from expiring in films like early Disney and Elvis Presley movies. The term for most copyrights was extended from (life of the author plus) 41 50 to (life of the author plus) 70 years as part of the Australia US Free Trade Agreement in 2005. 42 In the US the term has been extended to (life 36 37

38 39 40 41 42

Copyright Act 1968 (Cth), s 33(2) (copyright subsists until the end of the 70th year from the year of death). Copyright Act 1968 (Cth), s 33(3) (copyright in unpublished literary works, other than computer programs, dramatic or musical works subsists until the end of 70 years after the end of the calendar year in which the work is first publicly exploited, for instance by publication or performance), s 33(5) (copyright in unpublished engravings subsists until the end of 70 years after the end of the year of first publication). Copyright subsists until the end of the 70 th year from the year of first publication: Copyright Act 1968 (Cth), s 93 (sound recordings), s 94 (films). Copyright Act 1968 (Cth), s 95. Copyright Act 1968 (Cth), s 96. Duration does not include life of the author for all copyright categories. Duration of subject-matter other than works commences at either publication or making of the material as relevant: see [12.140]. US Free Trade Agreement Implementation Act 2004 (Cth) Sch 9, Pt 6.

[12.150] 737

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of the author plus) 70 years in 1998, 43 bringing it into line with the European Union. 44 Unless there are further extensions, this issue will come into the spotlight again as we approach 2019 when some valuable copyright materials, previously protected under the extension, will again approach their copyright expiry dates. When using public domain material it is important to be certain that copyright has expired (noting the end of the year part) and that it has expired on all relevant parts of the content. As noted above, there can be many forms of copyright involved in a single item, or product, so it is important to consider all possible rights. For example, although copyright has obviously expired on the novel “Emma” by Jane Austen, it would not yet have expired on a film depiction of that novel first released less than 70 years ago, and the screeenplay for the film would almost certainly still be protected as a dramatic work.

Authorship [12.160] The person who expresses an idea by turning it into one of the material forms categorised as works is the author of that work for copyright purposes. It follows that a person taking dictation or a “mere amenuensis” is not an author for copyright purposes, as he or she cannot be said to have been responsible for expressing the work into a material form. 45 Although the Copyright Act 1968 (Cth) specifies that the “author” of a photograph is the person who took the photograph, 46 the term is not otherwise defined in relation to copyright. Example

Donoghue v Allied Newspapers [12.170] Donoghue v Allied Newspapers Ltd [1938] Ch 106 The plaintiff was a racing identity who shared a number of anecdotes about his life with a journalist who worked for Allied Newspapers. A dispute over ownership of copyright in the resulting articles arose. In determining the matter, Farwell J observed that: A person may have a brilliant idea for a story, a picture or for a play, and one which appears to him [or her] to be original; but if he [or she] communicates that idea to an author or an artist or a playwright, the production which is the result of the communication of the idea to the author or the artist or the playwright is the

43 44 45

46

Copyright Term Extension Act 1998 (US). Extension of the United States copyright term was tested and held to be Constitutionally valid in Eldred v Ashcroft (2003) 537 US 186; (2003) 56 IPR 608. Directive 93/98/EEC (EU Council, 29 October 1993), available at http://eur-lex.europa.eu/legal-content/EN/ ALL/?uri=CELEX:31993L0098. Cummins v Bond [1927] 1 Ch 167 (a medium who claimed to be channelling a spirit by engaging in a process of “automatic writing” was held to be the author of the resulting text, not the spirit or a member of the audience who had tried to claim copyright on the basis that the spirit was addressing him). Copyright Act 1968 (Cth), s 10(1) (definition of “author”).

738 [12.160]

Chapter 12 – Copyright Donoghue v Allied Newspapers cont. copyright of the person who has clothed the idea in form, whether by means of a picture, a play, or a book, and the owner of the idea has no rights in that product. The journalist was held to be the author of the work, and the newspaper therefore owned copyright as the work had been created in the course of his employment.

[12.180] Joint authorship occurs where each author has collaborated on all parts of the relevant work. 47 For example, if several authors each write their own, wholly separate, chapter of a book, then the book is not a work of joint authorship. By comparison if the authors all work together on each chapter, then the book is one of joint authorship. It has often been said that authorship and originality are correlatives. 48 As there is no specific requirement of originality in relation to subject matter other than works, it follows that there is also no direct equivalent for the concept of authorship. The closest concept is that of the “maker” of such content. 49 Communal ownership of copyright works is not presently recognised under Australian law. Authorship and ownership of indigenous artworks is therefore determined according to regular Australian copyright law and most are viewed as having a single “author”, regardless of tribal or customary interests in the content. 50

Moral Rights [12.190] Individual 51 authors or makers of all categories of works and of cinematograph films have moral rights over their creations, 52 and they retain those rights regardless of ownership of the copyright. 53 Moral rights consist of the right to be attributed as the author of the work; 54 the right not to be falsely attributed as the author of a work 55 and the right of 47 48

49 50 51 52 53 54

55

Copyright Act 1968 (Cth), s 10(1) (definition of “work of joint authorship”). See further Prior v Lansdowne Press Pty Ltd [1977] VR 65. See, for example, IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458 at [34] per French CJ, Crennan and Kieffel JJ; Sands & McDougall Pty Ltd v Robinson (1917) 23 CLR 49 at 55 per Isaacs J (“the two expressions ‘author’ and ‘original work’ have always been correlative; the one connotes the other”). As to makers of content protected as subject matter other than works, see [12.210]. Bulun Bulun v R & T Textiles Pty Ltd (1998) 86 FCR 244 (the artist was the first owner of copyright, notwithstanding that his paintings depicted traditional tribal knowledge). Moral rights are only available to individuals, not corporations: Copyright Act 1968 (Cth), s 190. See also Benchmark Building Supplies Ltd v Mitre 10 (New Zealand) Ltd [2004] 1 NZLR 26. Copyright Act 1968 (Cth), s 189 (definition of “author” includes makers of film for moral rights purposes). Copyright Act 1968 (Cth), s 195AN. Copyright Act 1968 (Cth), Pt IX, Div 2 (attribution must be clear and reasonably prominent: ss 195AA, 195AB), s 195AO. See, for example, Meskanas v ACP Publishing Pty Ltd (2006) 70 IPR 172, FMCA (accidental misattribution of a portrait of Dr Victor Chang, accompanied by delay and further error in publication of correction). Copyright Act 1968 (Cth), Pt IX, Div 3 and s 195AP.

[12.190] 739

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integrity. 56 The right of integrity gives authors the right to prevent “derogatory treatment” of their work, which constitutes a material distortion, destruction or mutilation of the work that is prejudicial to the author’s honour or reputation. 57 Authors cannot sell or waive their moral rights, but they may consent to specific actions being taken in relation to their work which would otherwise potentially impact the author in proscribed ways. 58 For instance, an author entering a publishing contract will commonly be required to give his or her consent to the work being edited in various ways. Consents such as these are widely used across many creative industries and have arguably undermined a great deal of the practical value of moral rights to authors. Moral rights infringements may be defended on the grounds that the infringement was “reasonable” in the circumstances. 59

Ownership Rights of the owner [12.200] When considering the rights of the copyright owner it can help to start by thinking of the term copyright as a two-part word: “copy” and “right”. Broadly speaking, what the copyright owner owns is the right to copy the protected material. In more detail this means that the owner of copyright in a work can publish the work, make and sell reproductions of it, perform the work and make adaptations of it. 60 The copyright owner also owns the right to “communicate” copies of works on or over the internet. 61 However, it should be noted that copyright in artistic works does not give the owner a right to control the making of adaptations of those works, or any rights over a style or genre of artistic work. 62 Owners of copyright in subject matter other than works have a range of rights appropriate to the relevant category. For example, copyright owners have the right to make copies of films and sounds recordings, to show them in public and to communicate them online, 63 while

56 57

58 59 60 61 62

63

Copyright Act 1968 (Cth), Pt IX, Div 4, s 195AQ. Copyright Act 1968 (Cth), ss 195AJ – 195AL. See, for example, Perez v Fernandez (2012) 260 FLR 1, FMCA (replacing a section at the start of the plaintiff’s rap song with the defendant’s audio voice-over constituted derogatory treatment). Copyright Act 1968 (Cth), ss 195AW (films and works included in films), 195AWA (works). Copyright Act 1968 (Cth), ss 195AR, 195AS. Copyright Act 1968 (Cth), s 31. The term “reproduction” is used in relation to works, while “copy” is used in relation to most categories of subject matter other than works. Copyright Act 1968 (Cth), ss 10(1) (definition of “communicate”), 31(1)(a)(iv). Cummins v Vella (2002) AIPC ¶91-812; [2002] FCAFC 218 (copyright did not protect a naïf style and technique of painting straight from the paint tube, although defendants acknowledged inspiration was taken from the plaintiff’s work). Compare Seafolly Pty Ltd v Fewstone Pty Ltd (2014) 313 ALR 41 (absence of an adaptation right for artistic works does not mean copyright in these works can only be infringed by an exact copy). On the “dividing line” between taking inspiration from an artistic work and copying it see Anchor Mortlock, Murray & Wolley Ltd v Hooker Homes Pty Ltd [1971] 2 NSWLR 278 at 284 per Street J. Copyright Act 1968 (Cth), ss 85, 86.

740 [12.200]

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owners of copyright in broadcasts may film or make sound recordings of their broadcasts. 64 Rights over published editions are limited to the making of a facsimile copy of the edition. 65

First ownership [12.210] The author is usually the first owner of copyright in any content he or she has created. 66 Photographers are therefore the first owners of copyright in their photographs in most non-commercial, non-employment, contexts. An important exception applies where photographs are commissioned for a private or domestic purpose. In this situation, the client owns copyright in the absence of an agreement to the contrary. 67 Photographers seeking to retain ownership of copyright in commissioned photographs of a private or domestic nature require an agreement for valuable consideration 68 to that effect, otherwise the client retains copyright ownership. The maker of a sound recording, film or broadcast is the first owner of copyright in these types of subject matter. 69 Where a sound recording or film has been commissioned, the commissioning party owns copyright in the absence of any agreement to the contrary. 70 Published edition copyright is owned by the publisher of the edition. 71

Employees and contractors [12.220] The main exception to the principle that the author is the first owner of copyright involves copyright material created in the course of the author’s employment. Copyright will usually be owned by the employer in this situation, 72 with some exceptions for journalists. Employed journalists (not contractors) may copy their own work for the purposes of including it in a book, and may also make hardcopy photocopies of their work. 73 What is within the “course of employment” and what is outside it is becoming an increasingly difficult distinction to make in industries where employed workers often work irregular hours and use their own 64 65 66 67

Copyright Act 1968 (Cth), s 87. Copyright Act 1968 (Cth), s 88. “Facsimile copy” is not defined for s 88, but is usually considered to be a hard copy version only: compare the definition of “hard copy facsimile” in s 35(7). Copyright Act 1968 (Cth), s 35(2). Copyright Act 1968 (Cth), s 35(5) (similar principles apply to other commissioned artistic works, such as portraits, and for engravings). “Private or domestic purpose” includes wedding photographs and family portraits: s 35(7).

68 69

Copyright Act 1968 (Cth), s 35(3). Copyright Act 1968 (Cth), ss 97 – 99. The “maker” is the party who owns the record in which a sound recording is first embodied, the person who has made the arrangements necessary for creation of a film, or that party providing the service by which a broadcast was delivered: see s 22(3)(b) (sound recordings), s 22(4)(b) (films), s 22(5) (broadcasts).

70

Copyright Act 1968 (Cth), ss 97(3), 98(3). Each director is a “maker” of a film that has not been commissioned (s 98(4)) and any employer of the director owns copyright in non-commissioned films made under his or her terms of employment: s 98(5). Copyright Act 1968 (Cth), s 100.

71 72 73

Copyright Act 1968 (Cth), s 35(6). Copyright Act 1968 (Cth), s 35(4).

[12.220] 741

Australian Media Law

equipment. 74 This is continuing to blur the line between copyright material created within employment, which the employer owns, and material created outside employment, which the employee owns. Use of contractors and freelance staff is increasingly common in all media areas. Contractors and freelancers are not employees, and it follows that they retain ownership of copyright material they create, even within the course of a paid task, unless the copyright is assigned in writing to the relevant business. The employer does not automatically own the copyright in work created by contractors, only those who are employees. Typically, employees have PAYG pay, annual leave and superannuation, they usually use the employers’ premises and resources and they work under at least some level of day-to-day direction from the employer as to how, when and where their work is to be done. By comparison, contractors usually perform specific tasks for an agreed sum, arrange their own tax, superannuation and schedules, use their own resources and exercise their own judgment as to how, when and where the task is completed. 75 An assignment of copyright is therefore one of the most important things to arrange with any contractors hired to write, take photos, create drawings or other images, or generally to produce any material that could be protected by copyright. Equally, when working as a contractor or freelancer, individuals need to be aware of copyright assignment, as it will usually be requested or probably even required in order to get the work. It may be a point of negotiation in particular contracts but, without an assignment in written form, the hirer will not automatically own copyright in the resulting content, even though it was created under contract.

Exploitation of copyright material Assignment and licensing [12.230] Copyright, like other types of intellectual property, is a form of personal property which can be sold, licensed or left to others in a will. 76 Apart from selling copies of protected material, 77 sale of the copyright itself, or licensing uses of copyright content are the main ways money is made through copyright ownership. As in other legal areas, an outright sale of 74

75 76 77

Stephenson Jordan & Harrison Ltd v MacDonald & Evans (1952) 69 RPC 10 at 18 per Evershed MR (company manuals were written in the course of employment, but public lectures and other presentations were not). Compare Redrock Holdings Pty Ltd v Hinkley (2001) 50 IPR 565 (library of computer programs written prior to commencing employment, but extensively developed during employment and integrated into the employer’s operating software had become a new literary work which was owned by the employer). See also EdSonic Pty Ltd v Cassidy (2010) 189 FCR 271. On the distinction between employees and contractors see, for example, Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16. Copyright Act 1968 (Cth), s 196(1). Exclusive licences must also be in writing s 10(1) (definition of “exclusive licence”). Ownership of copyright is separate from ownership of physical items embodying the copyright content, allowing them to be sold separately: Pacific Film Laboratories Pty Ltd v Federal Commissioner of Taxation (1970) 121 CLR 154.

742 [12.230]

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the copyright is an assignment, whereas a licence allows others to use, access or reproduce the copyright material, usually for specific purposes or subject to certain limitations, in return for a fee, but ownership does not change hands. In order to be valid, assignments of copyright must be in writing. 78 Licences may be express or implied, and may be exclusive or non-exclusive in nature. 79 Common examples of copyright licences can be found in software installations and other types of end user agreements or terms of use across the internet. In addition to voluntary licences there are a number of statutory (compulsory) licences in the Copyright Act 1968 (Cth), such as the statutory licence that allows educational institutions to make multiple copies of copyright content for their students, 80 or for businesses to play copyright music on their premises. Fees are typically paid to collecting societies 81 for these types of uses or licences, and the collecting societies distribute payments to the copyright owners. The potential for multiple copyrights to be contained within a single item (as described earlier) should also be kept in mind when considering what licences may be required before using copyright content, whether these are voluntary licences or those acquired through collecting societies.

Creative commons [12.240] Creative commons licences allow free use of copyright material for certain types of purposes. The permitted uses vary significantly in terms of what uses each type of licence allows. 82 Some creative commons licences allow unlimited uses. Others may require that the author be named (attributed), or may only allow non-commercial uses, or they may prohibit “derivation” or alterations being made to the work to produce a new, altered version. Others, known as “share-alike” licences, allow changes to the material only on the basis that the altered material must then be made available on the same basis to later users. There are numerous combinations and variations of these licences, some of which are broad, while others are quite limited. The exact nature of any creative commons licence should always be checked to avoid any unauthorised uses of the material.

Infringement of copyright [12.250] As explained earlier, the copyright owner has the right to copy and to exploit the protected material in various ways. The copyright owner has the exclusive right to do these things. It follows that, as a general proposition, infringement occurs whenever another party exercises any of the copyright owner’s rights in relation to the copyright material, without the owner’s consent or licence. A finding of infringement involves assessing the similarity between 78

Copyright Act 1968 (Cth), s 196(2).

79 80

See, for example, Concrete Pty Ltd v Parramatta Designs & Developments Pty Ltd (2006) 229 CLR 577. Copyright Act 1968 (Cth), Pts VA (broadcasts), VB (works, other than computer programs, and sound recordings, films and some content contained within broadcasts).

81 82

Such as Copyright Agency Ltd (CAL) and Australasian Performing Right Association Ltd (APRA). See http://www.creativecommons.org.au for more details.

[12.250] 743

Australian Media Law

the alleged infringement and the protected material, determining whether any similarity is due to copying and, where only part of the protected content is involved, analysing the substantiality of that part.

Objective similarity and copying: the “causal connection” Assessing similarity [12.260] Objective similarity is typically assessed by direct comparison between the protected subject matter and the alleged infringement. 83 The court approaches the comparison objectively, and may be assisted by expert evidence. Example

EMI Songs v Larrikin Music Publishing [12.270] EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd (2011) 191 FCR 444 EMI were the producers of Australian band Men at Work’s iconic pop song “Land Down Under”. Larrikin sued EMI, alleging that a short flute riff in Land Down Under infringed Larrikin’s copyright in the famous Australian nursery rhyme “Kookaburra Sits in the Old Gum Tree”. The similarity between the two was not immediately apparent, and indeed had only come to the public’s, and the plaintiff’s, attention after it was raised on the ABC’s music trivia show “Spicks and Speck’s” and some solo performances by Colin Hay the singer and frontman from Men at Work. The question of objective similarity was accordingly a key issue in contention in the infringement action. At trial, Jacobson J engaged in a detailed “note-by-note” comparison, assisted by several experts called by either side. Aural and visual comparisons were made of the notes, melody, key, and harmony of the two songs. Although the court acknowledged that there was some rearrangement and interpolation of Kookaburra, it was still recognisable in Land Down Under and was therefore held to be objectively similar. EMI appealed to the Full Federal Court, arguing that the approach taken by the trial judge was too mechanical, or relied too heavily on expert evidence, but the appeal was dismissed. The Full Court held that the trial judge was entitled to listen to the songs several times and have expert evidence, in short, to be an “educated” listener. There was no requirement that the similarity should be obvious to the casual listener in order to be an infringement.

Copying and independent creation [12.280] The causal element of infringement requires that any objective similarity between the content must be due to copying, and not some other factor such as coincidence. A high 83

See, for example, Eagle Homes Pty Ltd v Austec Homes Pty Ltd (1999) 87 FCR 415 (comparison of house plans); Seafolly Pty Ltd v Fewstone Pty Ltd (2014) 313 ALR 41 (artwork printed on swimwear).

744 [12.260]

Chapter 12 – Copyright

level of objective similarity gives rise to the inference that the similarity is due to copying. 84 It has been accepted that copying may occur subconsciously, but the argument has not often been successfully made. 85 Independent creation of material that coincidentally happens to be objectively similar to copyright material is not an infringement. In fact, in a situation where it can be proved that similarity is coincidental and not due to copying, there are simply two separate copyrights rather than an infringement, as explained earlier. For example, if two photographers happen to take identical photographs the second is not an infringement of the first, but a separate copyright work, provided of course that the second photo was independently created (separately taken) and is not merely a copy of the first photograph. Where independent creation is claimed it is therefore important that the defendant can substantiate that claim by proving he or she did in fact create the impugned content. Example

Francis Day & Hunter v Bron [12.290] Francis Day & Hunter Ltd v Bron [1963] Ch 587 The owners of copyright in a popular song “In a Little Spanish Town”, composed in 1926, sued the publishers of another song “Why”, composed in 1959, for infringement. The Court held 86 that there was a “undoubted degree of similarity” between the two songs, which was “immediately apparent” when the two were compared. This similarity raised the inference of deliberate copying. However, the composer of “Why” denied any conscious copying of the earlier song and gave credible evidence as to how the similarities may have eventuated, but also conceded that he had probably heard “In a Little Spanish Town” at some point when he was younger as it was a popular tune. Although the court accepted that subconscious copying could lead to infringement in some cases, noting that it had done so in some cases in the United States, it had not been made out in this case. The degree of objective similarity between the songs, together with the absence of direct evidence that the composer of “Why” knew the earlier song, was not enough to constitute an infringement.

Substantiality [12.300] While copying the whole of a copyright work or other subject matter is an infringement, copying only part of the content can also be an infringement, provided the part 84

85

86

See, for example, Corelli v Gray (1913) 29 TLR 570 (affirmed Corelli v Gray (1913) 30 TLR 116; (1913) 1B IPR 183) (the number of unique scenes from the plaintiff’s novel that appeared in the defendant’s dramatic work made it improbable that the similarity was due to coincidence or common use of “stock” incidents by both creators). Francis Day & Hunter Ltd v Bron [1963] Ch 587; (1963) 1A IPR 331 at 336 per Wilmer LJ. Compare Abkco Music Inc v Harrisongs Ltd (1983) 722 F 2d 988 (George Harrison’s “My Sweet Lord” was subconsciously copied from “He’s So Fine”). Confirming the decision of Wilberforce J at first instance.

[12.300] 745

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copied is a substantial part of that material. 87 It follows that if less than a substantial part has been copied, there will be no infringement. It may be tempting to think this means there is a “safe amount” of copyright material that can be copied. However, there is actually no safe amount, because substantiality is determined qualitatively, by reference to the quality or nature of the part taken, and not quantitatively, based on the amount or quantity taken. To illustrate, there is a rather persistent misconception that it’s safe to copy up to 8 bars of a musical work such as a song, without infringing copyright. However, if those 8 bars are the chorus of the song, or the main “riff” that everyone would recognise, copying them without the owner’s consent will almost always be an infringement. Qualitatively it may be a substantial part, even if it is only a few bars. 88 Example

EMI Songs v Larrikin Music Publishing [12.310] EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd (2011) 191 FCR 444, FCAFC In the infringement action over “Land Down Under”, 89 substantiality was an important issue, as the impugned flute riff involved only 2 bars of “Kookaburra”, which in full was only 8 bars long when performed as a round. Jagot J emphasised 90 that substantiality is determined by first identifying the copyright work, then identifying, within the alleged infringement, the part taken from the copyright work and finally assessing whether that part is a substantial part, considered qualitatively, of the copyright work. The court was therefore required to determine whether the 2 bars were a qualitatively substantial part of Kookaburra, not whether Land Down Under, considered as a whole, was similar to Kookaburra. Arguments that consideration should be given to whether or not the part taken from Kookaburra was an important or substantial part of Land Down Under were also rejected. The court held that 2 out of 8 bars was a qualitatively substantial part of Kookaburra, and therefore an infringement.

[12.320] When dealing with works, analysis of the quality of the part taken involves consideration of the originality of that part. If the part that has been taken is the aspect that first attracted copyright protection to the material it is likely to be a “substantial” part. 91 Similar 87

Copyright Act 1968 (Cth), s 14(1).

88

Hawkes and Son (London) Ltd v Paramount Film Service Pty Ltd [1934] Ch 593 (use of 20 seconds from a four minute musical piece in a news-reel was an infringement; it was a substantial part because it was the chorus of the work). For further detail on this case see [12.270].

89 90 91

EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd (2011) 191 FCR 444, FCAFC at [186]-[199] per Jagot J. IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458 at [33] per French CJ, Crennan and Kieffel JJ; Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd (2008) 172 FCR 580 (respondent argued unsuccessfully that only the idea, and not a substantial part of the artistic work, had been taken; the overall look of the design and the overall layout was a substantial part of the drawing).

746 [12.310]

Chapter 12 – Copyright

rules apply to subject matter other than works, with some slight variations due to the absence of a specific originality requirement for these categories of copyright content. Example

TCN Channel Nine v Network Ten [12.330] TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (No 2) (2005) 145 FCR 35, FCAFC Channel Nine sued Channel Ten over the unauthorised copying and broadcast of excerpts of Nine’s shows, and those of other channels, as part of Ten’s “The Panel” talk show. The Panel used these excerpts as prompts for humorous discussion of current affairs and aspects of other channels’ programming. The matter had previously been determined by the High Court on the question of the scope of copyright protection for broadcasts, with the Court finding that a broadcast was more than every single visual image taken in isolation, and should be viewed as a program, or possibly a segment of a program. 92 The matter was then remitted to the Full Federal Court on the question of substantiality of the excerpts. 93 The Full Court held that those excerpts that could be described as (variously) the “highlights”, the “heart” or “core”, or the “recognisable” parts were substantial parts of the programs from which they had been taken. Finkelstein J emphasised that regard should be had to the type of interest being protected by copyright in each instance, and that where broadcasts were concerned this may involve issues such as financial and market impact of the copying as well as the value of the part taken in commercial terms. Overall, six of the eleven impugned excerpts were held to be substantial parts, and therefore would be infringements if no defences applied. 94 Special leave for a further appeal on the question of substantiality was refused by the High Court.

Remedies for Infringement [12.340] Remedies for civil actions for copyright infringement include injunctions, damages, including additional damages, accounts of profits, delivery up and destruction of infringing copies 95 as well as a range of provisions allowing Customs to seize imported copies of copyright content. 96 Copyright infringement can also be dealt with as a criminal offence, and

92

Network Ten Pty Ltd v TCN Nine Pty Ltd (2004) 218 CLR 273.

93 94

The Full Federal Court’s earlier finding that “a broadcast” meant every single visual image had obviated the need to rule on substantiality: TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (2002) 118 FCR 417. For more detail on the defences see [12.400]–[12.410].

95 96

Copyright Act 1968 (Cth), Pt V, Div 2. Copyright Act 1968 (Cth), Pt V, Div 7.

[12.340] 747

Australian Media Law

enforcement, including the imposition of significant fines and gaol terms, is an increasingly common response to serious copyright infringement. 97

Authorisation and Digital Piracy [12.350] Digital piracy of audio and visual content is one of the most prominent issues in copyright law at present. Enforcement of copyright owner’s rights in the online world is a very complex legal and policy issue. While individuals can certainly be pursued for any unauthorised copying of copyright content they engage in, infringement actions directly against individuals have been limited for the most part to larger scale pirates seeking commercial gain from their activities. 98 Although experts in digital forensics are able identify Internet Protocol (IP) addresses of individual computers involved in illegal file sharing, 99 copyright owners have not always been able to establish the identity of the holders of those accounts. internet service providers (ISPs) have typically resisted requests for individual account holders’ details on privacy grounds. However, orders for preliminary discovery of account holders’ details have been made as a means of identifying potential, but otherwise unknown, defendants to infringement actions. 100 In Australia, prior approval of correspondence with individual account holders by the court has been mandated to prevent “speculative invoicing” by copyright owners sending inflated and intimidating claims for compensation to individual online infringers. 101 In Australia, copyright piracy cases have centred largely on the liability of ISP and other types of internet hosts for the infringements perpetrated by their users. The policy and law reform agenda has primarily focused on whether a graduated response system, under which a third infringement notice against a user would result in their account being terminated, should be introduced in Australia. 102

Authorisation [12.360] Liability for infringement by authorisation occurs where the defendant has not directly infringed but has in some way assisted or facilitated others to infringe copyright. The test is whether the defendant has “sanctioned, approved or countenanced” the infringement, 97 98 99 100

101

102

Copyright Act 1968 (Cth), Pt V Div 5. See, for example, Cooper v Universal Music Australia Pty Ltd (2006) 156 FCR 380. See Dallas Buyers Club LLC v iiNet Ltd [2015] FCA 317 at [25] (expert evidence on one such monitoring system). Dallas Buyers Club LLC v iiNet Ltd [2015] FCA 317 (the account holders may themselves be the end-user of BitTorrent, or otherwise “have some insight” into who the end-user might be: at [56]-[58]). Discovery of email addresses was not included in the order: Dallas Buyers Club LLC v iiNet Ltd [2015] FCA 317 at [92]. This has occurred elsewhere in the past: Dallas Buyers Club LLC v iiNet Ltd [2015] FCA 317 at [81]-[83] (Perram J referred to evidence of “a number of instances” in which the plaintiff had sent “very aggressive letters indicating to the identified account holder a liability for substantial damages and offering to settle for a smaller (but still large) sum”). Otherwise known as a “three-strikes” system, these are in place in a number of other jurisdictions, including the United Kingdom (Digital Economy Act 2010 (UK)) and New Zealand: Copyright Act 1994 (NZ), ss 122A – 122U (see s 122B for an overview).

748 [12.350]

Chapter 12 – Copyright

even though it was actually carried out by another. 103 In a classic example of authorisation in the “hardcopy” world, a university library that made photocopiers available to students with no warnings about copyright infringement was held to have provided the means by which students, and members of the public, were able to make infringements. The university had therefore authorised those infringements. 104 There are also many cases of authorisation in the online world. Some involve website operators or hosts who distribute software that enables users to infringe. 105 Others provide links to guide users to free, but infringing, content. 106 The following case illustrates some of the key principles of infringement by authorisation in an early music piracy case against an internet host. Example

Universal Music v Sharman Enterprises [12.370] Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) 222 FCR 465 Sharman License Holdings supplied a freeware computer program called Kazaa to the public, which was used mainly to share digital music files. There were two types of files: “gold” files were legal copies of songs while “blue” files, were all other types of files and were usually infringing copies of songs. The Sharman website, which the program could be downloaded from, contained disclaimers and warnings about copyright infringement, and their end-user licences required users, as a condition of the licence, not to use the system to infringe copyright and to acknowledge that what they did on the system was their own responsibility and not Sharman’s. Sharman were sued by Universal Music for authorising their users’ infringements on a very large scale. Wilcox J found Sharman liable for authorisation on several grounds. Importantly, the end-user licences did not protect Sharman from liability under the legislation, nor did the warnings and disclaimers on the website. 107 The fact that piracy was occurring on their network should have been obvious to Sharman from the volume of traffic, and it was in their interests to maximise the number of users because it increased their advertising revenue. Sharman had also failed to use technical measures that were

103

104

105 106 107

Copyright Act 1968 (Cth), ss 36(1), 101(1). Other factors appearing in a partial codification of the law in this area include the authorisers power to prevent infringing conduct, the relationship between authoriser and infringer, and whether reasonable steps were taken to prevent infringement, including compliance with any relevant industry codes: Copyright Act 1968 (Cth), ss 36(1A), 101(1A). University of New South Wales v Moorhouse (1975) 133 CLR 1. Copyright notices are now required for library computers and photocopiers: Copyright Act 1968 (Cth), ss 39A(b), 104B(b); Copyright Regulations 1969 (Cth), regs 4B, 17A, Sch 3. Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) 222 FCR 465. Cooper v Universal Music Australia Pty Ltd (2006) 156 FCR 380, FCAFC. Findings to the same effect were made in Cooper v Universal Music Australia Pty Ltd (2006) 156 FCR 380, FCAFC.

[12.370] 749

Australian Media Law Universal Music v Sharman Enterprises cont. available to them to reduce or deter infringements. 108 Finally, Sharman had actually encouraged users to engage in infringing activities in a number of ways. 109 Sharman were ordered to upgrade their program to include technical measures aimed at curbing piracy by users. It was acknowledged that Sharman could not, as a technical matter, have obeyed an order to close down the network altogether, as once released onto the internet, sharing of the software between users was effectively out of Sharman’s control.

[12.380] By comparison, in a more recent case involving the ISP iiNet, the High Court held that iiNet was not liable for authorising infringements of movies that were being copied by users of iiNet’s internet service. One of the key differences is that iiNet is a provider of access to the internet in a purely technical sense. Unlike Sharman, iiNet was not distributing any programs that enabled infringement by its users. Example

Roadshow v iiNet [12.390] Roadshow Films Pty Ltd v iiNet Ltd (2012) 248 CLR 42 Roadshow and several other owners of copyright in film and television programs sued iiNet, alleging iiNet had authorised infringement by their (iiNet’s) subscribers, who had been using the BitTorrent file sharing system to download illegal movies. The litigation followed iiNet’s refusal to terminate the accounts of individual subscribers on the basis of infringement notices sent to them by the copyright owners. iiNet had no connection with BitTorrrent and did not help its subscribers locate or participate in BitTorrent, nor did it encourage them to do so. There was some evidence that iiNet knew the infringements were happening in a general sense, from the amount of traffic crossing their servers, but the plaintiffs did not provide any evidence of any technical means by which iiNet could have stopped this happening, unlike in the Kazaa case. The film companies were unsuccessful in each instance, with the High Court finding there was no authorisation because iiNet only provided technical access to the internet and did not facilitate infringements made by their subscribers. The Court also held that the infringement notices sent by the copyright owners were not sufficient in terms of their content to require iiNet to act on them, such that iiNet’s failure to do so made them authorisers. However, if those notices had been sufficiently detailed in form, so as to

108

These included “key word filtering” (filtering out files that matched keywords provided to them by record companies) or “gold file flooding”, a practice by which search results were effectively limited to gold files with any potentially infringing blue files “buried” at the end of the results list.

109

Pages on Sharman’s websites criticising record companies for not embracing file-sharing technologies. Other pages encouraging users to “Join the Kazaa revolution” were deliberately designed to make it seem cool to young people to defy the record companies.

750 [12.380]

Chapter 12 – Copyright Roadshow v iiNet cont. require iiNet to act, and iiNet had still refused, it is quite possible that the decision could have gone against them.

Permitted Uses and Defences to Infringement [12.400] Some material that would otherwise be protected by copyright may nevertheless be used freely, without paying a licence fee, for certain types of purposes. The legislation, and government policy, acknowledges that these uses are societally important forms of access to material that would otherwise be “locked up” by copyright ownership. Permitted uses sometimes take the form of exceptions to copyright, or operate as defences to an infringement action, which can have the same practical effect.

Fair dealing [12.410] For people in media and other creative industries, the most important defences are a group known as the “fair dealing” defences. Note that the correct term in Australia, at present, is “fair dealing” not “fair use”. Fair use is the United States defence that is close to, but still different from, our fair dealing defences. There is presently a proposal from the Australian Law Reform Commission to adopt a new United States-style “fair use” defence in Australia, 110 which may be implemented in the future. For the present though, we have a set of situations that qualify as a “fair dealing” with copyright material, such that if a copyright owner sued another party for an unlicensed use of their material, the other party would have a defence. Students regularly use one of the fair dealing defences in the course of their studies. The research or study form of fair dealing allows users to copy 10% of an online publication or one chapter of a book for the purposes of private research or study. 111 Other forms of fair dealing allow copyright material to be used for the purposes of criticism or review, 112 parody or satire, 113 reporting news, 114 and judicial proceedings and provision of professional advice. 115 Importantly, the impugned use must be within one of these areas to be protected, given that there is no general defence for a “fair” use of copyright material at present in Australia. 110 111

113

Australian Law Reform Commission, Copyright in the Digital Economy, Report No 122 (2014) Rec 5. Copyright Act 1968 (Cth), ss 40, 103C. As to what constitutes a reasonable portion for research or study purposes see s 10(2) – (2C). Copyright Act 1968 (Cth), ss 41, 103A. This, and the defence of fair dealing for reporting news, were both significant in excusing some, but not all, of the infringing content in the Panel decision: TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (2002) 118 FCR 417, FCAFC (this instance should be distinguished from the Full Court’s later decision on substantiality, following remittal of the matter back to the Full Court by the High Court; the later instance did not revisit the defences). Copyright Act 1968 (Cth), ss 41A, 103AA.

114 115

Copyright Act 1968 (Cth), ss 42, 103B. Copyright Act 1968 (Cth), ss 43, 104.

112

[12.410] 751

Australian Media Law

Other permitted uses [12.420] Other permitted uses or exceptions include materials made available under different types of creative commons licences, 116 a range of “statutory licences” which allow uses of material on payment of fees to various copyright “collecting societies”, 117 the so-called “home copying” exceptions, 118 a range of computer and technology related exceptions, 119 and parallel importation exceptions for books, sound recordings and computer programs. 120 The specifics of the rules in relation to each of the above exceptions are quite complicated, and the defences often apply much more narrowly than they first appear to. For example, one of the “home copying” exceptions, called time-shifting, allows viewers to copy a TV program to watch later. Technically, this would be a copyright infringement without the defence but, importantly, the defence does not allow any commercial use to be made of the program, nor the giving of a copy to anyone else outside the maker’s own household, or (probably) does not even allow the maker to keep the recording to build up a personal library. Commercial use of any “home copied” content will generally destroy the defence. Example

National Rugby League v Singtel Optus [12.430] National Rugby League Investments Pty Ltd v Singtel Optus Pty Ltd (2012) 201 FCR 147, FCAFC Optus developed a time-shifting “TV Now” service allowing broadcasts of free-to-air television to be recorded for later viewing by subscribers although some use was in fact near-live. Operators of the National Rugby League (NRL) and the Australian Football League (AFL) competitions had exclusively licensed the broadcast rights in football games to Telstra, but TV Now was circumventing this agreement. NRL and AFL sued Optus for infringement of copyright, either directly or jointly with any of their (Optus) subscribers using the service. The central argument was whether Optus had made any infringing copies. The Federal Court held that the customer or subscriber was the maker of any copies of the broadcasts, and they were protected by the home copying exception in Copyright Act 1968 (Cth) s 111 (the time-shifting exception). However, on appeal the Full Federal Court held that either Optus alone, or Optus and the subscriber, made the copies. Subscribers initiated the recording of the broadcast, which Optus then copied and stored for them. Importantly, on either analysis, Optus is directly liable for infringement here as a (or the) maker of the copy, and not as an authoriser. Optus could not rely on

116

Creative commons licences are discussed further at [12.240].

117

Such as licence fees paid by music venues to APRA/AMCOS to allow “covers” of music/songs to be performed in their venue. Statutory licences and collectings societies are described further at [12.230].

118

Copyright Act 1968 (Cth), ss 43C, 109A, 110AA, 111.

119 120

Copyright Act 1968 (Cth), Pt III, Div 4A Copyright Act 1968 (Cth), ss 44A – 44F, 112D, 112DA.

752 [12.420]

Chapter 12 – Copyright National Rugby League v Singtel Optus cont. the time-shifting defence in s 111 as the commercial purpose of their conduct clearly put it outside the scope of the defence’s wording.

[12.430] 753

Advertising

13

[13.10] INTRODUCTION .................................................................................... 756 [13.20] CONSUMER PROTECTION LEGISLATION ........................................... 756 [13.30] MISLEADING OR DECEPTIVE CONDUCT ............................................ 757 [13.40] Relevant conduct ................................................................................... 757 [13.50] Trade or commerce ............................................................................... 759 [13.60] Misleading or deceptive ........................................................................ 759 [13.70] Relevant standard .................................................................................. 760 [13.80] Disclaimers and qualifications .............................................................. 763 [13.100] Specific false representations and selling techniques ...................... 764 [13.110] Specific claims and representations concerning the supply of goods or services .......................................................................... 764 [13.120] [13.130] [13.140] [13.150]

[13.270] [13.280] [13.290] [13.300] [13.310]

[13.390]

Goods of particular standard or quality ............................. 764 Services of particular standard or quality ........................... 765 New goods ....................................................................... 765 Particular person had agreed to acquire goods or services ......................................................................... 765 [13.160] Testimonials ...................................................................... 766 [13.170] Sponsorship or approval of goods or services .................... 766 [13.180] Sponsorship or approval of person .................................... 766 [13.190] Price of goods or services .................................................. 766 [13.200] Repairs or spare parts of goods .......................................... 767 [13.210] Place of origin ................................................................... 767 [13.240] Need for goods or services ................................................ 770 [13.250] Condition, warranty, guarantee, right or remedy ............... 770 [13.260] Requirement to pay for a contractual right ........................ 770 Representations concerning land ...................................................... 770 Representations concerning employment ........................................ 771 Representations concerning certain business activities ................... 771 Prohibition of certain selling techniques ........................................... 771 Remedies and penalties ...................................................................... 772 [13.320] Injunction .......................................................................... 772 [13.330] Damages ........................................................................... 773 [13.340] Ancillary orders ................................................................. 773 [13.350] Pecuniary penalties ............................................................ 773 [13.360] Accessorial liability ............................................................. 775 [13.370] Adverse publicity orders – disclosure/corrective advertising ........................................................................ 776 [13.380] Public warning notices ...................................................... 776 Defences and exemptions .................................................................. 777 [13.390] Defences ........................................................................... 777 [13.410] Exemptions – media safe harbour ...................................... 778

[13.430] RESTRICTED ADVERTISING FOR SPECIAL EVENTS ........................... 780 [13.440] TOBACCO ADVERTISING .................................................................... 782 [13.490] ADVERTISING OF THERAPEUTIC GOODS AND SERVICES ............... 787 [13.500] SELF REGULATION ............................................................................... 788 755

Australian Media Law

[13.510] AANA self regulation ........................................................................... 788 [13.520] [13.530] [13.540]

AANA Advertiser Code of Ethics ......................................... Advertising Standards Board (ASB) .................................... Advertising Claims Board (ACB) ......................................... [13.550] Specific Codes ...................................................................................... [13.550] Therapeutic goods ............................................................ [13.560] Alcoholic beverages ........................................................... [13.570] Motor vehicles .................................................................. [13.580] Food and beverages .......................................................... [13.590] Advertising to children ...................................................... [13.600] Environmental claims in advertising and marketing code .................................................................................. [13.610] Other organisations ...........................................................

788 789 789 790 790 790 791 792 793 795 795

Introduction [13.10] Advertising is ubiquitous in modern society: it is especially prevalent in one form or another in the media. Advertising is not only an essential tool of commerce, it is an important emanation of freedom of speech and expression. Any attempt to regulate advertising should therefore be carefully scrutinised to ascertain whether it is justifiable in a democratic society, including whether the regulation serves a legitimate goal. Regulation of advertising takes a number of forms. This chapter focuses on statutory regulation of the content of advertisements for the protection of consumers, in the form of prohibition of misleading or deceptive conduct and the making of false representations. It also examines statutory controls imposed in specific cases, such as the prohibition imposed on tobacco advertising, and advertising linked to special events like the Olympics. In addition it briefly considers self-regulation of advertising by the industry. 1

Consumer protection legislation [13.20] Protection for consumers is contained in the Australian Consumer Law (ACL) which is enacted as Sch 2 to the Competition and Consumer Act 2010 (Cth) and incorporated as part of the law of the States and Territories by their respective Fair Trading Acts. 2 The principal consumer protection provision in the ACL is s 18, which provides that a person shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. In addition, there are prohibitions of more specific kinds of false representation by corporations in trade or commerce. Due to the Commonwealth’s limited constitutional powers, “person” in the Commonwealth ACL s 18 is limited to persons who are corporations 3 or whose activities attract some other Commonwealth constitutional power, 1 2

3

Advertising may give rise to other liabilities considered elsewhere in this book, including defamation (Chapter 3), vilification (Chapter 9) or breach of copyright (Chapter 12). Fair Trading Act 1992 (ACT), s 7; Fair Trading Act 1987 (NSW), s 28; Consumer Affairs and Fair Trading Act (NT), s 27; Fair Trading Act 1989 (Qld), s 16; Fair Trading Act 1987 (SA), s 14; Australian Consumer Law (Tasmania) Act 2010 (Tas), s 6; Fair Trading Act 1999 (Vic), s 9; Fair Trading Act 2010 (WA), s 19. Competition and Consumer Act 2010 (Cth), s 131.

756 [13.10]

Chapter 13 – Advertising

namely conduct involving interstate or overseas trade or commerce, trade or commerce between Territories or within a Territory, the supply of goods or services to the Commonwealth or Commonwealth authority or instrumentality, or conduct which uses postal, telegraphic or telephonic services or which takes place in a radio or television broadcast. 4 Individuals may also be caught by the extension of the prohibitions to any person who has been “involved” in the contravention, which is defined as having aided, induced, counselled or procured the contravention; induced the contravention by threats, promises or otherwise; been in any way knowingly concerned in the contravention; or conspired with others to effect the particular contravention. 5 At a State and Territory level the ACL is not subject to the same constitutional restraints and thus is applicable to all individuals. The ACL therefore provides a single, national regime for consumer protection and fair trading that applies in the same way both nationally and in each State and Territory. It adopts many of the provisions from the former Trade Practices Act 1974 (Cth), so that existing case law that interprets or illustrates the application of those provisions will still be relevant. The ACL also replaces the wide range of State and Territory consumer laws, not all of which were consistent. In terms of freedom of speech, the prohibitions contained in the consumer protection legislation are justifiable on the grounds of a prevailing interest, namely the public good in the protection of those who are not in a strong bargaining position and who may be vulnerable to being misled or deceived.

Misleading or deceptive conduct [13.30] Section 18 of the ACL prohibits conduct in trade or commerce which is misleading or deceptive or likely to mislead or deceive.

Relevant conduct [13.40] Like misrepresentation at common law, s 18 of the ACL applies to statements of past or present fact. Whether or not the prohibition is contravened does not depend upon the statement maker’s intention or actual belief concerning the accuracy of the statement, but rather whether the statement in fact contains or conveys a meaning which is false. Most commonly, a statement in an advertisement will contain or convey a false meaning if what is stated concerning the past or present fact is not accurate. 6 However, the sections will also cover promises, predictions and opinions included in an advertisement, all of which involve the state of mind of the advertiser when the statement is made. A statement that involves the state of mind of the statement maker ordinarily conveys the meaning (expressly or by implication) that the maker had a particular state of mind when the statement was made. 4

Competition and Consumer Act 2010 (Cth), s 6.

5 6

ACL, s 2. Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 55 ALR 25 at 28.

[13.40] 757

Australian Media Law

Accordingly, the prohibition will be breached where an advertiser makes a promise without a present intention of keeping it, or expresses a prediction or opinion where the advertiser had no reasonable basis for making it. 7 More than one person or entity may be regarded as having made the same misleading statement in breach of s 18. However, the presence of provisions providing for accessorial liability in the ACL 8 mean that a different approach to joint liability is to be taken than is taken by the common law when determining who has published defamatory material. 9 For the purposes of liability under s 18 as a principal for making a misleading representation, it is not enough that a person or entity is aware or ought to be aware that the natural and ordinary consequence of its acts will be that the representation will be made. The question of who engaged in the making of the representation contained in an advertisement is a question of fact to be decided by considering the form and content of the advertisement. In other words, the advertisement must be examined to ascertain whether, in the circumstances, it conveys to the relevant section of the public that representations were being made by the relevant defendant. 10 Thus, for example, where a client decides what message is to be conveyed to the public, utilises an advertising agent’s expertise in conveying a message, “signs off” on the advertisement so created and ultimately decides whether or not to deliver it, the client alone may be seen as having made the representations conveyed and the advertising agency will have no liability as principal. 11 This may be so even if the advertising agency’s name and identification number are prominently displayed on the advertisement. 12 The mere preparation of an advertisement in such a case could not be seen as conveying any representation on behalf of the advertising agency. However, where the defendant adopts the representations which are made in an advertisement, so that the defendant is in the position of providing another (who serves as a “convenient medium” 13) with information to be conveyed to the public about the defendant’s own opinions and expectations, the defendant may be found to have breached the statute. 14 Similarly, an internet search engine such as Google is unlikely to be held responsible for representations made in advertisements that it publishes or conveys. Ordinary and reasonable users would be likely to understand that that sponsored links would be advertisements created by the respective advertisers and merely conveyed by the search engine without adoption or endorsement. 15 7 8

Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 55 ALR 25 at 29. See the definition of “involved in” in ACL, s 2.

9 10 11

Cassidy v Saatchi & Saatchi Australia Pty Ltd (2004) 134 FCR 585 at 591-593. Cassidy v Saatchi & Saatchi Australia Pty Ltd (2004) 134 FCR 585. Cf Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592. The potential liability of an advertising agent as an accessory is considered in [13.350].

12 13

Cassidy v Saatchi & Saatchi Australia Pty Ltd (2004) 134 FCR 585. As described in Barton v Croner Trading Pty Ltd (1984) 3 FCR 95; 54 ALR 541.

14 15

Downey v Carlson Hotels Asia Pacific Pty Ltd [2005] QCA 199 at [37]-[42]. Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435.

758 [13.40]

Chapter 13 – Advertising

Conduct is not judged by reference to subsequent events. Accordingly, the mere non-fulfilment of a promise does not establish that the advertiser did not intend to perform it when it was made. Similarly, that a prediction proves inaccurate does not of itself establish that the advertiser who made the prediction did not believe it would eventuate or that it lacked a proper foundation, and the fact that an opinion proves to be incorrect does not of itself establish that the opinion was not held by an advertiser who expressed it or that it lacked proper foundation. 16 An express statement in an advertisement may be misleading where the advertiser omits some information and what is not said substantially affects the accuracy of what is expressly said. 17 Further, silence itself may amount to misleading conduct where the circumstances are such as to give rise to a reasonable expectation on the part of the recipient that, if some relevant fact existed, it would be disclosed. 18

Trade or commerce [13.50] Trade or commerce is given a broad interpretation. 19 The conduct must have an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character. 20 In the context of an advertisement published in print or broadcast on radio or television, therefore, the advertisement may be seen as being in the “trade or commerce” of not only the advertiser, but also the advertising agency and the media organisation. 21

“Misleading or deceptive” [13.60] To mislead is to lead into error. 22 In the context of s 18 of the ACL “deceive” probably means the same thing. 23 Further, the inclusion of the words “likely to mislead or deceive” in the section means that it is unnecessary to prove that the conduct actually deceived or misled anyone, 24 provided there is a real or not remote chance or possibility of misleading or deceiving, regardless of whether it is less or more than 50%. 25 While evidence that someone was actually misled may be given weight, the task of determining the objective 16 17 18 19 20 21

22 23 24 25

Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 55 ALR 25 at 29. See, for example, Makita (Australia) Pty Ltd v Black & Decker (Australasia) Pty Ltd (1990) ATPR 41-030; Duracell Aust Pty Ltd v Union Carbide Australia Ltd (1988) ATPR 40-918. Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; Commonwealth Bank of Australia v Mehta (1991) ATPR 41-103 at 52,599. Re Kuringai Co-operative Building Society (No 12) Ltd (1978) 36 FLR 134. Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 at 603-604. See, for example, three cases spawned by the same advertisement: Guthrie v Metro Ford Pty Ltd (1977) ATPR 40-030 (advertiser); Guthrie v Doyle Dane & Bernbach Pty Ltd (1977) 16 ALR 241 (advertising agency); Universal Telecasters (Qld) Ltd v Guthrie (1978) 32 FLR 360 (media organisation). Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 198. Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 198. Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191; Taco Co of Aust Inc v Taco Bell Pty Ltd (1982) 42 ALR 177. Global Sportsman v Mirror Newspapers Ltd (1984) 55 ALR 25 at 28.

[13.60] 759

Australian Media Law

meaning of the language used in the minds of recipients will not necessarily be assisted in a cost-effective manner by testimony from members of the public. 26 An actual intention to mislead or deceive is not necessary. 27 Whether conduct is misleading or deceptive is an objective question of fact, determined in the context of the relevant surrounding facts and circumstances. 28 This may include a consideration of the type of market, the manner in which such goods are sold, and the habits and characteristics of purchasers in such a market. 29 When assessing whether advertising material is misleading or deceptive, the “dominant message” or “general thrust” of the material will be of crucial importance. 30 The general thrust will be particularly important in the case of advertisements that are an unbidden intrusion on the consciousness of the target audience (in contrast to, for example, advertisements to potential purchasers who are focused on the subject matter of their purchase in a showroom). In such a case the very purpose of the advertisement is to arrest the attention of the target audience, and even then the attention given to the advertisement by an ordinary and reasonable person may well be no more than perfunctory. 31 Asssessing the effect of an advertisement may be a significant consideration where an advertisement makes certain representations which it then seeks to qualify or which also includes a disclaimer, and the qualification or disclaimer is less prominently displayed. 32

Relevant standard [13.70] Whether a statement is likely to mislead or deceive may depend to a large extent upon the perspective from which it is viewed. It has been held that the first step is to identify the characteristics of the relevant section of the public to whom the conduct is directed. 33 Once the relevant section of the public has been ascertained, the statement is to be considered according to all who come within the class. Accordingly, in the case of an advertisement directed at the general public, it will be adjudged against the standard of “ordinary” or “reasonable” members of the class of prospective purchasers. 34 While a class of consumers may be expected to include a wide range of persons, when isolating the “ordinary” or “reasonable” members of that class, there is an objective attribution of certain 26 27 28 29 30 31 32 33 34

Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 202. Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 197; Yorke v Lucas (1985) 158 CLR 661 at 666. Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177; Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435. ACCC v TPG Internet Pty Ltd (2013) 304 ALR 186 at [52]. ACCC v TPG Internet Pty Ltd (2013) 304 ALR 186 at [45]. ACCC v TPG Internet Pty Ltd (2013) 304 ALR 186 at [47]. See further [13.80]. Taco Co of Aust Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 202; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 199. Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 210 (“ordinary” per Mason J), 199 (“reasonable” per Gibbs CJ); Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45 at 85-87.

760 [13.70]

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characteristics. 35 They are those who are “not particularly intelligent or well informed, but perhaps of somewhat less than average intelligence and background knowledge, although [not, for example, the] quite unusually stupid”, 36 or in the words of another judge, “the astute and the gullible, the intelligent and the not so intelligent, the well educated as well as the poorly educated, men and women of various ages pursuing a variety of vocations”. 37 In the case of a person shopping for a staple item, such as bread in a supermarket, the ordinary or reasonable person may be “intelligent or not, may be well educated or not, will not likely spend any time undertaking an intellectualised process of analysis, will often be shopping for many other items, and will be likely affected by an intuitive sense of attraction rather than by any process of analytical or logical choice”. 38 When determining the likely reactions of ordinary or reasonable consumers of a mass-marketed product for general use, the court may decline to be guided by assumptions by persons whose reactions may be considered extreme or fanciful. 39 Nor does the legislation operate for the benefit of those who fail to take reasonable care of their own interests. 40 An advertiser is only responsible for the active or passive representations made in a commercial. A viewing consumer who is misled not by those representations but instead makes his or her self-induced and incorrect assumptions has no claim under the statute. 41 Moreover the circumstances, including the nature of the product being advertised, may accentuate the risk of an advertisement being regarded as likely to mislead by this standard. For example, for the very reason that a member of the general public who is the purchaser of cheap commodities cannot sensibly be expected to devote much time and thought to the weighing of statements made about them by their producers, an inaccurate statement or an ambiguously qualified statement in an advertisement promoting their sale may often be found to be misleading. 42 An apparently meaningful statement may be misleading or deceptive even though a detailed analysis would have shown it to be meaningless. 43 It is easier to establish that an advertisement is likely to mislead or deceive when its audience is generally

35 36 37 38 39

40 41 42 43

Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45 at 85. Annand & Thompson Pty Ltd v Trade Practices Commission (1979) 40 FLR 165 at 176 (Fed Ct (FC)) per Franki J. Puxu Pty Ltd v Parkdale Custom Built Furniture Pty Ltd (1980) 31 ALR 73 at 93 (Fed Ct) per Lockhart J. ACCC v Coles Supermarkets Australia Pty Ltd [2014] FCA 634 at [43] per Allsop CJ. Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45 at 86-87. For example, the court might discount the view of a witness who believed that the name “Nike” necessarily referred to the Nike sportswear company regardless of the product, including, for example, pet food and toilet cleaner. Such a view would not be that of an ordinary or reasonable member of the public: (2000) 202 CLR 45 at 86-87. Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 199 (per Gibbs CJ). Gillette Australia Pty Ltd v Energizer Australia Pty Ltd (2002) 193 ALR 629 at 635 (per Heerey J), 647 (per Lindgren J), 655 (per Merkel J). Duracell Australia Pty Ltd v Union Carbide Australia Ltd (1988) ATPR 40-918 (advertisement for batteries). Eveready Australia Pty Ltd v Gillette Australia Pty Ltd (No 4) (2000) ATPR 41-751.

[13.70] 761

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unsophisticated, as in the case of an advertisement directed at the general public, 44 than when the communication is directed at a small section of the community with specialist knowledge. 45 It is recognised that comparative advertising may have the valuable effect of enabling consumers to make better informed choices. It would therefore be inconsistent with the policy and objectives of the Act to prevent a trader from publicising a feature of its product which is superior to that of a competitor’s product. 46 However, factual assertions must be true and accurate, they must be actual competitors and competing products, and comparisons should be “appropriate” comparisons. 47 Nevertheless, when comparing two competing products it is not necessary for the commercial to compare all relevant factors that may influence a consumer. 48 A further word of caution in the case of comparative advertising relates to statements which might in some circumstances be perceived as exaggerating a feature or performance of the product, such as “world’s longest lasting batteries”. Used in the context of advertising the product alone, such a statement may be viewed as a mere puff. However, when used in the context of comparative advertising the statement may be transformed into a misleading representation in breach of the statute. 49 Qualifying words will not prevent an advertisement from being deemed to be misleading or deceptive unless they are of sufficient prominence in the circumstances. 50 In relation to television advertising, audio and subscript messages shown during a commercial are not to be regarded as necessarily ineffective, although they are to be viewed in the full context of a particular commercial with regard to the length of time they are shown and other similar considerations. 51 It should also be borne in mind that in the case of television advertising in particular it will be the overall impression conveyed that is important. A misleading overall impression will not be ameliorated by the accuracy of the detailed message which might be derived from a careful analysis of all the constituent parts of the advertisement, which may or may not include disclaimers. 52 44

See, for example, World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181.

45

See, for example, FAI General Ins Co Ltd v RAIA Insurance Brokers Ltd (1992) 108 ALR 479 (promotional material on professional indemnity insurance plan forwarded to architects on request – section nevertheless still breached in the circumstances). Gillette Australia Pty Ltd v Energizer Australia Pty Ltd (2002) 193 ALR 629 at 634 (per Heerey J), 645 (per Lindgren J), 654-655 (per Merkel J).

46 47 48 49 50 51 52

Gillette Australia Pty Ltd v Energizer Australia Pty Ltd (2002) 193 ALR 629. Gillette Australia Pty Ltd v Energizer Australia Pty Ltd (2002) 193 ALR 629 at 634 (per Heerey J), 646 (per Lindgren J), 653 (per Merkel J). Gillette Australia Pty Ltd v Energizer Australia Pty Ltd [2005] FCA 1647. See, for example, ACCC v Target Australia (2001) ATPR 41-840; cf George Weston Foods Ltd v Goodman Fielder Ltd [2000] FCA 1632 (17 Nov 2000). Gillette Australia Pty Ltd v Energizer Australia Pty Ltd (2002) 193 ALR 629 at 635 (per Heerey J), 646 (per Lindgren J). Telstra Corp Ltd v Optus Communications Pty Ltd (1997) ATPR ¶41-451 at 43,514 (per Merkel J). See also P Sadler, “Alcohol advertising and youth drinking in Australia – What are the available complaints mechanisms, legal and otherwise?” (2006) 11 Media and Arts Law Review 129 at 135-136.

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Evidence that a particular person has in fact been misled is persuasive but not conclusive of the fact that the conduct is misleading or deceptive. It is necessary to enquire as to why a misconception has arisen, in order to determine whether it was in fact misleading or deceptive conduct. 53 If an advertisement is capable of bearing more than one meaning, it will be held to be likely to mislead or deceive if any reasonable interpretation of it would lead a member of its audience into error. 54

Disclaimers and qualifications [13.80] Disclaimers and qualifications may be regarded as part of the relevant context. 55 Thus, an appropriately worded disclaimer may detract from or negative any misrepresentation conveyed by the conduct. 56 Alternatively, a disclaimer may break the chain of causation between the allegedly misleading conduct and the loss suffered by the plaintiff: in other words, the disclaimer may mean that any loss suffered by the plaintiff was not in fact caused by the defendant’s conduct. 57 However, the mere presence of a disclaimer or qualification will not necessarily mean that liability under the legislation will be avoided, particularly where the dominant message of the advertisement eclipses any disclaimer. 58 Example

Australian Competition and Consumer Commission v TPG Internet Pty Ltd [13.90] ACCC v TPG Internet Pty Ltd (2013) 304 ALR 186 TPG advertised its broadband internet service using various media including television, radio, cinema, newspapers, magazines, websites, coupon booklets left in letter boxes, public transport, billboards and noticeboards. The campaign prominently featured an offer to supply ADSL2+ service for $29.99 per month but also included a less prominent qualification that the offer was subject to the service being bundled with a home telephone service provided by TPG for an additional $30 per month as well as a setup fee and deposit for telephone charges. At first instance a number of orders were made against TPG for misleading or deceptive conduct, including the imposition of a $2 million fine. TPG’s appeal was upheld by the Full Court of the Federal Court. On appeal to the High Court a 4-1 majority agreed with the primary judge that the dominant message or “general thrust” of the advertisement was the crucial consideration 53

Taco Co of Aust Inc v Taco Bell Pty Ltd (1982) 42 ALR 177.

54 55 56 57

Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations (1992) 38 FCR 1 at 50. Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 at 608. Yorke v Lucas (1985) 158 CLR 661 at 666. Keen Mar Corp v Labrador Park Shopping Centre Pty Ltd (1989) ATPR 46-048.

58

ACCC v TPG Internet Pty Ltd (2013) 304 ALR 186 at [51]; Singtel Optus Pty Ltd v ACCC (2012) 287 ALR 249; Global One Mobile Entertainment Pty Ltd v ACCC (2012) ATPR 42-419 (FCFC) (featured components of advertisements (including an image of singer Justin Bieber in an advertisement for a ringtone based on one of his songs) designed to hold attention of viewer in preference to other elements including disclaimer at bottom of screen).

[13.90] 763

Australian Media Law Australian Competition and Consumer Commission v TPG Internet Pty Ltd cont. and that here that message would be misleading or deceptive for an ordinary and reasonable person. Such persons would be led into error “because the advertisements themselves selected some words for emphasis and relegated the balance to relative obscurity”. To recognise that consumers might absorb only the general thrust or dominant message and not the qualification would not equate to a failure on the part of the members of the audience to take reasonable care of their own interests but rather be a consequence of the effectiveness of the advertising strategy and its selective presentation of information.

Specific false representations and selling techniques [13.100] In addition to the general prohibition against misleading or deceptive conduct, the ACL also prohibits false representations regarding certain matters in connection with the supply or possible supply of goods or services or the promotion by any means of the supply or use of goods or services. Contravention of one or more of the specific prohibitions necessarily involves a contravention of the general prohibition. The difference lies in the fact that while contravention of either leads to the same civil consequences, a contravention of a specific prohibition or prohibitions also results in criminal liability. 59 Further, the legislation contains certain representations concerning land, employment and investment as well as outlawing certain methods or techniques of selling.

Specific claims and representations concerning the supply of goods or services [13.110] Several types of specific claim are prohibited by the legislation. It is not necessary to show knowledge of the falsity of the statement, reckless indifference as to its truth or falsehood or any intention to engage in misleading conduct in order to establish a breach of the relevant section or subsection. 60 It is sufficient if the representation is in fact not correct. 61 A “representation” is complete once the subject matter is irrevocably set forth upon the course which is intended to lead to the audience. Thus, representations made via radio or television are complete once broadcast, while representations made via a newspaper or periodical are complete once the publication has been put into circulation. 62 The specific claims prohibited are discussed below.

Goods of particular standard or quality [13.120] The ACL, s 29 prohibits false or misleading representations that the goods are of a particular standard, quality, value, grade, composition, style or model or have had a 59 60

See [13.340]. Darwin Bakery v Sully (1981) 36 ALR 371 at 376.

61 62

Given v CV Holland (Holdings) Pty Ltd (1977) 15 ALR 439. Thompson v Riley McKay Pty Ltd (1980) 29 ALR 267 at 276-277.

764 [13.100]

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particular history or particular previous use. 63 These various elements are not mutually exclusive. 64 While “standard” refers to an objective attribute, “quality” is a wider term referring to features or attributes of a product, such as value or worth, 65 or even country of origin, such as “made in Australia”. 66 An extra duty to ensure accuracy is placed on those who engage in comparative advertising, although the court will take a robust approach rather than draw fine distinctions when determining whether such advertisements are misleading or deceptive. 67

Services of particular standard or quality [13.130] A false or misleading representation that services are of a particular standard, quality, value or grade is prohibited. 68

“New” goods [13.140] A false or misleading representation that goods are new is prohibited. 69 “New” may be capable of a variety of meanings when used in relation to, for example, motor vehicles, including “not second hand”, “current model”, “not significantly used” or “of recent origin”. 70 The representation will bear the meaning which is appropriate in the circumstances, and the mere fact that the goods are new in one sense will not prevent there being a breach of the section if in the circumstances “new” carried a different meaning. 71

Particular person had agreed to acquire goods or services [13.150] The ACL prohibits a false or misleading representation that a particular person has agreed to acquire goods or services. 72

63

64 65 66

ACL, s 29(1)(a). See, eg, ACCC v Coles Supermarkets Australia Pty Ltd [2014] FCA 634 (while “baked today, sold today” did not connote anything other than a cooking or heating process that day, “freshly baked” or “baked fresh” in the context of an in-store bakery connoted recently and was a representation that the goods had a particular history). Doolan v Waltons Ltd (1981) 39 ALR 408 at 411. Ducret v Chaudhary’s Oriental Carpet Palace Pty Ltd (1987) 16 FCR 562. See also representations with respect to the price of goods or services discussed below: see [13.190]. Siddons Pty Ltd v Stanley Works Pty Ltd (1991) 99 ALR 497. See also [13.210] concerning the specific prohibition relating to false representations of place of origin.

67 68

Energizer Australia Pty Ltd v Gillette Australia Pty Ltd (2001) 189 ALR 480. ACL, s 29(1)(b).

69 70

ACL, s 29(1)(c) Annand & Thompson Pty Ltd v Trade Practices Commission (1979) 40 FLR 165.

71 72

Annand & Thompson Pty Ltd v Trade Practices Commission (1979) 40 FLR 165. ACL, s 29(1)(d).

[13.150] 765

Australian Media Law

Testimonials [13.160] Making a false or misleading representation that purports to be a testimonial by a person relating to goods or services is prohibited. 73 it is also illegal to make a false or misleading representation concerning a testimonial by a person relating to goods or services, or a representation that purports to be such a testimonial. 74 These prohibitions did not appear in the previous Commonwealth and State/Territory regimes and are new additions to the scheme of consumer protection under the ACL. Such representations are taken to be misleading unless there is evidence adduced to the contrary. 75

Sponsorship or approval of goods or services [13.170] The ACL prohibits a false or misleading representation that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits that they do not have. 76 “Sponsorship” means to stand behind an activity, perhaps wholly or partly financing it. 77 To “approve” means to confirm authoritatively, sanction, pronounce to be good or commend. 78

Sponsorship or approval of person [13.180] The legislation prohibits a false or misleading representation that the person has a sponsorship, approval or affiliation that the person does not have. 79 “Sponsorship” and “approval” have the same meanings as in the preceding provision. “Affiliation” is a similar concept, but requires a positive link. 80

Price of goods or services [13.190] The legislation prohibits the making of a false or misleading representation with respect to the price of goods or services. 81 The provisions refer to representations “with respect to” price and therefore are not limited to statements “of” price. Therefore, a false

73

ACL, s 29(1)(e).

74

ACL, s 29(1)(f).

75 76

ACL, s 29(2). See also ACL, s 29(3). ACL, s 29(1)(g). 10th Cantanae Pty Ltd v Shoshana Pty Ltd (1987) 79 ALR 299 at 307 (Fed Ct).

77 78 79 80 81

McDonald’s System of Australia Pty Ltd v McWilliam’s Wines Pty Ltd (1979) 41 FLR 436 at 448. ACL, s 29(1)(h). McDonald’s System of Australia Pty Ltd v McWilliams’s Wines Pty Ltd (1979) 41 FLR 436. ACL, s 29(1)(i). See, for example, ACCC v Telstra Corporation Ltd (2004) 208 ALR 459 (advertisements for mobile phone service using the expression “$0” in relation to a handset when entering into plan held to breach the Trade Practices Act 1974 equivalents of ACL, ss 18 and 29(1)(i) since service could be acquired for significantly less ultimate cost under a different plan without the handset and the early termination charge was greater).

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representation about a method of payment may be caught by the prohibition. 82 Representations concerning the availability or cost of obtaining finance for the purchase of goods or services may also be covered. 83

Repairs or spare parts of goods [13.200] Making a false or misleading representation concerning the availability of facilities for the repair of goods or of the spare parts for goods is prohibited. 84

Place of origin [13.210] Making a false or misleading representation concerning the place of origin of goods is prohibited. 85 This provision was inserted on the basis that often a consumer may be induced to buy a particular item depending upon where it was made, particularly in the case of products claimed to be “Made in Australia” or “Product of Australia”, 86 but also extended to references to particular regions, such as “Wine from Coonawarra” or “Product of Port Lincoln Tuna Processors Pty Ltd, South Australia”. 87 The Australian Competition and Consumer Commission (ACCC) has declared this to be an area of primary concern, especially in light of campaigns by commercial and government bodies to encourage the purchase of Australian-made products in times of concerns about unemployment and the difficulties faced by the Australian manufacturing sector. 88 A number of different tests have been suggested for the meaning of “Made in Australia”, including (1) that the expression is an historical statement, suggesting at least substantial manufacture in Australia; 89 (2) that the goods acquired their essential character in Australia; 90 and (3) a common parlance meaning that all the processes that produced the item occurred in Australia. 91 Courts have tended to apply these tests inconsistently, depending on the nature of the goods. It would seem to be widely accepted, however, that a question of fact and degree is involved. 92

82 83 84

Henderson v Pioneer Homes Pty Ltd (1980) 29 ALR 597. ACCC v Goldy Motors Pty Ltd (2001) ATPR 41-801. ACL, s 29(1)(j).

85

ACL, s 29(1)(k).

86

Previously, claims based on such representations could only rely upon the prohibition of false representations that goods were of a particular “quality” or “history”.

87 88 89

See ACCC v Unilever Australia Ltd (1998) ATPR 41-607. See, for example, Barton v Gary Lai (1994) ATPR 40-495 at 45,702. See, for example, Thorp v CA Imports Pty Ltd (1990) ATPR 40-996 at 50,967; Korczynski v Weslofts (Aust) Pty Ltd (1986) ATPR 40-643; ACCC v Lovelock Luke Pty Ltd (1997) ATPR 41-594. As was proposed by the Trade Practices (Origin Labelling) Bill 1994, which lapsed with the change of government in 1996. Trade Practices Commission v QSVD Holdings Pty Ltd (1995) 131 ALR 493. Thorp v CA Imports Pty Ltd (1990) ATPR 40-996; ACCC v Lovelock Luke Pty Ltd (1997) ATPR 41-594; ACCC v Unilever Australia Ltd (1998) ATPR 41-607.

90 91 92

[13.210] 767

Australian Media Law

Example

Thorp v CA Imports Pty Ltd [13.220] Thorp v CA Imports Pty Ltd (1990) ATPR 40-996 The defendant distributed plush toy koala bears, each of which carried a label containing words to the effect that the bear was “Made in Australia”. The koalas were designed in Australia and went through several stages of manufacture: casings (that is, skins) were first cut and sewn in Korea from Korean fabric, then stuffed and finished (that is, further sewn and checked) in Australia. Sheppard J of the Federal Court of Australia held that a question of fact and degree was involved and a conclusion could only be reached on the basis of a consideration of the entirety of the steps necessary to manufacture the koalas. While each of the steps was an essential element in the production process and without any one of them no koala would have been produced, it was the first step that transformed the material which was used into the essential shape and appearance of a koala. Accordingly, the koalas could not be described as at least substantially manufactured in Australia. The label “Made in Australia” was therefore a false representation which contravened the equivalent of ACL, s 29(1)(k) in the Trade Practices Act 1974. 93

[13.230] In the case of minerals or crops (which are within the definition of “goods” in ACL, s 2), the place of origin will be comparatively easy to identify, but greater difficulties have been encountered with sophisticated articles which derive their value and character as articles of commerce by various circumstances involving design and manufacture. 94 When used in relation to technically sophisticated equipment, and without a qualifying context to limit it, the expression “Made in Australia” suggests that the steps in the composition or construction of the item, including the designed work, were taken in Australia. 95 By contrast, the expressions “Built in Australia” (denoting the fitting together of separate parts involving some skill and judgment) or “Assembled in Australia” (denoting a routine procedure with the application of less skill and judgment) do not imply or suggest that the materials or components used in the process were themselves constructed in Australia, or that the technology employed in the design of the goods emanated from Australia. Accordingly, such statements generally will not contravene the prohibition related to representations of place of origin. 96

93

94

See also ACCC v Lovelock Luke Pty Ltd (1997) ATPR 41-594 (air conditioners designed and assembled in Australia from Australian components apart from imported compressors – use of “Made in Australia” not misleading); ACCC v Unilever Australia Ltd (1998) ATPR 41-607 (imported tuna wholly processed and canned in Australia – use of “Made in Australia” not misleading). Netcomm (Australia) Pty Ltd v Dataplex Pty Ltd (1988) 81 ALR 101 at 106-107.

95 96

Netcomm (Australia) Pty Ltd v Dataplex Pty Ltd (1988) 81 ALR 101 at 107. Netcomm (Australia) Pty Ltd v Dataplex Pty Ltd (1988) 81 ALR 101 at 107-108.

768 [13.220]

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It has been held that the mere use of the word “Australia” or the Australian flag may be sufficient to convey the representation that the goods were made in Australia. 97 The use of qualifying words to “Made in Australia” such as “With Some Imported Components” may mean that the statement is not misleading or deceptive provided the qualification is given equal prominence, including the same sized print. 98 Part 5-3 of the ACL seeks to remove uncertainty by providing when certain country of origin representations will not be regarded as contravening the ACL prohibitions. 99 Section 255 provides a table of requirements which if met will mean that the various sections will not be breached. For example, a representation as to the country of origin such as “Made in Australia” will not breach the sections where the goods have been “substantially transformed” in that country, 50% or more of the cost of producing or manufacturing the goods (as the case may be) is attributable to production or manufacturing processes that occurred in that country and the representation is not a representation that the goods are the “produce” of the country or is a representation of origin by means of a logo. “Substantially transformed” is defined in s 255(3) as the goods undergoing a fundamental change in form, appearance or nature such that the goods existing after the change are new and different goods from those existing before the change. Detailed provisions regarding calculation of cost of production or manufacture have been included in s 256. The table also provides requirements for a representation that goods are the produce of a particular country; a representation as to the country of origin by way of a logo specified in the regulations; a representation that the goods were grown in a particular country; and a representation that ingredients or components of goods were grown in a particular country. Thus, for example, a label like “Product of Australia” may be safely used where each significant goods ingredient or significant component of the goods and all, or virtually all, processes involved in the production or manufacture happened in that country. Similarly, the use of a country of origin logo as specified in the regulations, like the green and gold “Advance Australia” kangaroo logo, will not contravene the Act if the goods have been substantially transformed in the country represented by the logo and the prescribed percentage of the cost of producing or manufacturing goods is attributable to production or manufacturing processes that happened in that country. However, use of the Australian Made logo carries with it a representation about approval to use that logo which elevates the likelihood that a consumer would not enquire further into the origin of the goods or otherwise discover that the claim of “Australian Made” is misleading. In other words, use of the logo, in the context of the credibility and authority that it carries, conveys to consumers the representation that the logo was applied to the goods in accordance with an independent practice to establish the goods were “Australian Made”. 100 97 98 99 100

Siddins Pty Ltd v Stanley Works Pty Ltd (1991) 99 ALR 497 (use of word “Australia”); Barton v Croner Trading Pty Ltd (1984) 3 FCR 95; 54 ALR 541 (use of Australian flag). Trade Practices Commission v QSVD Holdings Pty Ltd (1995) 131 ALR 493. That is the general prohibition in s 18, the specific prohibitions in s 29(1)(a) and (k) and the criminal offences in s 151(a) and (k). ACCC v Marksun Australia Pty Ltd (2011) ATPR 42-363.

[13.230] 769

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Need for goods or services [13.240] Making a false or misleading representation concerning the need for any goods or services is prohibited. 101 This provision will be breached where an advertisement represents that, for example, certain safety equipment is required by law when such is not the case. 102

Condition, warranty, guarantee, right or remedy [13.250] The ACL prohibits the making of a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy. 103 For example, it would apply to a statement that no refunds will be given for retail sales since a breach of the statutory consumer guarantee as to quality of goods 104 would entitle the purchaser to a return of the purchase price. 105

Requirement to pay for a contractual right [13.260] The ACL supports the preceding prohibition by also outlawing the making of a false or misleading representation concerning a requirement to pay for a contractual right that is wholly or partly equivalent to any condition, warranty, guarantee, right or remedy which a person already has under a law of the Commonwealth, State or Territory, other than an unwritten law.

Representations concerning land [13.270] The ACL prohibits certain false representations in connection with the sale or grant, or possible sale or grant, of an interest in land or in connection with the promotion of the sale or grant of an interest in land. The representations and conduct identified are: • representing that the person has a sponsorship, approval or affiliation that the person does not have; or • making a false or misleading representation concerning the nature of the interest in the land, the price payable for the land, the location of the land, the characteristics of the land, the use to which the land is capable of being put or may lawfully be put and/or the existence or availability of facilities associated with the land. 106

101 102 103

ACL, s 29(1)(l). Given v Snuffa Pty Ltd (1978) ATPR 40-083. ACL, s 29(1)(m).

104 105 106

ACL, s 54. Miller v Fiona’s Clothes Horse of Centrepoint (1989) ATPR 40-963 (Fed Ct). ACL, s 30.

770 [13.240]

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Representations concerning employment [13.280] The ACL prohibits a person from engaging in conduct that is liable to mislead persons seeking employment as to the availability, nature, terms or conditions of, or any other matter relating to, employment that is to be or may be offered by the corporation, person or by another person. 107

Representations concerning certain business activities [13.290] The ACL prohibits representations that are false or misleading in material particularly concerning the profitability of any business activity that has been represented as being able to be carried on from a person’s place of residence, or the profitability or risk or other material aspect of a business activity requiring the performance of work (with or without an associated investment of money). 108

Prohibition of certain selling techniques [13.300] In addition to the above prohibitions, the ACL outlaws certain selling techniques that may involve the media, including: • Engaging in conduct in trade or commerce which is liable to mislead the public as to the nature, manufacturing process, characteristics, suitability for purpose or quantity of any goods, 109 or the nature, characteristics, suitability for purpose or quantity of any services. 110 • Offering gifts, prizes or other free items in connection with the supply of goods or services or the sale or grant of an interest in land, or the promotion of such with the intention of not providing them or of not providing them as offered. 111 This prohibition is now supported by a requirement that any person making such an offer must make good on the offer within the time specified in the offer or within a reasonable time if no time is specified. 112 • Bait advertising, that is advertising goods or services at a specified price where there are reasonable grounds for believing that the goods or services would not be able to be offered for that price, or only at that price in limited quantities. 113 This technique involves attracting customers to a business on the pretence of being able to purchase certain goods at a low price, in order for the seller to have the opportunity to persuade them to purchase other goods. The question of reasonableness is determined by reference to the nature of the market and the nature of the advertisement. “Bait advertising” is distinguished from so

107

ACL, s 31.

108

ACL, s 37.

109 110

ACL, s 33. ACL, s 34.

111

ACL, s 32(1).

112

ACL, s 32(2).

113

ACL, s 35.

[13.300] 771

Australian Media Law

called “loss leader” advertising, where the advertised price for the goods does not reflect a profit but the advertiser intends to sell the goods at the advertised price. 114 • Referral selling, in the sense of inducing a consumer to acquire goods or services by representing that the consumer will receive a rebate, commission or other benefit in return for providing the names of other prospective customers. 115 The prohibition prevents consumers from paying possibly inflated prices in the hope of in the long run saving by receiving benefits of some kind. • Accepting payment without intending or being able to supply goods or services as ordered. An offence is committed where there is either an intention not to supply the goods or services or to supply goods or services materially different from those for which payment has been accepted, or where there are reasonable grounds for believing that the goods or services will not be able to be supplied within the period specified or within a reasonable time. 116 • Pyramid selling, whereby persons pay a sum of money to participate in a business scheme or undertaking on the basis that the person who made the payment has the prospect of receiving payments from other persons who have been introduced into the scheme. 117 Pyramid selling is regarded as mischievous because in practice only those at the pinnacle of the pyramid stand any prospect of receiving a reasonable return for their investment and because the scheme is dependent upon others being drawn into its web. • Inertia selling, in the sense of sending unsolicited credit cards, asserting a right to payment for unordered goods or services, or asserting a right to payment for making an unauthorised entry in a business directory. 118 It is misleading to present goods or services to a consumer as a fait accompli when as a matter of contract law mere silence on the part of a recipient is not sufficient to constitute acceptance.

Remedies and penalties [13.310] A range of remedies is available where a person engages in misleading conduct contrary to the provisions of the ACL.

Injunction [13.320] An injunction is available on application by the ACCC or any other person, in either prohibitory or mandatory form. An injunction may be granted against a person who has contravened, attempted to contravene, or aided, induced, been knowingly concerned in or conspired with others to contravene, any one of the prohibitions against misleading conduct. 119 114 115

Wallace v Walplan Pty Ltd (1985) 58 ALR 737. ACL, s 49.

116 117

ACL, s 36. ACL, ss 44 – 46.

118 119

ACL, ss 39 – 43. These are also criminal offences: ACL, ss 161 – 163. ACL, s 232.

772 [13.310]

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Damages [13.330] Damages may be awarded to a person who suffers loss or damage as a result of the misleading conduct of another person. 120 The appropriate measure will be the tort measure of reliance loss, that is damages to place the applicant in the position he or she would have been in had the relevant conduct not been engaged in. 121 The object is not normally to compensate the applicant’s expectation loss, that is to grant damages necessary to place the applicant in the position he or she would have been in had the statement proved to be true. 122 However, this is only a guide: the appropriate assessment of damages will generally depend upon the facts of the individual case.

Ancillary orders [13.340] A number of ancillary orders are available on application by a person who has suffered or is likely to suffer loss or damage caused by conduct in contravention of the legislation. For example, the court may declare a contract to be wholly or partly void, vary the contract, refuse to enforce all or part of a contract, order the refund of money or restitution of property, order the payment of compensation, order repairs or provision of parts, order the provision of services, and make various orders regarding execution of instruments affecting interests in land. 123 Courts have relied upon this provision to order the rescission of contracts that have been induced by misleading conduct. In this connection, while the court will not be obliged to follow the rules in common law and equity governing the exercise of the discretion to order rescission, such rules will nevertheless be taken into account when deciding whether to make the order. Accordingly, an order for rescission will not normally be made where the applicant has affirmed the contract or where it is no longer possible to restore the pre-contractual status quo. 124

Pecuniary penalties [13.350] Breach of a prohibition against misleading conduct other than the general prohibition against misleading or deceptive conduct contained in ACL s 18 also constitutes a criminal offence punishable by fine. 125 No criminal offence is committed by breach of s 18 due to the generality of the prohibition contained in those sections. The primary reason for the imposition of a penalty is the need to deter repetition of the contravening conduct by a contravener (which is regarded as the “need for specific deterrence”) and to deter others who might be tempted to engage in similar contraventions 120 121 122 123

ACL, s 236. Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1. Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 at 14-15. ACL, ss 237, 243.

124 125

Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 79 ALR 83 (Fed Ct (FC)). See ACL, ss 151 – 167

[13.350] 773

Australian Media Law

(the “need for general deterrence”). 126 Pecuniary penalties are as the court determines to be appropriate, having regard to all relevant matters including the nature and extent of the act or omission and of any loss or damage suffered as a result, the circumstances in which the act or omission took place and whether the person has previously been found to have engaged in similar conduct. 127 A checklist of relevant non-mandatory factors that may be taken into account in relation to a corporate defendant includes: • the size of the contravening company; • the deliberateness of the contravention and the period over which it extended • whether the contravention arose out of the conduct of the senior management of the contravener or at some lower level; • whether the contravener has a corporate culture conducive to compliance with the ACL as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention; • whether the contravener has shown a disposition to cooperate with the authorities responsible for the enforcement of the ACL in relation to the contravention; • whether the contravener has engaged in similar conduct in the past; • the financial position of the contravener; and • whether the contravening conduct was systematic, deliberate or covert. 128 In Singtel Optus Pty Ltd v ACCC the Full Court of Federal Court sent a clear message that penalties would be fixed so that, generally speaking, those engaged in trade and commerce would be “deterred from the cynical calculation involved in weighing up the risk of penalty against the profits to be made from contravention” 129 and to make it clear to the contravener and the market as a whole that the cost of causing a risk of contravention of the Act must not be regarded as an acceptable cost of doing business. 130 Fines for misleading or deceptive conduct may therefore be significant, particularly in the case of representations made in multiple forms of media as part of a large advertising campaign. This was demonstrated in Singtel Optus Pty Ltd v ACCC, where the court was of the view that it was fair to infer that Optus, not a first time contravenor, did not “take compliance seriously” and so was fined a record $3.6 million for its misleading advertising campaign for its “Think Bigger” broadband internet plan. Similarly, in ACCC v TPG Internet Pty Ltd 131 misleading and deceptive representations in an advertising campaign for broadband internet service that used various media such as television, radio, cinema, newspapers, magazines, websites, coupon booklets left in letter boxes, public transport, billboards and 126

Singtel Optus Pty Ltd v ACCC (2012) 287 ALR 249 at [62]-[64].

127 128

129

ACL, s 224(2). ACCC v Singtel Optus Pty Ltd (No 4) [2011] FCA 761 at [11] referred to without demur by the Full Court on appeal in Singtel Optus Pty Ltd v ACCC (2012) 287 ALR 249; NW Frozen Foods Pty Ltd v ACCC (1996) 71 FCR 285 at 292. Singtel Optus Pty Ltd v ACCC (2012) 287 ALR 249 at [63].

130 131

Singtel Optus Pty Ltd v ACCC (2012) 287 ALR 249 at [68]. ACCC v TPG Internet Pty Ltd (2013) 304 ALR 186.

774 [13.350]

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noticeboards resulted in a number of orders including a $2 million fine. A like result followed when Apple deliberately decided that global uniformity in its marketing campaign advertising the 2012 series iPad tablet was more important than complying with Australian laws, and the court thought that a fine of $2.25 million appropriate. 132 Where a court considers it appropriate that a defendant both pay compensation and a fine, preference must be given to compensating the victim. 133

Accessorial liability [13.360] Moreover, remedies may be granted, and penalties imposed, against not only the person who engages in the particular conduct in contravention of the legislation, but also a person who has been “involved” in that conduct, which is defined as a person who aided, induced, been knowingly concerned in or conspired with others to effect the contravention. 134 A person who is sought to be made liable as an accessory under this provision must have knowledge of the essential facts and that the representation does not reflect the true state of affairs – in other words, knowledge of the falsity of the representation. 135 However knowledge that the representation actually amounts to a contravention of the statue is not necessary. 136 Accordingly, accessorial liability would seem to require proof of intent based on knowledge, whereas s 18 imposes strict liability on a principal. 137 As noted earlier, it has been held that an advertising agent may be liable as principal in the making of a misleading or deceptive statement only where it could be regarded by the relevant section of the public as adopting the representations made in the advertisement. Where the client has the final sign off and decides on the placement of the advertisement the advertising agent who created the advertisement will escape liability as principal. 138 On the other hand, an advertising agency may be liable as an accessory where it knows that the conduct of the principal (that is, the client) might lead members of the public to assume a state of affairs which was not the true state of affairs. 139

132

ACCC v Apple Pty Ltd [2012] FCA 646 (Apple advertised the tablet as “iPad with WiFi + 4G”, even though it knew that when used in the Australian marketplace in relation to mobile data networks the term “4G” exclusively described a network of a type that only Telstra carried and to which the iPad was incapable of connecting).

133 134

ACL, s 227. ACL, s 2. Yorke v Lucas (1985) 158 CLR 661 at 667; Medical Benefits Fund of Australia Ltd v Cassidy; John Bevins Pty Ltd v Cassidy (2003) ATPR ¶41-971 at [16] (per Moore J with whom Mansfield J agreed). See also Stone J at [80]-[82] (“knowledge of the misleading or deceptive character” of the representation).

135

136 137

Yorke v Lucas (1985) 158 CLR 661. B Marshall, “Holding advertising accountable for misleading statements: Principal or accessorial liability under the Trade Practices Act 1974 (Cth)” (2005) 9 SCULR 147 at 157.

138 139

Cassidy v Saatchi & Saatchi Australia Pty Ltd (2004) 134 FCR 585. See [13.40]. Medical Benefits Fund of Australia Ltd v Cassidy; John Bevins Pty Ltd v Cassidy (2003) ATPR ¶41-971.

[13.360] 775

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Adverse publicity orders – disclosure/corrective advertising [13.370] An order may be obtained, on application by the ACCC, requiring a party in contravention of a section to disclose specified information to the public or to a particular person or group, and/or publish corrective advertisements at its expense. 140 Similar orders for disclosure or corrective advertising may be made under the power to grant a mandatory injunction, in which case the order is available to other persons. 141 An order for corrective advertising may serve three purposes: 1.

to protect the public interest by dispelling incorrect or false impression is caused by early advertising that amounts to conduct that is misleading and deceptive;

2.

to alert consumers to the fact that the contravening party has engaged in misleading and deceptive conduct; and

3.

to provide personal deterrence to ensure there is to be no repetition of the contravening conduct. 142

It has been suggested that an order for disclosure and/or corrective advertising would not be justified unless there was reason to believe that the defendant had engaged in the relevant conduct on a number of occasions, which conduct, in each instance, was misleading or deceptive without being substantially dependent upon the circumstances of the occasion. Alternatively, there must have been a uniform course of conduct (whether by way of advertising or use of documents or otherwise) where there is evidence from which it may be inferred that it was likely that a number of people had been misled or deceived and were likely to be unaware of such misleading or deception, or of their remedies. In circumstances where the context was likely to vary so much from occasion to occasion, and thus only in some contexts would the conduct be misleading or deceptive, it was thought that there would be no basis for making an order for disclosure and/or corrective advertising. 143 The purpose of corrective advertising is to protect the public by correcting false impressions, rather than punish. 144

Public warning notices [13.380] Breach of a prohibition against misleading conduct, whether the general prohibition against misleading or deceptive conduct, a specific false or misleading representation or unfair practice, or criminal offence may result in the ACCC issuing a public warning notice if it is satisfied that one or more persons that suffered or are likely to suffer detriment as a result of 140 141

ACL, s 247. ACL, s 232.

142

Medical Benefits Fund of Australia Ltd v Cassidy (2003) 135 FCR 1 at [49]-[53]; ACCC v Jewellery Group Pty Ltd (No 2) (2013) ATPR ¶42-440 at [22]. Annand & Thompson Pty Ltd v Trade Practices Commission (1979) 40 FLR 165 at 190-191 per Fisher J. ACCC v On Clinic Aust Pty Ltd (1996) 35 IPR 635; ACCC v Signature Security Group Pty Ltd [2003] FCA 3 (13 Jan 2003).

143 144

776 [13.370]

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the conduct and it is in the public interest to do so. Such a public warning notice may serve the same purpose as corrective advertising, although it may reflect more negatively on the business concerned. 145

Defences and exemptions Defences [13.390] The legislation expressly provides for the following defences in a prosecution for the commission of a criminal offence: • reasonable mistake, including that caused by reasonable reliance on information supplied by another person; and • act or default of another person, accident, or some other cause beyond the defendant’s control where the defendant took reasonable precautions and exercised due diligence to avoid contravention. 146 It has been seen that a misleading or deceptive advertisement may be in the “trade or commerce” of not only the particular advertiser but also the media organisation that published the advertisement. 147 To avoid any unintended results, a “publishers’ defence” is provided which is available in both civil and criminal proceedings. A media defendant will have a defence if he or she can establish that he or she: (a) is a person whose business it is to publish or arrange for publication of advertisements; (b) received the advertisement for publication in the ordinary course of business; and (c) did not know and had no reason to suspect that the publication would amount to a contravention. 148 Example

Universal Telecasters (Qld) Ltd v Guthrie [13.400] Universal Telecasters (Qld) Ltd v Guthrie (1978) 32 FLR 360 The defendant televised an advertisement prepared by advertising agents on behalf of a car dealership. The advertisement implied that sales tax cuts which had been introduced would only be available for a certain period when, in fact, they were to continue but at a reduced rate. When the advertisement was telecast, the General Manager, who was the Chief Executive of the defendant company, was absent and the Company Secretary was acting in his place. A complaint was made by a viewer resulting in the conviction of both the car dealership and the advertising agents for breach of the equivalent of the ACL, s 29(1)(i). In the prosecution of the defendant television station, the defendant sought to rely on (inter alia) the publishers’ defence contained in the equivalent of ACL, s 209. 145 146

See, for example, A Rees, “Harmony, penalties and unfair terms: Australian Consumer Law Bill introduced” (2009) 25(1) Competition and Consumer Law News 134. ACL, ss 207 – 208.

147

See [13.50].

148

ACL, s 209.

[13.400] 777

Australian Media Law Universal Telecasters (Qld) Ltd v Guthrie cont. The Full Court of the Federal Court of Australia held that the defence does not require the setting up and policing of a system to avoid any relevant contravention of the Act. Instead, it must be shown that in relation to a particular advertisement the publisher did not know and had no reason to suspect that its publication would amount to a contravention of a provision of the Act. It was not the case that under the Act the knowledge of any servant was treated as the knowledge of a company, or that a company was to be deemed to suspect something if any servant of the company suspected it. The persons relevant for consideration in deciding whether a company “did not know and had no reason to suspect” are those who are to be treated as the company itself. While the General Manager/Chief Executive would have qualified as such, the Company Secretary acting in his place did not. While it was true that in the circumstances the Company Secretary had reasonable grounds to suspect a contravention of the Act, he had not been delegated a general power to deal with all complaints. The fact that he had reason to suspect did not mean that the defendant company had reason to suspect.

Exemptions – media safe harbour [13.410] The provisions of the ACL are also apt to catch statements which are not in the nature of an advertisement, but instead made in the course of the provision of news and other information. This is because such statements may still be in “trade or commerce” in the sense of being published in the course of the media defendant’s publishing or broadcast business. 149 The publishers’ defence only applies to advertisements and does not apply to misleading statements made in the course of publishing other information. Such a result has major ramifications for the free flow of information, and freedom of press, in a democratic society. For example, it may be possible to use the general prohibition in s 18 as an alternative to an action in defamation, on the basis of a publication of misleading or deceptive information which is likely to injure the plaintiff’s reputation. This would enable a plaintiff to avoid the defences to defamation which strike a balance between protection of reputation and the promotion of freedom of speech. 150 This situation is addressed by ACL, s 19, which provides that s 18 does not apply to a publication by an “information provider” if: • the information provider made the publication in the course of carrying on a business of providing information; or • if the information is the ABC, SBS or the holder of a licence under the Broadcasting Services Act 1992 (Cth) and the publication was by way of a radio or television broadcast. Similar exemptions are provided in ACL, s 38 in relation to more specific prohibitions of false or misleading representations (such as s 29) and in s 160 in relation to criminal offences. 149 150

Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd (1983) 47 ALR 497 (Fed Ct); Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 55 ALR 25 at 28 (Fed Ct (FC)). See [3.1370].

778 [13.410]

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However, there are exceptions to the exemption. The exemption does not apply to advertisements, including advertising material or promotion of the information provider’s own services such as a promotional statement in a newspaper or magazine or on television or radio regarding future issues of that newspaper or magazine or future programs on that television or radio station. 151 Accordingly, while ss 19, 38 and 160 operate to exempt information in news reports from the operation of the prohibitions against misleading or deceptive conduct, “promos” for a program to be broadcast later that day or later that week are not similarly protected. It has been suggested that such exemptions do not apply to the liability of a person who has aided, induced, been knowingly concerned in or conspired with others to effect the contravention of the legislation. 152 The consequence would be that if, for example, a misleading statement were made by an interviewee in the course of a broadcast, it would be possible to proceed against the interviewee as principal offender and against the publisher as having aided and abetted the interviewee. The protection provided by the exemption would be evaded. It has been held that, even assuming that this major inroad into the protection offered by the exemption were possible, the applicants would need to demonstrate that the publisher knew that the allegations were false, or, at least, that it was recklessly indifferent to the question whether they were false or not. 153 The exemptions also do not apply where there is a publication of matter in connection with the supply or possible supply of, or the promotion by any means of the supply or use of, goods or services if: • the publicised goods or services were goods or services of a kind supplied by the information provider or, if the information provider is a body corporate, by a body corporate that is related to the information provider; or • the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a person who supplies goods or services of the same kind as the publicised goods or services; or • the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a body corporate that is related to a body corporate that supplies goods or services of the same kind as the publicised goods or services. 154 The second of these exceptions to the exemption will be particularly relevant where a news or current affairs program features a third party’s goods or services pursuant to a contract or arrangement between the program and the third party. 151

152 153 154

Sun Earth Homes Pty Ltd v Australian Broadcasting Corporation (1993) 45 FCR 265 at 280; Fastways Couriers (Aust) Pty Ltd v Australian Broadcasting Corporation (unreported; Federal Court; Gummow J; 27 March 1995). Advanced Hair Studio Pty Ltd v TVW Enterprises Ltd (1987) 18 FCR 1. Sun Earth Homes Pty Ltd v Australian Broadcasting Corporation (1993) ATPR 46-112 at 53,514 per Wilcox J, citing Yorke v Lucas (1985) 158 CLR 661 at 669. ACL, ss 19(4), 38(3), 160(4).

[13.410] 779

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Example

ACCC v Channel Seven [13.420] ACCC v Channel Seven (2009) 239 CLR 305 A producer of the Today Tonight show, which was broadcasted by the defendant, was approached by the promoters of a mentoring program designed to teach women how to become wealthy through investments in real estate. In an exchange of emails the producer and promoter planned a series of six stories about the mentoring program. The ACCC commenced proceedings with respect to misleading or deceptive statements about the benefits of the mentoring program aired in the Today Tonight segments. The High Court held that the exemption provided by the equivalent of ACL s 19 did not apply. The Today Tonight episodes amounted to the publication by an information provider in relation to the supply of goods or services which was pursuant to a contract or arrangement with the supplier of those services. The contract or arrangement was constituted by the exchange of correspondence and it was immaterial that no payment was made for the publicity given for the mentoring program.

Restricted advertising for special events [13.430] It has been seen that the ACL prohibits representations that goods or services have sponsorship, or approval that they do not have, and representations that a corporation/person has a sponsorship, approval or affiliation that he, she or it does not have. 155 In some cases, these provisions will cover claims of association or affiliation with special events to which commercial opportunities may be attached such as Olympic and Commonwealth Games, a Grand Prix, and special celebrations such as the Bicentenary of Settlement in 1988. These events may attract such publicity that they represent prime marketing opportunities. Inevitably, where marketing rights are licensed there will be some who seek to associate themselves with the event without paying for that right. Protection against such unauthorised exploitation may be provided by specific legislation enacted to restrict the opportunities of advertising an association with the event. Typically, such statutory regimes restrict the use for advertising or promotional purposes of indicia or images as well as specific words and phrases which would suggest a connection with the event. For example, the Olympic Insignia Protection Act 1987 (Cth) vested exclusive copyright and design rights in certain Olympic symbols such as the Olympic rings symbol. This general statute was reinforced by a more specific statute, Sydney 2000 Games (Indicia and Images) Protection Act 1996 (Cth) which provided protection for both official indicia and images, but also words such as “Sydney 2000”,

155

See [13.160]-[13.170].

780 [13.420]

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“Games” and “Green and Gold”. 156 The remedies under such statutes may include injunctions, corrective advertisements and damages. The motivation for such legislation is principally commercial. Typically it is aimed at activities such as so-called “ambush marketing”, 157 which seriously undermine the value of marketing rights associated with special events. 158 For example, sponsorship by Visa of the Albertville Winter Games in 1992 was claimed to be undermined by an advertisement by American Express which stated: “Remember to visit Spain. You don’t need a Visa”. Similarly, official sponsor Toyota complained when during the Barcelona 1992 Olympics General Motors Holden ran a promotion whereby it promised to provide a “golden Holden” car to Australian gold medal winners. 159 The difficulty posed by such legislation is the potential chilling effect on freedom of speech and expression, particularly in relation to images or words that have passed into common usage. As much was made clear in the High Court challenge to the validity of the Australian Bicentennial Authority Act 1980 (Cth) 160 which purported to confer on the Authority, which was set up to plan, promote and co-ordinate activities to commemorate the 1988 bicentenary of the European settlement in Australia, exclusive power to authorise the use of its symbol and prescribed expressions. Most of these expressions were words or figures in common usage such as “Bicentenary”, “Australia”, “Sydney”, “Founding”, and “First Settlement”. 161 In the High Court, it was held that the statutory regime was an “extraordinary intrusion into freedom of expression [which was] not reasonably and appropriately adapted to achieve the ends that lie within the limits of constitutional power”. 162 It was also said that while freedom of speech may sometimes be a casualty of a law of the Commonwealth made under a specific head of the legislative power (such as war time censorship), or of a law designed to protect the nation

156

See Sydney 2000 Games (Indicia and Images) Protection Act 1996 (Cth), ss 8, 9. There was an exemption for individuals and corporations who had already used the prescribed indicia or images pursuant to registered trademarks or designs (such as Olympic Airways’ use of the Olympic rings and word “Olympic” in its name): s 24.

157

“Ambush marketing” describes the unauthorised association of a business or organisation with the marketing of a particular event. A business may seek to position itself or undertake advertising that would incorrectly suggest that the business has some association with the event. The ambush marketing is undertaken in the hope of gaining a benefit without paying for the marketing right or licensing fee applicable in order to be officially associated with the event. Such a failure to pay for being officially associated with the event is said to deprive the organiser of the event of the revenue it could have raised from the marketing rights or licensing fees: see F Zumbo, “Ambush marketing” (1996) 12 TPLB 93 at 93. See also S Rofe, “Guide to IP aspects of sport’s marketing” (1994) IPLB 45 at 48. See Senate Legal and Constitutional References Committee, Cashing in on the Sydney Olympics: Protecting the Sydney Olympic Games from Ambush Marketing (March 1995). For an analysis in the context of the 2011 Rugby World Cup see I Finch and B Cain, “World in Union: Major Events Management Act 2007 (NZ) in force for Rugby World Cup” (2010) 23(2) Australian Intellectual Law Bulletin 25.

158

159

See also T Altobelli, “Cashing in on the Sydney Olympics” (1997) LSJ 44; G Orr, “Marketing games: The regulation of Olympic indicia and images in Australia” (1997) 9 EIPR 504.

160

Davis v Commonwealth (1988) 166 CLR 79.

161 162

Australian Bicentennial Authority Act 1980 (Cth), s 22. Davis v Commonwealth (1988) 166 CLR 79 at 100 per Mason CJ, Deane and Gaudron JJ.

[13.430] 781

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(such as a law against sedition or seditious utterances), freedom of speech could hardly be an incidental casualty of an activity undertaken by the Executive Government to advance a nation which boasts of its freedom. 163 Not all instances of alleged “ambush marketing” will be caught by such legislation. For example, the mere use by an advertiser of a well known Australian Olympic athlete without direct reference to the Olympics and without the use of Olympic words or symbols, is unlikely to breach a statute like the Sydney 2000 Games (Indicia and Images) Protection Act 1996 (Cth). In the absence of a breach of a section such as ACL, ss 29(1)(g) – (h) and 151(1)(g) – (h), related to false claims of sponsorship or affiliation, and in the absence of common law passing off, such tactics would likely be regarded as lawful.

Tobacco advertising [13.440] Advertisements for smoking and tobacco products are prohibited by both Commonwealth and some State/Territory legislation. The current Commonwealth prohibition is contained in the Tobacco Advertising Prohibition Act 1992 (Cth). This statute prohibits: • any person from broadcasting tobacco advertisements; and 164 • a regulated corporation, or a person in regulated trade or commerce from publishing tobacco advertisements. 165 “Regulated corporation” is defined as meaning a foreign corporation or trading or financial corporation formed within the limits of the Commonwealth, or holding companies of those corporations, companies controlled by them and partnerships including at least one of them, while “regulated trade or commerce” means international or interstate trade or commerce, or trade or commerce by way of a supply of goods or services to the Commonwealth. 166 These additional requirements in relation to the prohibition of publication of tobacco advertisements are necessary due to the absence of a general Commonwealth power over publications. This is not a problem in relation to the regulation of broadcasting. 167 “Tobacco advertisement” is defined very broadly in the Tobacco Advertising Prohibition Act 1992 (Cth) to include any visual or audible message that publicises or promotes smoking, tobacco products, trademarks, designs or manufacturers’ names, or any other words closely associated with tobacco products, whether or not such words are also closely associated with other kinds of products. 168 “Broadcast” also is defined widely to include a service that delivers television programs or radio programs to persons having equipment appropriate for receiving

163 164

Davis v Commonwealth (1988) 166 CLR 79 at 116 (per Brennan J). Section 13.

165 166

Section 15. Section 8.

167 168

Constitution, s 51(v). Section 9(1).

782 [13.440]

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that service, where the delivery uses the radio frequency spectrum, cable, optical fibre, satellite or any other means or a combination of those means. 169 It would embrace, therefore, pay television. “Publishing a tobacco advertisement” is also widely defined in the Act as encompassing a range of conduct such as: • including an advertisement in a document such as a newspaper, magazine, program leaflet or ticket that is available or distributed to the public; • including an advertisement in a film, video, television program or radio program that is, or is intended to be, seen or heard by the public; • selling, hiring or supplying, or offering to sell, hire or supply, the advertisement or something containing the advertisement to the public; • displaying, screening or playing an advertisement so that it can be seen or heard from a public place, public transport or a work place; • advertisements disseminated by electronic means in connection with telegraphic, telephonic or other services falling within the ambit of Commonwealth power, including by means of the internet or by remote access by computer, mobile phone or other electronic device; and • bringing the advertisement or something containing the advertisement to the notice of or disseminating the advertisement or something that contains the advertisement to the public by any means (including film, video, computer disk or any electronic medium). It would seem that for a media organisation to breach the prohibition it must have intended to broadcast a tobacco advertisement. The offence is not complete when any material is broadcast. The intention must extend also to the character or nature of the material broadcast. 170 Example

Channel Seven Adelaide Pty Limited v ACMA [13.450] Channel Seven Adelaide Pty Ltd v Australian Communications and Media Authority [2014] FCAFC 32 Channel Seven evening news in Adelaide broadcasted a 80 second report about cheap imported cigarettes being sold in Coles supermarkets. The report included, inter-alia, visual images of people smoking, restocking of cigarette packs on a stand and identifiable brands available in Australia. ACMA ruled on a complaint that the report amounted to the broadcast of a tobacco advertisement in breach of the prohibition and

169 170

Section 8. Channel Seven Adelaide Pty Ltd v Australian Communications and Media Authority [2014] FCAFC 32 (evening news segment concerning availability of cheap imported cigarettes in Coles supermarket including images of identifiable brands and of people smoking held not to breach the prohibition against tobacco advertising and therefore not a breach of Channel 7’s commercial broadcasting licence).

[13.450] 783

Australian Media Law Channel Seven Adelaide Pty Limited v ACMA cont. as a consequence was also a breach of Channel Seven’s commercial broadcast licence. When Channel Seven sought a judicial review of the finding, the primary judge upheld the decision by ACMA. The Full Court of the Federal Court upheld Channel Seven’s appeal. Tracey and Robertson JJ held that the prohibition required giving publicity to or otherwise promoting smoking or the purchase of tobacco products. The news report in this case lacked the requisite character of a tobacco advertisement. Flick J also found in favour of Channel Seven based on the long established need for any criminal offence it is necessary to show both an actus reus and a mens rea. The prohibition in s 13 was not a strict liability offence. Here the latter was lacking: there was no intention to broadcast a tobacco advertisement in the news report.

[13.460] The Commonwealth Act was introduced to provide a national standard to stand alongside varying legislation enacted by some States and Territories, and to provide a prohibition of tobacco advertising in those States and Territories without legislation. 171 However, the Commonwealth legislation does not exclude any State or Territory law on the same subject. Section 6 of the Commonwealth Act expressly provides that the tobacco advertising laws of a State or Territory are not excluded or limited to the extent that they are capable of operating concurrently. Indeed, the section specifically provides that if particular conduct constitutes an offence against a State or Territory Act as well as being contrary to the Commonwealth Act, the State or Territory Act also applies to that conduct. This means that a party contravening both the Commonwealth and relevant State/Territory Act may be liable to be prosecuted twice for that same conduct. Further, if conduct is exempted or covered by a defence under the Commonwealth Act, that exemption or defence has effect only for the purposes of the offence against the Commonwealth Act. The conduct might therefore possibly still constitute an offence under the State or Territory Act. 172 The Commonwealth statute provides for a number of defences and exemptions for certain tobacco advertisements. The two defences provided for under the Commonwealth Act are more in the nature of transitional provisions, related to publication of tobacco advertising in connection with sponsorships and signage under contracts entered into before specified dates. 173 As contracts or arrangements that predated the Act eventually run out, these defences will lose relevance. The exemptions are of greater significance. Exemptions are provided where the tobacco advertisement is:

171

See, for example, Tobacco Act 1927 (ACT), s 10; Tobacco Products Regulation Act 1997 (SA), s 40; Tobacco Act 1987 (Vic), s 6; Tobacco Products Control Act 1990 (WA), s 5. These Acts tend to take a piecemeal approach, prohibiting, for example, advertising tobacco in cinemas, and in public places, and the distribution of documents, films or other objects containing tobacco advertisements.

172 173

Tobacco Advertising Prohibition Act 1992 (Cth), s 6(2) – (3). Tobacco Advertising Prohibition Act 1992 (Cth), ss 21, 22.

784 [13.460]

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• an advertisement at the point-of-sale, subject to State or Territory laws, or if there are no such laws, subject to the Commonwealth regulations. 174 • periodicals containing tobacco advertisements provided they are printed outside Australia and not principally intended for distribution or use in Australia. 175 • a tobacco advertisement published in connection with a sporting or cultural event of international significance, where failure to specify the event would be likely to result in the event not being held in Australia. 176 • the broadcast or publication of a tobacco advertisement where that broadcast or publication is an accidental or incidental accompaniment to the broadcast or publication or other matter, and where no benefit, whether direct or indirect, financial or not financial, is received for the broadcast or publication. 177 • publications not in the course of the manufacture, distribution or supply of tobacco products where the publication was by an individual on his or her initiative and that individual does not receive any direct or indirect benefit (whether financial or not) for publishing the advertisement. 178 Of these exemptions, those related to accidental or incidental broadcast or publication are perhaps the most important to the media in practice. Whether an advertisement is accidental or incidental to the broadcast or publication of other matters is a question of fact for the jury (if there is one). The onus lies on the prosecution to negate beyond a reasonable doubt that the advertisement was accidental or incidental. 179 To the extent that there is an exemption for “accidental” broadcast or publication of tobacco advertising, it may be illusory since accidental acts would not seem to demonstrate the requisite mental element to be classified as “knowing or reckless acts” necessary to establish the offence in the first place. 180 By contrast, “incidental” has a meaning such as “occurring or liable to occur in fortuitous or subordinate conjunction with something else” rather than meaning occupying only a small part of total broadcast time or of publication space. 181 Matter will not be an accidental or incidental accompaniment unless broadcast or published contemporaneously with other matter. 182

174 175

Section 16. Section 17.

176

Section 18. Under the section the event was to be gazetted by the Minister, which could only occur if, inter alia, the event would be completed before 1 October 2006. However, since that time has now passed, this exemption will no longer apply for future events. Sections 14, 19.

177 178

Section 20.

179 180

Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 168 CLR 594. See also R Furlong, “Tobacco advertising legislation and the sponsorship of sport” (1994) 22 Aust Bus LR 159 at 174. Rothmans of Pall Mall (Aust) Ltd v Australian Broadcasting Tribunal (1985) 5 FCR 330; Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 168 CLR 594. Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 168 CLR 594.

181 182

[13.460] 785

Australian Media Law

Example

Director of Public Prosecutions v United Telecasters Sydney Ltd [13.470] Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 168 CLR 594 Prior to the broadcast of the 1984 Winfield Cup Grand Final match of the New South Wales Rugby League, as part of the pre-match entertainment, the spectators at the ground and television viewers saw the “Winfield Spectacular”, a show which included dancers dressed in the Winfield colours. During the course of the show viewers briefly saw a banner being carried which bore the words “Winfield Cup 1984” and also saw an A-frame at the perimeter of the playing field which bore an advertisement for Winfield cigarettes. The broadcaster, Channel 10, was charged under the previous prohibition against tobacco advertising contained in Broadcasting Act 1942 (Cth), s 100(5A). The broadcaster sought to rely upon the exemption for accidental or incidental accompaniment then contained in s 100(10) of the Act. The High Court held that the “Winfield Spectacular” segment was discrete, occupied an appreciable length of time and was relatively unconnected with the football match that followed. Matter will not be an accidental or incidental accompaniment unless broadcast contemporaneously with other matter. The “Winfield Spectacular” could not be said to have happened “in fortuitous or subordinate conjunction” with the televising of the football match. Accordingly, the jury was entitled to hold that the exemption did not apply. “Incidental accompaniment” is a question of fact. 183

[13.480] In this connection, it is well to remember that advertising may be subliminal or subtle, including a choice of the colours or certain words and that a deliberate intention to broadcast may mean that the advertisement is not accidental or incidental. 184 An example of an incidental accompaniment within the exemption might be a televised news item showing a street scene with billboards advertising tobacco products in the background. 185 Similarly, a Sixty Minutes story that showed actor Russell Crowe smoking and holding a cigarette packet was regarded as an incidental accompaniment, but the “Mailbag” segment the following week which showed the same footage followed by viewers’ complaints about Crowe’s smoking fell outside the exemption. 186 This legislation was enacted on the basis that smoking has been shown to be the largest preventable cause of death and disease. 187 A ban on tobacco advertising is one part of a strategy which also includes education programs in an attempt to reduce consumption of 183

Action on Smoking and Health Ltd v Australian Broadcasting Tribunal (1993) 27 ALD 709; TCN Channel Nine Pty Ltd v Australian Broadcasting Authority [2002] FCA 896.

184 185

Rothmans of Pall Mall (Aust) Ltd v Australian Broadcasting Tribunal (1985) 5 FCR 330; Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 168 CLR 594. Rothmans of Pall Mall (Aust) Ltd v Australian Broadcasting Tribunal (1985) 5 FCR 330 at 341.

186 187

TCN Channel Nine Pty Ltd v Australian Broadcasting Authority [2002] FCA 896 (16 July 2002). House of Representatives, Parliamentary Debates, 22 December 1989, pp 3,562-3,563.

786 [13.470]

Chapter 13 – Advertising

tobacco. 188 Nevertheless, such bans have been criticised as reflecting none of the recognised limitations on freedom of speech. 189 It has been described as contrary to the “market place of ideas” in a free and democratic society in which members of the public are taken to be able to decide rationally between different messages. 190 A challenge against similar legislation in Canada 191 was upheld. 192 The Supreme Court of Canada held that the express protection of freedom of expression in the Canadian Charter of Rights and Freedoms deemed the ban on advertising to be invalid because it could not be shown that a less comprehensive ban on advertising (such as a partial ban allowing information and brand preference advertising; a ban on lifestyle advertising; measures to prohibit advertising directed at children and adolescents 193) would not have been equally effective. The Commonwealth statute might face a similar challenge on the basis that it exceeds the Commonwealth’s constitutional powers or otherwise breaches the guarantee of freedom of trade, commerce and intercourse between the States contained in s 92 of the Constitution. 194

Advertising of therapeutic goods and services [13.490] There is Commonwealth legislation which regulates the advertising and promotion of therapeutic goods. Broadly, this legislation prohibits advertisements that contain certain representations, or which does not contain a prescribed representation. 195 Generally, banned representations in this connection will be express or implied representations that the goods will prevent, diagnose, cure or alleviate a particular disease, ailment, defect or injury in humans, influence, inhibit or modify a physiological process in humans, test the susceptibility of humans to disease or ailments, or destroy or inhibit any micro-organisms that may be harmful to humans or animals. Representations prescribed to accompany certain products normally relate to warnings or advice as to safe use. The advertisement of medicines and drugs is also regulated by the Broadcasting Services Act 1992 (Cth), Sch 2 cl 6, which prohibits broadcast of an advertisement until there is clearance from the Department of Health in addition to any industry clearance bodies. Strangely, this prohibition does not apply to community television. 188 189 190 191 192 193 194 195

House of Representatives, Parliamentary Debates, 22 December 1989, p 3,563; House of Representatives, Parliamentary Debates, 16 December 1992, pp 3,884-3,885. S Mize, “The word ’dog’ never bit anyone – the tobacco advertising ban and freedom of expression” (1995) 8 Otago Law Review 425 at 429. Central Hudson Gas & Electric Corporation v Public Service Commission of New York 447 US 557 (1980) at 574-575 (US SC) per Blackmun J. Tobacco Products Control Act 1988 (CAN). RJR-McDonald Inc v Attorney-General of Canada (unreported, Supreme Court of Canada, 21 September 1995). It was noted that bans on lifestyle advertising and advertising aimed at children and adolescents were limiting measures adopted in respect of alcohol advertising. See, for example, “Philip Morris High Court challenge” (1994) 1 Med Law Rptr 123. Therapeutic Goods Act 1989 (Cth). There is supporting legislation in some jurisdictions: see, for example, Therapeutic Goods Act 2001 (Tas).

[13.490] 787

Australian Media Law

Prima facie, there may be concerns related to restrictions caused by this advertising on freedom of speech. However, in this case any infringement is easier to defend than in the case of, for example, prohibitions against tobacco advertising, on the grounds that there may be prevailing concerns related to the health and safety of members of the community concerning matters involving few, if any, choices or particular vulnerability.

Self regulation [13.500] In addition to constraints imposed by law, advertising in Australia is subject to industry self regulation. Self regulation has largely been the initiative of the Australian Association of National Advertisers (AANA), an industry body representing advertisers. There are also specific advertising codes covering advertising of products such as therapeutic goods, alcohol, motor vehicles, food and beverages and advertising for children.

AANA self regulation [13.510] The AANA system of self regulation, which is administered by the Advertising Standards Bureau, 196 comprises three parts: the Advertiser Code of Ethics, the Advertising Standards Board and the Advertising Claims Board.

AANA Advertiser Code of Ethics [13.520] This Code is intended to apply to all forms of advertising, other than advertising via the internet, direct mail or point of sale. The objective of the Code is stated as ensuring that advertisements are “legal, decent, honest and truthful and that they have been prepared with a sense of obligation to the consumer and society and fair sense of responsibility to competitors”. The Code is divided into two sections. Section 1 essentially provides that advertisements must not be misleading, in particular that advertisements must: • comply with Commonwealth, and State/Territory laws (s 1.1); • not be misleading or deceptive or likely to mislead or deceive (s 1.2); • not contain a misrepresentation that may damage a competitor’s goodwill (s 1.3); • not mislead by exploiting the community’s concern for the environment (s 1.4); • not mislead regarding statements about Australian origin or content of goods (s 1.5). Section 2 concerns a range of content matters, namely that advertisements must: • not discriminate against or vilify a person or section of the community on account of race, ethnicity, nationality, sex, age, sexual preference, religion, disability or political belief (s 2.1); • not employ sexual appeal in a manner that is exploitative and degrading of any individual or group of people (s 2.2); • not present or portray violence, unless it is justified in the context (s 2.3); • treat sex, sexuality and nudity with sensitivity taking into account the relevant audience (s 2.4); 196

See the Bureau’s homepage: http://www.adstandards.com.au.

788 [13.500]

Chapter 13 – Advertising

• use appropriate language, and avoid strong or obscene language (s 2.5); • not depict material contrary to prevailing community standards on health and safety (s 2.6); The Code also recognises other specific codes dealing with advertisements directed at children (AANA Code of Advertising and Marketing Communications to Children), advertisements for motor vehicles (Federal Chamber of Automotive Industries Code of Practice relating to Advertising for Motor Vehicles) and advertisements for food or beverage products (AANA Food and Beverages Advertising and Marketing Communications Code).

Advertising Standards Board (ASB) [13.530] The ASB is made up of members of the public. It handles complaints from any source alleging a breach of section 2 of the Code of Ethics or an AANA Code. There are a range of matters the ASB will not consider, including complaints alleging breaches of section 1 of the Code, questions requiring a determination of law or most questions of truth and accuracy, election or political advertising, programming issues, classification issues, advertising that is the subject of litigation, unlawful business practices, discontinued advertising, highly technical issues, labelling or performance of products not related to advertising and loudness or frequency of advertisements. Once a complaint is received, the advertiser is notified and given seven days to provide copies of the advertisement and to offer any response. If an advertisement is found to have breached the Code of Ethics and the advertiser does not respond within five business days to a request to remove or amend the advertisement, the ASB will: • refer the case report containing the determination to the appropriate government agency (where appropriate); • publish the result in the board’s monthly report, on its website and in a press release, identifying the advertiser and the product; and • forward the case report to media proprietors.

Advertising Claims Board (ACB) [13.540] The ACB hears complaints by competitors, and is represented by variable panels made up of legal practitioners. It is intended to provide a system of alternative dispute resolution for complaints about truth and accuracy that might otherwise result in litigation. The ACB adjudicates on alleged breaches of section 1 of the Code. While it usually handles disputes between competitors, the scheme may be accessed by other persons, groups or government agencies. The ACB’s responsibility does not extend to questions of taste, morality or decency (which are handled by the ASB), advertising that is the subject of litigation, unlawful business practices, highly technical issues, packaging claims issues covered by a specific industry code and discontinued advertising. Once a challenge is received, the advertiser is notified and asked to provide copies of the advertisement and a substantial written response, including any supporting data and a summary of arguments. The complainant may submit a reply. If the complaint is upheld and the advertiser does not respond to an invitation to discontinue or modify the advertisement, the ACB will: [13.540] 789

Australian Media Law

• refer the case report containing the determination to the appropriate government agency (where appropriate); • publish the result in the Claims Board’s monthly report, on its website and in a press release, identifying the advertiser and the product; and • forward the case report to media proprietors.

Specific Codes Therapeutic goods [13.550] The Therapeutic Goods Advertising Code Council administers a Code which has the object of ensuring that “the marketing and advertising of therapeutic goods to consumers is conducted in a manner that promotes the quality use of therapeutic goods, is socially responsible and does not mislead or deceive the consumer”. The Code is generally consistent with World Health Organisation criteria for promoting medicinal drugs. The Code contains a number of principles covering matters such as an obligation that advertising must comply with Commonwealth or State laws and must not arouse unwarranted and unrealistic expectations; likely lead to consumers self-diagnosing or inappropriately treating potentially serious disease; mislead through misleading comparisons; lead people to believe they are suffering a serious ailment or (except in the case of sunscreen) that harm could follow the goods not being used; encourage inappropriate consumption; claim a sure cure; claim effectiveness in all cases; claim a product cannot harm or have side effects or be directed at minors. Scientific information and comparative advertising must be presented in a balanced fashion which does not mislead.

Alcoholic beverages [13.560] Advertising of alcohol is subject to a co-regulatory system for alcohol advertising. In the first instance a complaint should be sent to the Advertising Standards Bureau, which assesses the complaint under the AANA Code of Ethics and the Advertising Code for Children. 197 If the complaint raises issues under either of these Codes then the bureau refers the matter to the Advertising Standards Board for its determination. Advertising of alcoholic beverages by the Distilled Spirits Industry Council (DSIC), Australian Associated Brewers, the Winemakers Federation of Australia and the Liquor Merchants Association is also governed by the Alcohol Beverages Advertising Code (ABAC). 198 The Advertising Standards Bureau also sends a copy of the complaint to the ABAC Chief Adjudicator, but decides whether the complaint raises issues solely under the Advertising Standards Bureau’s jurisdiction or also raises issues with the ABAC. If the latter, the complaint will be forwarded to the ABAC Complaints Panel for determination. Under the ABAC advertisements must present a responsible approach to the consumption of alcoholic beverages. It provides for four standards to be applied: 197 198

See [13.560]. A copy is available from the DSICA homepage at http://www.dsica.com.au.

790 [13.550]

Chapter 13 – Advertising

1.

responsible and moderate portrayal of alcoholic beverages – an advertisement must not show or encourage the excessive or rapid consumption of alcohol; encourage irresponsible or offensive behaviour related to the consumption or presence of alcohol; challenge or dare people to consume alcohol; or encourage the choice of a particular alcoholic beverage by emphasising its alcoholic strength (unless emphasis is placed upon its low alcohol strength) or its intoxicating effect;

2.

responsibility towards minors – an advertisement must not have strong or evident appeal to minors; depict a person who appears to be a minor unless they are shown in an incidental role in a natural situation (such as family socialising responsibly); or depict an adult who is under 25 years of age and appears to be an adult unless they are not visually prominent or they are not paid model or actor;

3.

responsible depiction of the effects of alcohol – an advertisement must not suggest the consumption or presence of an alcoholic beverage may create or contribute to a significant change in mood or environment; show the consumption or presence of an alcoholic beverage as a cause of or contributing to the achievement of personal, business, social, sporting, sexual or other success; imply or suggest that an alcoholic beverage shown as part of the celebration was a cause of or contributed to some success or achievement; suggest that the consumption of an alcoholic beverage offers any therapeutic benefit or is a necessary aid to relaxation;

4.

alcohol and safety – an advertisement must not show the consumption of an alcoholic beverage before or during any activity that for safety reasons requires a high degree of alertness or physical coordination, such as the control of a motor vehicle, boat or machinery or swimming.

Whether an advertisement conforms with the Code or not is to be judged “in terms of its probable understanding of the marketing communication by a reasonable person to whom the material is likely to be communicated, and taking its content as a whole”. It is possible for the ASB or ABAC Complaints Panel to reach different decisions about the same advertisement, since they will be judging according to their different Codes.

Motor vehicles [13.570] The Federal Chamber of Automotive Industries (FCAI) has developed a “voluntary code” governing advertising of motor vehicles. 199 Although this Code is described as “voluntary”, section 2.7 of the AANA Code of Ethics states that advertisements for motor vehicles “shall” comply with the FCAI Code. The Code requires advertisers to ensure that advertisements do not portray obvious unsafe driving practices which would breach traffic laws; people driving in excess of speed limits; people displaying practices contrary to law such as not wearing seatbelts, using hand-held mobile telephones while driving or not wearing a safety helmet while riding on a motorcycle; people driving under the influence of drugs or 199

This Code may be accessed via the Advertising Standards Bureau’s homepage at http:// www.adstandards.com.au under “Publications”.

[13.570] 791

Australian Media Law

alcohol contrary to law; people driving while apparently fatigued; and deliberate and significant environmental damage, particularly by off-road vehicles. In one upheld complaint, an advertisement depicted images of Lexus vehicles being driven with their fog lights on when there was no fog present, evidently because it made the vehicles look attractive, but contrary to the Australian Road Rules. In response to the determination, the advertiser acknowledged the breach, confirmed that the advertising in question had been discontinued and would not reappear and advised that appropriate action had been taken to ensure that all involved had been made aware of the complaint and the outcome to ensure that there was no repeat. While none of the other complaints were upheld, a number of points emerged from the ASB determinations: • regardless of where the car is depicted driving, the ASB must consider whether the driving would be unsafe if it were on a road or a road-related area; • the ASB will give a broad interpretation to driving practices or other actions when determining whether those practices or actions would breach traffic laws; and • advertisers will be expected to meet the intent and spirit of the FCAI as stated in the Explanatory Notes rather than just the substantive provisions.

Food and beverages [13.580] The AANA promulgated the AANA Food and Beverages Advertising and Marketing Communications Code in October 2006 after consultation with stakeholders including both State and federal health agencies. It draws on the International Chamber of Commerce’s International Code of Advertising Practice and relies upon the ICC’s Framework for Responsible Food and Beverage Communications (published in Paris 5 October 2006) for guidance of the self-regulatory authority. The Code provides that advertising and/or marketing communications for food and/or beverage products shall: • be truthful and honest and shall not be designed to be misleading or deceptive or otherwise contravene prevailing community standards; • not undermine the importance of healthy or active lifestyles nor the promotion of healthy balanced diets, or encourage what would reasonably be considered as excess consumption; • support health or nutrition claims by appropriate scientific evidence; • represent nutritional or health-related comparisons in a non-misleading and non-deceptive manner clearly understandable by an average consumer; • not make reference to consumer taste or preference tests in any way that might imply statistical validity if there is none, nor otherwise use scientific terms to falsely ascribe validity to advertising claims; • only make any claims relating to material characteristics such as taste, size, content, nutrition and health benefits that are specific to the promoted products and accurate in all such representations; 792 [13.580]

Chapter 13 – Advertising

• if appearing within segments of media devoted to general and sports news and/or current affairs, not use associated sporting, news or current affairs personalities (live or animated) without clearly distinguishing between commercial promotion and editorial or other program content; and • not portray products not intended or suitable as substitutes for meals as such. There is a general requirement that advertising and/or marketing communications for food and/or beverage products must comply with the AANA Advertiser Code of Ethics and the AANA Code for Advertising and Marketing Communications to Children. There are specific provisions dealing with communications directed towards children for food and beverage products. These provide that such communications: • are to be particularly designed and delivered in a manner to be understood by those children; • shall not be misleading or deceptive in relation to any nutritional or health claims, nor employ ambiguity or a misleading or deceptive sense of urgency, nor feature practices such as price minimisation inappropriate to the age of the intended audience; • not improperly exploit children’s imagination in ways which might reasonably be regarded as being based upon an intent to encourage those children to consume what would be considered, acting reasonably, as excessive quantities of the product/s; • not imply that possession or use of a particular product will afford physical, social or psychological advantage over other children, or that non-possession of the product would have the opposite effect; • not aim to undermine parents and/or other adults responsible for a child’s welfare in their role of guiding diet and lifestyle choices; • not include any appeal to children to urge parents and/or other adults to buy particular products for them; and • not feature ingredients or premiums that are not an integral element of the product/s or service/s being offered.

Advertising to children [13.590] The AANA Code for Advertising and Marketing to Children contains several provisions that are similar to those in the children’s sections of the Food and Beverages Code, although naturally they are of wider scope. The object of this Code is to ensure that advertisers develop and maintain a high sense of social responsibility in advertising to children in Australia. The Code provides that advertising or marketing to children must not contravene prevailing community standards; must not mislead or deceive children or be ambiguous; and must fairly represent the product, any features and any need for accessories, in a manner that is clearly understood by children. The advertisements or marketing must not include sexual imagery or suggest children are sexual beings; or portray images or events which depict unsafe uses of a product or unsafe situations which may encourage children to engage in dangerous activities or advertise products which have been officially declared unsafe or dangerous by an authorised Australian government authority. They must not portray images or [13.590] 793

Australian Media Law

events in a way that is unduly frightening or distressing to children; or demean any person or group on the basis of ethnicity, nationality, race, gender, age, sexual preference, religion or mental or physical disability. The advertisements or marketing must not undermine the authority, responsibility or judgment of parents or carers; must not state or imply that a product makes children who own or enjoy it superior to their peers; and must not state or imply that persons who buy a product are more generous than those who do not. Prices, if mentioned, must be accurately presented in a way which can be clearly understood by children and not minimised by words such as “only” or “just”. Any disclaimers, qualifiers or asterisked or footnoted information must be conspicuously displayed and clearly explained to children. Any competitions must contain a summary of the basic rules for the competition, clearly include the closing date for entries and make any statements about the chance of winning clear, fair and accurate. Advertisements or marketing which include or refer to a premium (that is, anything offered free or at a reduced price conditional upon the purchase of a regular product) should not create a false or misleading impression in the minds of children about the nature or content of the product or that the product advertised is the premium rather than the product, and must make the terms of the offer clear as well as any conditions or limitations. Advertisements or marketing to children must not be for, or relate in any way to, alcoholic drinks or draw any association with companies that supply alcoholic drinks. In relation to food and/or beverage advertisements, this Code simply states that advertisements should not encourage or promote an inactive lifestyle combined with unhealthy eating or drinking habits; and must not contain any misleading or incorrect information about the nutritional value of that product. There is also a general requirement that advertisements or marketing to children must comply with the AANA Advertiser Code of Ethics. In addition, advertisers may agree to “initiatives” which provide further guidance on advertising to children. For example, the major fast food restaurants developed, in conjunction with the AANA, the Australian Quick Service Restaurant Industry Initiative for Responsible Advertising and Marketing to Children. 200 This initiative is designed to establish a framework to: • to ensure that only food and beverages that represent healthier choices are advertised to children; and • to help parents and guardians make informed product choices for their children. The companies that signed up to the initiative, which included Hungry Jack’s, KFC, McDonald’s, Pizza Hut and Red Rooster, agreed that all marketing communications and advertising of food and beverage combinations to children under the age of 14 would represent healthier lifestyle choices, as determined by a defined set of nutrition criteria for assessing children’s meals and physical activity. Companies further agreed to ensure nutrition information is available on their websites or upon request in restaurants and, wherever practical, displayed on packaging. 200

See also the Australian Food and Grocery Council’s Responsible Children’s Marketing Initiative.

794 [13.590]

Chapter 13 – Advertising

The effectiveness of self regulation has been questioned after research found that fast food advertisements on television increased overall after the initiative came into effect. 201 One key limitation was the narrow range of fast food advertisements covered by the initiative, namely those advertisements deemed by industry to be directed primarily to children. The initiative therefore does not apply to the advertisement of family meals, which were not subject to any nutritional assessment under the initiative and yet were clearly intended for children’s consumption. 202

Environmental claims in advertising and marketing code [13.600] Advertising or marketing which makes an environmental claim must comply with a number of requirements. These include a requirement that they not be misleading or deceptive, vague, ambiguous or unbalanced and must display any disclaimers or limitations prominently and in clear, plain and specific language. They must also be supported by evidence that is current and reflects legislative, scientific and technological developments, not imply that a product or service has been voluntarily adopted if that practice has been legally mandated and communicate any scientific terminology, technical language or statistics in a manner are readily understood by an audience to whom it is directed. Publication of research results must identify the research and source reference unless there is an obligation of confidence or compelling commercial reason not to do so. Claims of a genuine benefit to the environment must be relevant, specific and clearly explained the significance and not overstate the claim expressly or by implication. In comparative advertisements such claims must be relevant and balanced. Environmental claims must not imply that a product or service is more socially acceptable on the whole nor reduce the importance of non-environmental attributes or detriments. There is an overall requirement that environmental claims must be substantiated and verifiable with supporting information that includes sufficient detail to allow evaluation of the claim.

Other organisations [13.610] Advertising may also be covered in the codes of practice of organisations like “Free TV Australia”, “Commercial Radio Australia”, “Australian Subscription Television and Radio Association” 203 and the Weight Management Industry.

201

L Hebden et al, “Advertising of fast food to children on Australian television: the impact of industry self-regulation” (2011) 195(1) Medical Journal of Australia 20.

202 203

Hebden et al (2011) 195(1) Medical Journal of Australia 20 at 23. See [14.940]-[14.970].

[13.610] 795

Regulation of the Media

14

[14.10] INTRODUCTION .................................................................................... 799 [14.20] REGULATION OF THE BROADCASTING MEDIA ................................. 805 [14.20] Broadcasting legislation ........................................................................ 805 [14.30] Rationale for the regulation of broadcasting services ........................ 806 [14.40] Objects and regulatory policy .............................................................. 810 [14.50] What is a broadcasting service? ........................................................... 811 [14.60] Categories of broadcasting services ..................................................... 813 [14.70] [14.80] [14.90] [14.100] [14.110] [14.120] [14.130] [14.140] [14.150]

[14.160] [14.170]

[14.240]

[14.400]

[14.520]

National broadcasting services .......................................... 814 Commercial broadcasting services ..................................... 816 Community broadcasting services ..................................... 816 Subscription broadcasting services .................................... 818 Subscription narrowcasting services .................................. 818 Open narrowcasting services ............................................. 819 International broadcasting services .................................... 821 Determination and clarification of criteria .......................... 822 Obtaining an opinion on service category ......................... 823 Spectrum planning and management .............................................. 824 Planning the broadcasting services bands ........................................ 825 [14.170] Planning responsibilities of the ACMA ................................ 825 [14.220] Reservation of capacity for national and community broadcasting services ...................................... 829 [14.230] Alternative uses of broadcasting services bands ................. 829 Planning for the conversion to digital television transmission ........ 830 [14.240] What is digital television transmission? .............................. 830 [14.250] The government’s response to digital television technology ........................................................................ 831 [14.260] Establishing and regulating the conversion to digital television ........................................................................... 832 [14.290] Providing services that are additional to the simulcast service ............................................................................... 835 [14.380] Digital subscription television services ............................... 839 [14.390] Digital community television services ................................ 839 Planning for digital radio transmission .............................................. 840 [14.410] Potential advantages of digital radio over analog radio ...... 841 [14.420] Options for the introduction of digital radio in Australia .... 841 [14.430] Technical issues ................................................................. 843 [14.440] Who can provide digital radio services? ............................. 844 [14.450] Transmission arrangements – processes for owning the transmission licence and accessing multiplex capacity ............................................................. 845 [14.490] What services can be provided? ......................................... 851 [14.500] Moratorium ....................................................................... 852 [14.510] Commencement and operation ........................................ 852 Obtaining a licence to provide a broadcasting service ................... 854 [14.520] Commercial television broadcasting services ..................... 854 [14.580] Commercial radio broadcasting services ............................ 861 [14.620] Community broadcasting services ..................................... 862 797

Australian Media Law [14.660] [14.670]

[14.710]

[14.820] [14.830] [14.840] [14.930]

Subscription television broadcasting services ..................... Subscription radio broadcasting services and narrowcasting services ....................................................... [14.680] Restrictions on the allocation of licences ............................ Licence conditions ............................................................................... [14.720] Special licence conditions imposed on all broadcasting services by Sch 2 of the BSA .............................................. [14.730] Specific licence conditions imposed on each category of broadcasting service by Sch 2 of the BSA ........ [14.810] Conditions imposed by the Australian Communications and Media Authority .............................. Duration and renewal of broadcasting service licences .................. Transfer and surrender of broadcasting service licences ................. Remedies for breach of the licensing provisions .............................. [14.850] Broadcasting services requiring individual licences ............. [14.910] Broadcasting services provided under a class licence ......... Programming and content regulation .............................................. [14.930] Sources of content regulation ............................................ [14.940] Program standards ............................................................ [14.950] Codes of practice .............................................................. [14.960] Parliament’s power in relation to program standards and codes of practice ........................................................ [14.970] Authorisation by the Australian Competition and Consumer Commission .............................................. [14.980] Enforcement of program standards and codes of practice ......................................................................... RC, X 18+ and R 18+ programs .........................................................

865 865 866 867 868 868 874 875 876 877 878 881 882 882 883 884 887 887 887

[14.990] 888 [14.1000] Australian content on commercial television broadcasting services ....................................................................... 888 [14.1010] Rationale for Australian content requirements .................... 889 [14.1020] The Transmission Quota .................................................... 890 [14.1030] The Broadcasting Services (Australian Content) Standard 2005 .................................................................. 891 [14.1110] Australian content in commercial television advertising ..... 896 [14.1120] The Australia-United States Free Trade Agreement and the Australian Content Standard ................................. 897 [14.1150] Australian content on subscription television ................................. 899 [14.1160] Cash for comment ............................................................................ 902 [14.1170] Local content in regional areas ........................................................ 904 [14.1180] Local content requirements for regional commercial television ........................................................................... 904 [14.1190] Local content and local presence requirements for regional commercial radio ............................................ 907 [14.1230] The anti-siphoning regime ............................................................... 912 [14.1230] The current regime ........................................................... 912 [14.1240] Anti-hoarding measures .................................................... 916 [14.1250] Reform of the anti-siphoning regime ................................. 917

[14.1260] REGULATION OF DATACASTING ..................................................... 919 [14.1260] What is datacasting? What are datacasting services? .................... 919 [14.1270] Datacasting: The regulatory regime ................................................ 921 [14.1270] Datacasting licences and datacasting transmitter licences ............................................................................. 921 798

Chapter 14 – Regulation of the Media [14.1280] [14.1300] [14.1310] [14.1320] [14.1330]

Datacasting content .......................................................... Datacasting conditions ...................................................... Codes of practice and standards ........................................ Remedies for breach of the licensing provisions ................. Datacasting: the experience to date ..................................

923 926 926 927 927

[14.1350] THE AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY ....................................................................................... 930 [14.1360] [14.1370] [14.1380] [14.1390] [14.1420]

Establishment, membership and staffing ........................... Functions .......................................................................... Powers .............................................................................. Information gathering ....................................................... Appeals from decisions of the Australian Communications and Media Authority ............................................. [14.1430] Complaints about broadcasting services and datacasting services ...........................................................

930 931 932 932 935 935

[14.1460] REGULATION OF THE PRINT MEDIA ............................................... 937 [14.1470] Printing and newspapers legislation ................................................ 938 [14.1480] Imprint requirements for documents, papers and books .... 938 [14.1490] Imprint and registration requirements for newspapers ....... 939

[14.1500] The Press Council .............................................................................. 939 [14.1500] [14.1510] [14.1520] [14.1530]

Establishment and membership ......................................... Aims and objects of the Press Council ................................ Standards of practice ......................................................... Complaints about the print media .....................................

939 940 940 942

[14.1580] REGULATION OF JOURNALISTS ....................................................... 944 [14.1590] The Code of Ethics ............................................................................ 945 [14.1600] Enforcement procedures .................................................................. 946

Introduction [14.10] Before discussing the regulation of the media, it is critical to define what is meant by “the media”. This used to be a straightforward and somewhat self evident brief. The media comprised two main forms: the print media, consisting of newspapers and magazines, and the broadcasting (or electronic) media, consisting of television and radio stations. Other means of communication, such as telecommunications and computers, performed different and separate tasks – respectively, fixed line or mobile voice communications and data processing – and were not regarded as part of the mainstream media nor regulated as such. However, the remarkable technological changes of recent decades have blurred the erstwhile neatly defined boundaries between these various means of communication. This phenomenon, dubbed “convergence”, has made it far more difficult to identify what constitutes “the media”. In the words of Cunningham and Turner: To think of the media through the traditional distinction between the electronic (television and radio) and print media (newspapers and magazines) is no longer sufficient. The spread of information-based systems of delivery such as the home PC; the introduction of digital technologies in broadcasting and the cinema; the globalisation of media and communications markets; the convergence of aspects of broadcasting, information services and [14.10] 799

Australian Media Law telecommunications; and the international tendency towards an unregulated commercial market for media and communications have all contributed to the formation of a highly volatile and altered media landscape. 1

The technological advances most responsible for bringing about these changes to the media landscape are the advent of digital transmission, the arrival of the internet and the emergence of social media. In contrast to analog technology, which captures and stores information such as audio and visual signals as representations and transmits them as a continuous stream, 2 digital technology converts discrete bits of information into a binary code, stores and transmits them as numbers, then reassembles them into images and sounds at great speed. 3 While analog data is actually more accurate than digital data, 4 the latter is more easily manipulated, more compact and simpler to store, better preserved and easily moved between different devices. 5 The result is that content that once had to be transmitted over a particular piece of hardware is no longer so constrained. Having been reduced to a binary code, the same content can be transmitted over many different devices. Examples of the confluence of what were once discrete devices abound. Books, for centuries available only in print, can now be downloaded and read on portable ebook readers. Mobile phones, initially designed to send and receive telephone calls (the traditional function of a telecommunications device), can also send and receive text, take photographs and video footage, and, if connected to the internet, can receive television and radio programs and access web pages etc. Telephone calls can be made over the internet using internet telephony software. Programs broadcast by radio stations can be accessed via the internet as well as on traditional radio receivers. Daily newspapers all operate websites on which they post the news stories that appear in their newspapers, as well as news items that break throughout the day. Televisions and computers are the most recent platforms to converge. Internet protocol television (IPTV) uses a broadband internet connection to deliver television services to a television set, including live simulcasts of broadcast programs, catch-up television programs that have already been broadcast on conventional television stations, programs on demand and interactive applications. 6 The high speed broadband that will result from the roll out of the national broadband network throughout Australia will undoubtedly facilitate the take up of this latest application. 7 1

S Cunningham and G Turner, The Media and Communications in Australia (2002) p 3. See also T Barr, Newmedia.com.au: The Changing Face of Australia’s Media and Communications (2000).

2

The word “analog” is used since what is received is “analogous” to, or a representation of, the original data/ signal. For example, a recording on a cassette recorder is a collection of magnetised areas on a reel of plastic tape which represent an analogy of the original sounds: http://www.explainthatstuff.com/analog-anddigital.html.

3 4

At http://www.techterms.com/definition/analog. At http://www.explainthatstuff.com/analog-and-digital.html. This is because digital technology only estimates analog data using ones and zeros. At http://www.techterms.com/definition/analog.

5 6

7

See Australian Communications and Media Authority, IPTV and Internet Video Services: The IPTV and Internet Video Market in Australia (April 2008); J Bosland, “Regulating for Local Content in the Digital Audiovisual Environment: A View From Australia” (2007) 18(3) Entertainment Law Review 103 at 108-110; IPTV Australia, What is IPTV? http://www.iptv.com.au/what-is-iptv/. See T Barr, IPTV: Glimmers of Hope (Paper presented at Communications Policy & Research Forum 2009,

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These technological developments have had a significant impact on the nature and reach of media content. For instance, the interconnectedness of the internet has enabled content to be created and widely disseminated by individuals. Examples include: YouTube, which markets itself as a worldwide video sharing community; social networking sites such as Facebook, Instagram and Snapchat; Twitter; and blogging, which allows individuals to create or access websites to post observations and opinions, upload audio-visual material and engage in discussions on an infinite variety of topics. The ability of individuals to communicate on this scale, without the interposition of a gatekeeper to control, filter or censor the flow of information, 8 is often said to have spawned the rise of the citizen journalist. While this term is used overenthusiastically, 9 it is certainly the case that the creation and dissemination of content is no longer the exclusive province of the established media. The internet also facilitates interactivity, whether between persons, or between persons and programs, such as a computer game. Communications platforms that are inherently passive, such as broadcast television, have recognised this increased demand for engagement and have turned to mobile phones or the internet as a means of procuring an element of interactivity. 10 Furthermore, whereas commercial television and radio stations are restricted to broadcasting their content within specific licence areas, the internet has no geographic boundaries; information that is uploaded on the internet is capable of being downloaded all over the world. Finally, the ability to store information that is afforded by digital technology means that consumers are becoming less tied to the programming schedules of television and radio stations. For their part, broadcasters are becoming increasingly deferential to the consumers’ desire to control what they view and when they view it. 11 As the ability to customise one’s viewing preferences increases, audiences will become increasingly fragmented. The changes wrought by technological convergence have also produced an “ownership convergence”. Unless precluded by regulation from controlling certain combinations of media, corporate entities that originally specialised in one form of media – such as television, radio, newspapers or magazines – have tended to either diversify into other forms of media or to merge with companies that specialise in other forms of media. 12 The fact that various forms of content – voice, data, text, audio and visual – can now be delivered over a number of platforms has implications for how the media are regulated.

8 9

10

11

12

Sydney, 19-20 November 2009), p 131 at http://www.networkinsight.org/verve/_resources/CPRF_2009_ papers.pdf. This is not always the case. Some sites are moderated and illegal or defamatory content excised. While the internet undoubtedly enables individuals to disseminate eye witness accounts of newsworthy events soon after they occur (whether verbally or via video footage), or post comments and opinions on news and current affairs, most individuals do not undertake investigative journalism. For example, shows such as the ABC’s Q & A encourage viewers to text responses on the topic under discussion and an array of those responses are displayed on the television screen while the program is running. Reality television programs call on viewers to cast votes for contestants via the internet, SMS or telephone, while newspapers and radio stations frequently run telephone polls to gauge audience opinion. For example, the ABC offers iView, which allows viewers to watch certain ABC programs at the time of their choosing for 14 days after they have been screened on ABC television. Certain ISPs provide unmetered access to iView. Prime examples include News Corp, 21st Century Fox, Time Warne and Viacom, which are among the world’s largest media conglomerates.

[14.10] 801

Australian Media Law

However, as is often the case with industries that are affected by rapid technological developments, the regulatory regime has not kept pace with these changes in the media landscape. The Australian media are still regulated according to the platform over which the content is delivered: radio and television by the Broadcasting Services Act 1992 (Cth) (BSA); telecommunications by the Telecommunications Act 1997 (Cth); and the print media by laws of general application supplemented by a degree of self-regulation. Datacasting is regulated by Sch 6 of the BSA. Online services and services delivered over convergent devices are subject to regulation under Schs 5 and 7 of the BSA, but only in relation to offensive content. Successive Governments have acknowledged that the current regulatory framework is outmoded. 13 For example, a new “television” service can commence and be delivered via the internet without any legal requirement that it be licensed and with very few restrictions on content, yet commercial television broadcasting remains subject to a licensing regime and to numerous content restrictions and obligations. 14 During its time in office, the Gillard Government commissioned two significant reviews of Australia’s media policy and regulation. 15 The first was an inquiry conducted by the Hon R Finkelstein QC which produced the Report of the Independent Inquiry into the Media and Media Regulation. That review focused primarily, though not exclusively, on the print media. It identified a number of problems with the status quo: • the existing mechanisms of self-regulation that are available to the press have not secured the degree of accountability that is appropriate for a democracy; • the Australian Press Council suffers from serious structural constraints in so far as it does not have the necessary powers or funds to discharge its functions and “publishers can withdraw when they wish and alter their funding as they see fit”; • the Australian Communications and Media Authority’s processes are cumbersome and slow; • legal proceedings against the media offer redress for legal wrongs, not for the more common complaints about inaccuracy, unfairness or invasion of privacy; • legal proceedings are protracted, expensive and adversarial. The report proposed that the Australian Press Council be replaced by a new statutory body, a News Media Council, which would be funded by the government but be independent of it. The Council would set journalistic standards across all news media platforms in consultation with the industry and deal with complaints from the public when those standards are breached. 13 14 15

See also: Australian Communications and Media Authority, Broken Concepts: The Australian Communications Landscape (August 2011). Australian Government, Convergence Review, Final Report (2012), p 1. For academic commentary on these reviews see: D Lindsay, “Broadcast Regulation in the Broadband Era” (2012) 62(3) Telecommunications Journal of Australia 1; JM Fernandez, “The Finkelstein Inquiry: Miscarried Media Regulation Moves Miss Golden Reform Opportunity” (2013) 4 The Western Australian Jurist 23; T Flew and A Swift, “Regulating Journalists? The Finkelstein Review, the Convergence Review and News Media Regulation in Australia” (2013) 2(1) Journal of Applied Journalism and Media Studies 181; S Maras, “Media Accountability: Double Binds and Responsibility Gaps” (2014) 8(2) Global Media Journal (Australian edition) 1.

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The other inquiry was conducted by the Convergence Review Committee, which was tasked to “review Australia’s media and communications regulation in light of emerging technology and industry trends”. The Committee handed down its Convergence Review Report in March 2012. It proposed that there be a shift away from regulation that is defined by the platforms on which services are delivered, in favour of regulation that is “light touch” and targets “significant enterprises”: Under this approach, the type of content, the size of audience, and revenue would determine whether an enterprise is regulated. 16

Another main recommendation of the Review was the removal of the broadcasting licence regime, in view of its outdated reliance on geographic boundaries. Notwithstanding its general default position in favour of deregulation, the Committee found that continued government intervention was justified in the public interest in three areas: to secure diversity of media ownership and control, 17 to ensure that there are appropriate media content standards across all platforms 18 and to procure adequate production and distribution of Australian and local content. Although both these inquiries made significant recommendations for change, to date there has been no “root and branch” reform of the media. 19 Any comprehensive changes to Australia’s communications legislation must grapple with a number of interrelated issues. The first is whether the traditional rationales for regulating the media remain viable and convincing in this converged environment and, if not, whether there is still a cogent, defensible pretext for regulating the media. 20 If media regulation remains justifiable, the second issue to be addressed is what form it should take. One possibility is to continue to regulate the traditional media in the same manner and to the same extent that it is currently regulated, but to extend that regulation to encompass new forms of media. While this 16

Australian Government, Convergence Review Report, Final Report (2012) p 1.

17

The recommendations of the Convergence Review regarding media ownership and control are discussed in [15.530]. Unlike the Finkelstein Report, the Convergence Review recommended that journalistic standards for professional news and commentary be enforced by an industry led body, not by a publicly funded statutory body. It recommended that a new communications regulator be established to replace the ACMA and be responsible for all compliance matters related to media content standards (except for news and commentary), including responsibility for administering a new national classification scheme.

18

19

20

The Gillard government introduced six media reform bills into parliament in 2013 in response to the Convergence Report: the Broadcasting Legislation Amendment (Convergence Review and Other Measures) Bill 2013, the Public Interest Media Advocate Bill 2013, the Broadcasting Legislation Amendment (News Media Diversity) Bill 2013, the News Media (Self-regulation) (Consequential Amendments) Bill 2013, the News Media (Self-regulation) Bill 2013 and the Television Licence Fees Amendment Bill 2013. However, only the Broadcasting Legislation Amendment (Convergence Review and Other Measures) Act 2013 and the Television Licence Fees Amendment Act 2013 were enacted and neither made significant changes to the way in which the media are regulated. The traditional rationales for media regulation are outlined in [14.30]. The Convergence Committee was directed to advise on whether the existing regulatory objectives remain appropriate in a converged environment. In its report, the Committee acknowledged the existence of a view that no regulation is necessary in a global digital world, but rejected the idea that convergence has completely removed the need for regulation in the public interest: at 1. However, as explained, it did take the view that the development of the digital economy should be left to the market and that the government should intervene and impose regulation only where intervention is necessary to correct a deficiency in the market or to fill a gap left by the market: at 3.

[14.10] 803

Australian Media Law

approach would achieve consistency across the various media platforms, it is likely to prove problematic on a number of fronts. At the most fundamental level, the organisations that provide access to the internet – Internet Service Providers (ISPs) – are not simply online counterparts of organisations that provide broadcasting services. Whereas broadcasters are licensed by the BSA and are generally provided with access to the means of delivering their services, the internet developed independently of government and access to it is uncontrolled. ISPs do not control the content that appears on their services in the same way that broadcasters control what is broadcast on their services, and even if they did, it would not be possible to impose or enforce content regulation on ISPs located offshore. Moreover, the way in which the internet and mobile devices operate means that many of the rules imposed on broadcasters are simply not amenable to being applied in those contexts. For example, a broadcaster that provides a linear schedule of programs can be made to provide a fixed amount of Australian content, but such a quota cannot be sensibly imposed on new forms of media which enable the consumer to select the programs. Other significant issues include: whether classification laws can be sensibly applied and enforced irrespective of how the content is delivered; 21 whether IPTV should be subject to the anti-siphoning rules; and whether restrictions on advertising can be applied to the internet. There is also an issue as to whether regulatory parity is apposite where different platforms have different levels of impact, different accessibility for users or are not subject to geographic constraints. 22 If it is not feasible to graft the new media into the regulatory regime imposed on the traditional media, consideration might be given to whether it would be appropriate to attempt to achieve a level playing field by de-regulating the old media. This was the position advocated by the Convergence Review. In view of the control that consumers increasingly possess over what and when they listen to or view programs, a degree of de-regulation of the traditional media seems inevitable. The extent to which de-regulation is appropriate will depend on what outcomes are sought to be achieved by regulation and whether these outcomes can be achieved by market forces. If neither of these options is pursued, and discrepant regulation remains, the government will need to ground that regulation in an enduring and justifiable rationale. There are two other challenges that need to be thrown into the mix. First, any attempt to regulate the media in the form in which it exists in 2015 is likely to suffer the same fate as the current regulatory regime; it will just outdate itself, given the likelihood that unforeseen technological developments will continue apace. The challenge is to create a regulatory regime that can accommodate change without the need for regular, large scale review and 21

22

The Australian Law Reform Commission has conducted a review of classification in Australia in light of changes in technology, media convergence and the global availability of media content. The terms of reference required the Commission to inquire into and report on matters relating to the extent to which the Classification (Publications, Films and Computer Games) Act 1995 (Cth), State and Territory Enforcement legislation, Schs 5 and 7 of the BSA and the Intergovernmental Agreement on Censorship and related laws continue to provide an effective framework for the classification of media content in Australia. The ALRC recommended that a new National Classification Scheme be enacted to regulate the classification of media content and that the scheme should be based on a new Act, the Classification of Media Content Act: Australian Law Reform Commission, Classification – Content Regulation and Convergent Media, Report No 118 (2012). Australian Government, Convergence Review, Discussion Paper, Layering, Licensing and Regulation, p 7.

804 [14.10]

Chapter 14 – Regulation of the Media

amendment. It would seem that the only way to achieve this is to ensure that regulation is not platform specific. The other factor is the unstated, but very real, power of media magnates to influence government policy. Given the willingness of successive governments to accede to their demands – the staunch protectionism shown to commercial television broadcasters is the prime example – media policy may continue to be developed with the interests of the incumbents in mind, rather than in the public interest. Having briefly examined the need for a new regulatory framework, this chapter must now confine itself to a discussion of the existing regulatory regime. The greater part of this chapter is devoted to describing the regulation of the Australian broadcasting media. Television and radio broadcasters are subject to detailed statutory control, both in respect of access to the legal right to operate a service and the content of what is broadcast. This legislative regime has become even more dense and complex with the advent of digital television and radio. Following this, the regulation of datacasting services will be discussed. The regulation of online content and content delivered to mobile devices will receive only cursory coverage in this chapter, as the regulation relates primarily to offensive content and is discussed in Chapter 9. This chapter will then address regulation of the print media which, unlike broadcasting, is the subject of minimal government interference. The chapter concludes with a section on the regulation of journalists. 23

Regulation of the broadcasting media Broadcasting legislation [14.20] Broadcasting in Australia is regulated by the Commonwealth. Section 51(v) of the Commonwealth Constitution empowers the Commonwealth Parliament to make laws with respect to “postal, telegraphic, telephonic and other like services”. 24 This provision has been interpreted as giving the Commonwealth Parliament legislative power over radio and television broadcasting, including the establishment of services, the choice of persons who may make use of such services, the conditions of use (including the preparation and production of programs), and ownership and control restrictions. 25 The power to regulate broadcasting is subject to constitutional constraints. The most significant is the implied freedom of political communication, which constrains the legislative power of both federal and State parliaments and overrides any inconsistent principle of the common law. 26

23 24 25

26

A detailed discussion of the Radiocommunications Act 1992 and the Telecommunications Act 1997 is beyond the scope of this chapter. Sections 51(i), (xx), (xxix) and 122 of the Constitution could also be relied upon to regulate broadcasting. R v Brislan; Ex parte Williams (1935) 54 CLR 262; Jones v Commonwealth (1966) 112 CLR 206; Herald & Weekly Times Ltd v Commonwealth (1966) 115 CLR 418. For a discussion of the limits of the communications power see: H Raiche, “The Communications Power: The Real Threat to States’ Rights?” (2001) 20(1) Communications Law Bulletin 14. The implied freedom of political communication is discussed in Chapter 2.

[14.20] 805

Australian Media Law

The Australian broadcasting industry is primarily regulated by the BSA. 27 The BSA establishes the framework for the structure of the broadcasting industry, determines which services are regarded as “broadcasting services” and lays down the concepts which govern broadcasting regulation. As noted earlier, amendments to the BSA have widened its scope to include the regulation of datacasting services and certain aspects of content provided over the internet and mobile devices. The BSA is also supplemented by a number of legislative instruments. Other significant Acts affecting broadcasters include: the Australian Broadcasting Corporation Act 1983 (Cth) and the Special Broadcasting Service Act 1991 (Cth), which respectively establish and regulate the Australian Broadcasting Corporation (ABC) and the Special Broadcasting Service (SBS); the Radio Licence Fees Act 1964 (Cth) and Television Licence Fees Act 1964 (Cth), which provide for the payment of annual licence fees by commercial broadcasting licensees; 28 and the Australian Communications and Media Authority Act 2005 (Cth) which establishes the regulator. The BSA also intersects with the Radiocommunications Act 1992 (Cth) and, to a lesser extent, the Telecommunications Act 1997 (Cth).

Rationale for the regulation of broadcasting services [14.30] The Australian broadcasting media is subject to direct and detailed statutory regulation. The phenomenon of extensive government involvement in broadcasting is not peculiar to Australia. It has been noted that the most striking commonality between broadcasting structures in the capitalist world is the active role of the State, 29 although recent years have witnessed a degree of de-regulation in countries such as the United States and the United Kingdom. Various justifications have been advanced to explain why governments have consistently adopted an interventionist approach to the broadcasting media. 30 The primary justification for the regulation of broadcasters was traditionally linked to the way in which broadcasting services were transmitted and received. Until the mid-1990s, all radio and television programs were delivered in analog mode via the radiofrequency spectrum, which is regarded as a national resource belonging to the community at large. In view of the fact that the number of frequencies available for broadcasting was limited and that communication through this medium was not inherently available to all, the government assumed responsibility for ensuring that spectrum was allocated in a fair and systematic manner in the interests of the public. Today, the scarcity justification for broadcasting regulation is less 27 28

29 30

The BSA replaced the Broadcasting Act 1942 (Cth) which had regulated broadcasting in Australia for 50 years (although it had a number of different names). Commercial broadcasters do not pay for their access to the radiofrequency spectrum. Instead, they pay licence fees, which are a percentage of their gross annual revenue which is primarily gained from advertising. Part 14A of the BSA contains provisions governing the administration of these annual licence fees. H Maher, “Broadcasting Regulation: The Eroding Bases” in D Turbayne (ed), The Media and Politics in Australia (1980), pp 5-8. Some of these justifications are discussed in D Brennan, “Printing in England and Broadcasting in Australia: A Comparative Study of Regulatory Impulse” (2000) 22 Adelaide Law Review 63. See also: Hon R Finkelstein QC, Report of the Independent Inquiry into the Media and Media Regulation (February 2012) at [6.25]-[6.29]. For a critique of the traditional justifications for broadcasting regulation see: L Hitchens, Broadcasting Pluralism and Diversity: A Comparative Study of Policy and Regulation (2006) Ch 2.

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compelling. In Australia, the opening up of the FM band to radio broadcasting services and the commencement of ultra-high frequency (UHF) transmission in the 1980s, the development of cable, satellite and microwave distribution services as alternative delivery methods, the advent of digital radio and television transmission and cessation of analog television transmission, and the availability of broadband internet, which is capable of delivering television and radio content to computer screens, mean that there are no longer significant technological restraints on the number of broadcasting services that can be provided. 31 In recognition of the fact that the radiofrequency spectrum is now only one way in which television and radio services can be delivered to consumers, the regulatory regime established by the BSA purports to apply to all broadcasting services irrespective of their method of delivery. 32 However, as will be seen throughout this chapter, the BSA distinguishes between technologies in a number of contexts, thereby qualifying its claim to be technology neutral. The decline of the scarcity theory created a need for a more compelling rationale for the regulation of broadcasters. Governments began to emphasise the significant role played by the broadcasting media in disseminating news and information, a role described by members of the High Court as vital to the maintenance of a free and democratic society. 33 This role is not a passive one, as broadcasters select what information is presented to the public and from what perspective. The broadcasting media therefore play a pivotal part in setting the agenda for public debate and in shaping public opinion on issues. 34 Broadcasters also exercise a constant and cumulative influence over Australian culture, social mores and standards of conduct through their programs and advertisements. This unique capacity to influence public opinion and public values has resulted in broadcasting licences being perceived as being in the nature of a public trust which entitles a high degree of government control and accountability. Ownership of a licence is a privilege not a right. The licensee is therefore responsible to use its power with due regard to proper standards of conduct and not to abuse the privilege which it enjoys. 35 Successive Australian governments have relied on this public trust theory as a justification for regulation. 36 The notion that a broadcasting licence is in the nature of a public trust is often resisted by broadcasters, who regard themselves as running a business and as having a right to conduct that business in such a way as to maximise profits. 31

The efficiency gains secured by the conversion to digital technology delivered Australia a significant “digital dividend” at the end of 2013. However, this abundance is tempered by the reality that wireless broadband and mobile telephones have increased the demand for spectrum.

32

This is to be compared with the Broadcasting Act 1942 (Cth) in which to “broadcast by radio or televise” was defined in a technology-specific manner to mean the operation of a radiocommunications transmitter for the purpose of transmitting radio or television programs to the general public: s 4(1). Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 382 per Toohey and Gaudron JJ. Some submissions to the Finkelstein Inquiry asserted that the print media, not the broadcast media, are the political agenda-setters and there is cogent evidence that this is the case: Hon R Finkelstein QC, Report of the Independent Inquiry into the Media and Media Regulation (February 2012) at [6.28]. As the report notes, this rationale for regulating broadcasters would be fiercely resisted if it were propounded as justification for regulating the print media. Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 348-349 per Mason CJ. See also Australian Communications and Media Authority v Radio Station 2UE Sydney Pty Ltd (2009) 178 FCR 199; [2009] FCA 754 especially at [179]. When introducing the first Bill relating to television, the Minister for Post and Telegraphs, whilst acknowledging that commercial television is a business undertaking involving the expenditure of large sums of money,

33 34

35

36

[14.30] 807

Australian Media Law

The BSA explicitly adopts the “degree of influence” approach as the basis for regulating the broadcasting media in Australia. However, in recognition of the fact that not all broadcasting services enjoy the same power to shape and influence community views, the Act creates different categories of broadcasting services and imposes different levels of regulatory control on each, according to the degree of influence they are able to exert in shaping community views. 37 The highest level of regulation is applied to commercial broadcasting services, as these services are perceived to exert the strongest influence over Australian culture. At the other end of the spectrum are narrowcasting services, which play a minor role in shaping views in Australia and which are therefore subject to minimal regulation. In some cases, different levels of regulation apply between television services and radio services. Although commercial television and radio broadcasters remain significant and pervasive forms of media, both in terms of news and entertainment, their relative influence is waning. This is attributable to a number of factors. The addition of new free-to-air television channels made possible by the conversion to digital transmission 38 has the potential to dilute the relative influence of each individual channel. Digital radio has also spawned new stations. A second factor is the advent of subscription broadcast television in the mid-1990s. Approximately 31% of households currently subscribe to subscription television 39 and this has fragmented television audiences. However, the most significant threat to the power and influence of free-to-air broadcast television is the alternative forms of television services that are now available and becoming more mainstream, namely, internet television and internet protocol television (IPTV), which are providing viewers with options other than scheduled free-to-air television broadcasts. Internet television simply describes traditional television that is broadcast over the internet. 40 It can be received free of charge on any computer that has a broadband connection to the internet. It can also be received by “television sets that have Ethernet connectors that can be tied into a home’s local area network”. 41 It includes catch up

37

emphasised that because of the influence they exert on the community, the business interests of licensees must be subordinated to the overriding principle that the possession of a licence is a public trust for the benefit of all members of society: Commonwealth, Parliamentary Debates, House of Representatives, 19 April 1956, p 1536 (Mr Davidson). BSA, s 4(1).

38

Until recently, there were six free-to-air television channels in the mainland capital cities: three commercial channels, the ABC, the SBS and a community channel. At the time of writing, there are an additional 12 multi-channels: ABC2/ABC 4 Kids; ABC3; ABC News 24; SBS HD; SBS Two; NITV; 7Two; 7mate; GEM; Go!; Eleven and One. There are also a number of datacasting channels: see n 795.

39

Australian Communications and Media Authority, The Cost of Code Interventions on Subscription Television Broadcasters: Contemporary Community Safeguards Inquiry (March 2014) p 9. The term is used to refer to professionally produced content, not audio-visual material such as might be uploaded on YouTube. http://www.ebay.com.au/gds/What-Is-the-Difference-Between-Internet-TV-and-Internet-ProtocolTelevision-IPTV-/10000000177630834/g.html.

40 41

808 [14.30]

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television available “over the top” on the websites of the incumbent free-to-air television broadcasters and accessible via the internet on computer, tablet or phone. 42 IPTV is a term used to describe a digital television service that is delivered to a television set using the internet protocol via a high speed broadband internet connection, rather than over the airwaves or via a cable or satellite connection. It differs from internet television in that it is distributed “over networks which are owned by the distributor” 43 and is only available to consumers who have access to the programming that is passed over the privately held network. 44 Consumers must usually subscribe to this service through a monthly service contract 45 or perhaps on a pay per view basis. The service is provided to a particular location, usually the subscriber’s home. Some of the services provided by IPTV include live television (including the ability to pause and rewind live television programs), catch up television and stored video on demand. 46 Mobile television services are also becoming available. If the pervasiveness of linear broadcast television continues to wane, the heavy regulatory burdens that are imposed on commercial broadcasters will become increasingly disproportionate to their degree of influence and therefore harder to justify. Conversely, audio-visual programming delivered over the internet must now be taken as exerting an influence on community views. However, most IPTV providers are not regulated by the BSA as broadcasting services and are therefore not subject to licensing requirements, the subscription television broadcasters’ code of practice, 47 Australian content requirements, controls on the level of advertising and captioning obligations, as the case may be. The ACMA has observed that this inconsistency in regulation will become even more pronounced as the availability and take-up of online video services continues to expand in Australia. 48

42

Australian Communications and Media Authority, Six Emerging Trends in Media and Communications, Occasional Paper (November 2014) p 20. “Over the top” refers to “communications over existing infrastructure that does not require business or technology affiliations with the host internet service provider or network operator”: Australian Law Reform Commission, Copyright and the Digital Economy, Report No 122, (2014) at [16.18].

43

http://www.ebay.com.au/gds/What-Is-the-Difference-Between-Internet-TV-and-Internet-ProtocolTelevision-IPTV-/10000000177630834/g.html.

44 45

The television set must have an internet-enabled set top decoder box which controls access to the content. IPTV services are usually “bundled with other services, such as broadband internet access, for sale to the consumer. This system provides control to the distributor so that they can capitalize on marketing their services and the products they offer to their customers”: http://www.ebay.com.au/gds/What-Is-the-DifferenceBetween-Internet-TV-and-Internet-Protocol-Television-IPTV-/10000000177630834/g.html.

46

A number of entities provide IPTV services in Australia. An example is Fetch TV, which allows subscribers to record programs, view programs on demand, add packs of channels, watch Catch-Up TV and access apps such as YouTube for TV: http://www.fetchtv.com.au/FAQ/what-is-fetch-tv. Some IPTV service providers may hold a subscription broadcast licence (ie: a licence allocated under s 96(1) of the Broadcasting Services Act 1992 (Cth)); others may not fall within the scope of the determination. It will depend on the provider’s individual circumstances. Australian Communications and Media Authority, Six Emerging Trends in Media and Communications Occasional Paper (November 2014) p 23.

47

48

[14.30] 809

Australian Media Law

Objects and regulatory policy [14.40] The BSA lists the objects sought to be achieved in the regulation of broadcasting services. 49 These objects assist in ensuring that decisions are consistent with the policies enshrined in the Act and help guide the ongoing administration and enforcement of the Act by the Australian Communications and Media Authority (the ACMA). 50 The objects are not listed in order of priority and the relative importance of each can vary over time. There may also be tensions between the objects. 51 Those objects which apply to broadcasting services are: • to promote the availability to audiences throughout Australia of a diverse range of radio and television services offering entertainment, education and information; 52 • to provide a regulatory environment that will facilitate the development of an Australian broadcasting industry that is efficient, competitive and responsive to audience needs; • to encourage diversity in control of the more influential broadcasting services; • to promote the role of broadcasting services in developing and reflecting a sense of Australian identity, character and cultural diversity; • to promote the availability to audiences throughout Australia of television and radio programs about matters of local significance; • to promote the provision of high quality and innovative programming; • to encourage providers of commercial and community broadcasting services to be responsive to the need for a fair and accurate coverage of matters of public interest and for an appropriate coverage of matters of local significance; • to encourage broadcasters to respect community standards in the provision of program material; 53 • to encourage the provision of means for addressing complaints about broadcasting services; • to ensure that broadcasters place a high priority on protecting children from exposure to program material which may be harmful to them; and • to ensure that international broadcasting services are not provided contrary to Australia’s national interest. The BSA also contains a regulatory policy which enunciates the underlying philosophy to be pursued in the administration of the Act. 54 As regards broadcasting services in Australia, the Act states that Parliament intends that they be regulated in a manner that enables public interest considerations to be addressed in a way that does not impose unnecessary financial 49

BSA, s 3.

50 51

Explanatory Memorandum to the Broadcasting Services Bill 1992 (Cth), cl 3. For example, there is arguably some variance between encouraging diversity in control of the more influential services, yet at the same time promoting an efficient and competitive regulatory environment: see [15.30]. The Act creates eight categories of broadcasting services to help achieve this diversity: see [14.60]-[14.150].

52 53 54

Community standards are identified and enforced through program standards, codes of practice, licence conditions and research conducted by the ACMA. BSA, s 4. This policy does not apply to international broadcasting services: BSAs 4(3A).

810 [14.40]

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and administrative burdens on providers of broadcasting services, 55 readily accommodates technical change, and will encourage the development and application of broadcasting technologies, and the provision of services made practicable by those technologies, to the Australian community.

What is a broadcasting service? [14.50] It is necessary to determine what is regulated as a “broadcasting service” under the BSA. A “broadcasting service” is defined as a service 56 that delivers television or radio programs to people who have equipment appropriate for receiving the service. 57 A “program” is matter the primary purpose of which is to entertain, educate or inform an audience, or advertising or sponsorship matter whether or not of a commercial kind. 58 There is no requirement that program material be targeted at the general public; matter which is aimed at niche audiences can qualify as a “program”. In keeping with the technology neutral stance of the Act, the service need not be transmitted via the radiofrequency spectrum, but may be delivered by any means, including cable, optic fibre or satellite. Three types of electronic information services are specifically excluded from the definition of broadcasting service. The first are services that provide no more than data or no more than text, with or without associated still images. These services include teletext services, computer bulletin boards, online information services, email and electronic publishing services, even where those services include some form of graphics such as maps, tables or diagrams. 59 Secondly, a service is not a broadcasting service if it makes programs available on demand on a point-to-point basis, including a dial up service. A service is a point-to-point service if it is provided by the service provider pursuant to a request by a person at a time selected by that person. Conversely, a service is not a point-to-point service if it is provided according to a

55

56

There are several ways in which the Act seeks to minimise financial and administrative burdens. For example, a person’s suitability to hold a licence need be considered only where there are grounds for concern, full hearings of the ACMA should be conducted only where that is the most appropriate way of dealing with a matter and broadcasters are required to co-regulate by developing their own codes of practice. “Service” is not defined in the Act. In Amalgamated Television Services Pty Ltd v Foxtel Digital Cable Television Pty Ltd (1996) 136 ALR 319 it was suggested that it means the output of one channel. However in Phonographic Performance Co of Australia Ltd v Commercial Radio Australia Ltd [2013] FCAFC 11, “service” was held not to signify the programs themselves, but the provision of programs, by one means or another, such as the internet or terrestrial transmitters. Thus, the same program may be delivered by different services: at [68].

57

BSA, s 6. Equipment is “appropriate for receiving the service” if, by virtue of its design and technical characteristics, the receiver is capable of receiving the service, or the service provider has the technical capacity, by remote operation, to enable the receiver to receive the service: Explanatory Memorandum to the Broadcasting Services Bill 1992 (Cth), cl 6.

58 59

BSA, s 6. Captioning is also regarded as part of a television program: BSA, s 8A. M Armstrong, D Lindsay and R Watterson, Media Law in Australia (3rd ed, 1995), p 181.

[14.50] 811

Australian Media Law

timetable determined by the service provider, so that the program being received by a person is the same as that being received by any other person receiving the service at the same time. 60 Finally, the Act empowers the Minister to make a determination that certain services are not broadcasting services. A Ministerial determination is subject to parliamentary disallowance. 61 This provision gives the Minister flexibility to deal with new technological developments as and when they arise, without the need for legislative amendments. Initially, there was legal uncertainty as to whether content providers who streamed radio or television programs over the internet were providing a broadcasting service which required an appropriate broadcasting services licence. 62 Under the BSA, this would depend on whether the service makes “programs available on demand on a point to point basis, including a dial up service”, in which case it is not a broadcasting service, or whether it is more appropriately characterised as a point to multi-point service, in which case it is a broadcasting service. 63 Rather than resolve the issue of whether services delivered over the internet are point-to-point or point-to-multi-point, and thereby maintain the conceptual integrity of the definition of “broadcasting service”, 64 in September 2000, the Minister simply used his legislative power to determine that a “service that makes available television programs or radio programs using the internet, other than a service that delivers television programs or radio programs using the broadcasting services bands” is not a broadcasting service. 65 The determination is intended to include all services that use the internet even if part of their means of delivery is via technology which may not clearly be part of the internet – for example, services that enable users to access material from the internet using a mobile device, which relies on the radio frequency spectrum – provided the service does not deliver programs using the broadcasting services bands. 66 In other words, services that make available television or radio programs using the internet are not “broadcasting services” for the purposes of the BSA unless they also 60

The effect of this provision is to exempt most dial-up telecommunications services from the Act, as well as video on demand and other online video or audio services where a person selects individual movies, programs or audio tracks at a time of that person’s choice: Armstrong, Lindsay and Watterson (3rd ed, 1995), p 181.

61

BSA, s 6(2).

62

Department of Communications and Information Technology and the Arts, Report on Review of Streamed Internet Audio and Video Content (2001).

63

BSA, s 6. Costelloe suggests that it is possible to characterise internet streaming as point to multi-point, especially if the programs are received simultaneously by multiple viewers: R Costelloe “Internet Television and Radio Services – The Streaming Controversy” (2000) 4(5) Media and Arts Law Review 58 at 60. Costelloe (2000) 4(5) Media and Arts Law Review 58 at 60. Determination Under Paragraph (c) of the Definition of “Broadcasting Service” (No 1 of 2000). The background to the determination is discussed by Costelloe (2000) 4(5) Media and Arts Law Review 58; S Shipard, “Broadcasting Regulation in Review” (2001) 5(2) Telemedia 21. Online services are subject to a degree of regulation under Schs 5 and 7 of the BSA but not as “broadcasting services”. Report to Parliament: Review of Audio and Video Streaming Over the Internet, http://www.lfip.org/laws665s08/ archive02.htm. For example, “the determination will cover services which enable users to access material from the internet using a wireless application protocol device such as a mobile phone, whether or not the wireless application protocol is itself part of the internet”: Minister for Communications, Information Technology and the Arts, Explanatory Statement, Broadcasting Services Act 1992, Determination under para (c) of the definition of “broadcasting service” (No 1 of 2000).

64 65

66

812 [14.50]

Chapter 14 – Regulation of the Media

use the broadcasting services bands, in which case they are excepted from the exclusion. 67 It has been said that the government’s preparedness to permit television and radio programs to be provided over the internet without regulation draws unprincipled distinctions between streaming, on the one hand, and broadcasting and datacasting on the other. 68 In 2013 the Full Federal Court held that when a radio station simulcasts its programs on the internet, 69 the internet streamed transmission is a separate and distinct service from the broadcast of the same programs over the broadcasting services bands and is not a “broadcasting service” within the meaning of the BSA. 70 The Court explained that a service might “be delivered by the use of any means, including the broadcasting services bands; be delivered or made available using the internet; or be delivered or made available using the internet and the broadcasting services bands”. 71 The first and third categories are broadcasting services; the second category is not. The decision “clarifies that online content delivery will not be considered to be a broadcasting service even ... where it is delivered simultaneously with other content on broadcasting services bands by an entity holding a broadcasting services bands licence (for example, a commercial radio or television broadcasting licence)”. 72 However, uncertainty remains as to whether content delivered online over a closed network – such as IPTV – is within the scope of the exclusion provided under the Ministerial determination. 73

Categories of broadcasting services [14.60] The BSA creates eight categories of broadcasting services. 74 The categories are mutually exclusive, with the exception of international broadcasting services, which can also fall into another category. 75 Each category attracts a different level of regulation according to its ability to shape and influence community views in Australia. For example, the category into 67 68

Phonographic Performance Co of Australia Ltd v Commercial Radio Australia Ltd (2013) 209 FCR 331 at 332. Costelloe (2000) 4(5) Media and Arts Law Review 58 at 60.

69

Simulcasting occurs when identical continuous audio or audio-visual streams are broadcast by means of two or more platforms. In the case of radio it may be AM transmission, FM transmission, digital transmission or web streaming: Phonographic Performance Co of Australia Ltd v Commercial Radio Australia Ltd (2013) 209 FCR 331 at 334. Phonographic Performance Co of Australia Ltd v Commercial Radio Australia Ltd (2013) 209 FCR 331. This case was concerned with whether the scope a non-exclusive licence of the right to broadcast certain sound recordings granted by a copyright collection agency to radio stations included the right to play those recordings in radio programs transmitted by FM broadcast as a simulcast with transmission of the same program via the internet. The answer to this turned on the construction of the definition of “broadcasting service” in the BSA, as affected by the Ministerial determination.

70

71 72

Phonographic Performance Co of Australia Ltd v Commercial Radio Australia Ltd (2013) 209 FCR 331 at 348. Allens Focus: Full Court Clarifies Online Content Delivery, http://www.allens.com.au/pubs/tmt/ fotmt28mar13.htm#Backg.

73 74

Allens Focus: Full Court Clarifies Online Content Delivery, http://www.allens.com.au/pubs/tmt/ fotmt28mar13.htm#Backg. Only seven categories are listed in s 11. However, “subscription broadcasting services” are, in reality, subdivided into two distinct categories, namely, subscription television broadcasting services and subscription radio broadcasting services.

75

BSA, s 11A.

[14.60] 813

Australian Media Law

which a particular service falls will determine whether an individual licence must be obtained before the service can be provided or whether the service can be provided under a class licence, the method of licence allocation, which licence conditions, program standards and codes of practice apply to the service, whether the service can carry advertising and whether the service is subject to ownership and control restrictions.

National broadcasting services [14.70] National broadcasting services are defined as the free-to-air broadcasting services provided by the two publicly-owned broadcasters – the ABC and the SBS – and broadcasts of the proceedings of the Commonwealth Parliament provided under the Parliamentary Proceedings Broadcasting Act 1946 (Cth). 76 Subscription broadcasting services and subscription or open narrowcasting services provided by the ABC and SBS are not regarded as national broadcasting services unless the Minister determines otherwise. 77 The regulatory regime established by the BSA does not apply to the national broadcasting services unless the Act expressly provides otherwise, because they are primarily governed by their establishing Acts. 78 The functions and duties of the ABC and the SBS are outlined in their respective charters. 79 The function of the ABC is to provide, within Australia, innovative and comprehensive broadcasting services of a high standard. In particular, it must broadcast programs that contribute to a sense of national identity, that inform and entertain, and that reflect the cultural diversity of the Australian community. It must also provide programs of an educational nature. In providing broadcasting services within Australia, the ABC must take account of: the services provided by the commercial and community broadcasting sectors and by the SBS; any ACMA standards; its responsibility as the provider of an independent national broadcasting service to provide a balance between programs of wide appeal and specialised programs; the multicultural character of the Australian community; and, in connection with educational programs, the responsibilities of the States in relation to education. 80 It is also a function of the ABC to transmit to countries outside Australia, broadcasting programs of news, current affairs, entertainment and cultural enrichment that will encourage an awareness of Australia and an international understanding of Australian attitudes on world affairs. These international broadcasts must also enable Australian citizens living or travelling outside Australia to obtain information about Australian affairs and Australian attitudes on world affairs. The third main function of the ABC is to encourage and promote the musical, dramatic and other performing arts in Australia. Finally, it is a responsibility of the ABC to provide digital 76 77 78 79

80

BSA, s 13(1). The Parliamentary Proceedings Broadcasting Act 1946 (Cth) is discussed in [4.530]-[4.540]. A specification by the Minister that these services are to be treated as national broadcasting services can be disallowed by Parliament: s 13(2) – (4). BSA, s 13(5). See also Australian Broadcasting Corporation Act 1983 (Cth), s 79; Special Broadcasting Service Act 1991 (Cth), s 70. The main exception concerns complaints about national broadcasting services. Australian Broadcasting Corporation Act 1983 (Cth), s 6; Special Broadcasting Service Act 1991 (Cth), s 6. For a comprehensive overview of the ABC see: Dr R Jolly, The ABC: an Overview (Research Paper Series 2014-15, Parliamentary Library, Parliament of Australia, 2014). Australian Broadcasting Corporation Act 1983 (Cth), ss 6(2)(a), 26.

814 [14.70]

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media services. 81 A digital media service is a service that delivers content by means of digital electronic communications to persons having equipment appropriate for receiving that content or a service that allows end-users to access content using digital electronic communications. 82 It does not include a broadcasting or datacasting service. The ABC is also required to develop and maintain an independent service for the broadcasting of news and information and must broadcast daily from each broadcasting service – apart from any subscription services or open narrowcasting services – regular sessions of news and information relating to current events within and outside Australia. 83 The ABC also has broadcasting responsibilities under the Parliamentary Proceedings Broadcasting Act 1946 (Cth). 84 It is not permitted to carry advertisements on its broadcasting or digital media services. 85 The principal function of the SBS is to provide multilingual and multicultural radio, television and digital media services that inform, educate and entertain all Australians, and, in doing so, reflect Australia’s multicultural society. In performing this function the SBS is subject to a number of duties. For example, it must contribute to meeting the communications needs of Australia’s multicultural society (including ethnic and Aboriginal and Torres Strait Islander communities), increase awareness of the contribution of a diversity of cultures to the continuing development of Australian society, promote understanding and acceptance of the cultural, linguistic and ethnic diversity of the Australian people and contribute to the overall diversity and extension of the range of Australian television and radio services. The SBS is entitled to broadcast advertisements and sponsorship announcements on any of its broadcasting services, with restrictions. 86 If the ABC or the SBS holds a datacasting licence under the BSA, it also has the function of providing that datacasting service in accordance with the conditions of the licence. 87 The ABC and SBS must develop codes of practice relating to programming matters (and, if the broadcaster provides a datacasting service, that service) and notify those codes to the ACMA. 88 Both broadcasters are required to prepare corporate plans on a regular basis. 89 Amongst other things, these plans must outline the overall strategies and policies the broadcaster will follow to achieve its objectives, fulfill its functions and perform its duties. 81

84

This was inserted into the ABC’s Charter by the Broadcasting Legislation Amendment (Convergence Review and Other Measures) Act 2013) (Cth) in recognition of the fact that the ABC’s digital engagement can no longer be regarded as peripheral to its traditional broadcasting. Australian Broadcasting Corporation Act 1983 (Cth), s 3A. The content may be in any form or combination of forms, including text, data, speech, music or other sounds, visual images (animated or otherwise). Australian Broadcasting Corporation Act 1983 (Cth), s 27. This responsibility is not part of the ABC’s Charter: s 6(3). See [4.530]-[4.540].

85 86 87

Australian Broadcasting Corporation Act 1983 (Cth), s 31. Special Broadcasting Service Act 1991 (Cth), s 45. Australian Broadcasting Corporation Act 1983 (Cth), s 6A; Special Broadcasting Service Act 1991 (Cth), s 6A.

88

Australian Broadcasting Corporation Act 1983 (Cth), s 8(1)(e); Special Broadcasting Service Act 1991 (Cth), s 10(1)(j). Australian Broadcasting Corporation Act 1983 (Cth), ss 31B – 31C; Special Broadcasting Service Act 1991 (Cth), s 48. See also: Public Governance, Performance and Accountability Act 2013 (Cth).

82 83

89

[14.70] 815

Australian Media Law

Commercial broadcasting services [14.80] Commercial broadcasting services have five characteristics. 90 First, they provide programs that, when considered in the context of the service, appear to be intended to appeal to the general public. In determining whether this is the case, the overall programming of a service is considered rather than discrete segments of the total programming. 91 Secondly, commercial broadcasting services provide programs that are able to be received by commonly available equipment. This will be the case if the service utilises technology for which receiver equipment is readily available and affordable in the community in which the service is provided. 92 Thirdly, the programs are provided free to the general public. This means that no subscription fee is payable, and a person can receive the service without having to be supplied with a special receiver by the service provider as part of an agreement in relation to the provision of the service. 93 The fourth and fifth characteristics focus on the commercial nature of the service: commercial broadcasting services are usually funded by advertising revenue and are operated for profit or as part of a profit making enterprise. Commercial broadcasting services require an individual licence.

Community broadcasting services [14.90] Community broadcasting services have three characteristics. 94 First, the service must be provided for community purposes. This phrase is not defined in the BSA. 95 It has been suggested that, unlike commercial broadcasting services which provide programs that are intended to appeal to the general public, the notion of “community purposes” is linked to the satisfaction of community interests. 96 However, in 3AW Southern Cross Radio Pty Ltd v Inner North East Community Radio Incorporated 97 Heerey J intimated that “community purposes” are not confined to events which are of local interest only, but may encompass programs which are of interest to people outside the local community. Thus the broadcasting by two community radio broadcasters of Australian Football League games in which Footscray (as it then was) and Collingwood were participants was capable of being for “community purposes”, even though the games were also of interest to the Victorian and Australian community at large. 90

91 92

BSA, s 14(1). For the purposes of the application of s 14 to a commercial television broadcasting service provided with the use of a satellite, it is assumed that there is no conditional access system that restricts access to this broadcasting service, even though a conditional access system is provided for under BSA, Pt 9C: s 14(2). Explanatory Memorandum to the Broadcasting Services Bill 1992 (Cth), cl 14. Explanatory Memorandum to the Broadcasting Services Bill 1992 (Cth), cl 14.

93 94

Explanatory Memorandum to the Broadcasting Services Bill 1992 (Cth), cl 14. BSA, s 15.

95

Some indication of its meaning is to be found in the community broadcasting licence conditions, which require some community participation in the provision of the service and in the selection and provision of programs: BSA, Sch 2 Pt 5 cl 9(2)(c). P Mallam, S Dawson and J Moriarty, Media and Internet Law and Practice (Thomson Reuters, subscription service), [18.630], [18.650]. 3AW Southern Cross Radio Pty Ltd v Inner North East Community Radio Incorporated (1994) 16 ATPR 41-313.

96 97

816 [14.80]

Chapter 14 – Regulation of the Media

Secondly, community broadcasting services cannot be operated for profit or as part of a profit-making enterprise. 98 A service is not regarded as operated for profit simply because it has a modest operating surplus at the end of a financial year, provided the surplus is utilised for the continued operation of the service and is not distributed for the personal use of persons involved in its management or operation. 99 If the service contributes to the generation of income for an organisation other than the service provider, it will be regarded as part of the same profit-making enterprise as that organisation. 100 For example, a service which broadcasts horse racing direct to betting shops would be treated as part of the profit-making enterprise of those betting shops. Owing to the fact that community broadcasting services cannot be operated for profit, they are unable to broadcast advertisements. However, they may broadcast sponsorship announcements provided they do not run in total for more than seven minutes in any hour of broadcasting (if the licensee is a community television broadcasting licensee) or five minutes in any other case. 101 Sponsorship announcements on community television may be broadcast only before or after programs or during natural program breaks. 102 Finally, community broadcasting services provide programs that are able to be received by commonly available equipment and are made available free to the general public. Community broadcasting services require an individual licence. The regulatory framework for community broadcasting services that provide television programs (CTV services) 103 is different in some respects to that which applies to other community broadcasting services. These differences are identified below. 104

98 99

100 101

102 103 104

See Australian Communications and Media Authority, Community Broadcasting Not-For-Profit Guidelines (2011). Explanatory Memorandum to the Broadcasting Services Bill 1992 (Cth), cl 15. This restriction does not prevent a designated community radio broadcasting service from holding shares in a digital community radio broadcasting representative company (DRC): BSA, Sch 2 Pt 5 cl 9(2AA). A DRC is the vehicle through which designated community radio broadcasting services are able to join the joint venture companies that hold the multiplex transmitter licences: see [14.450]-[14.480]. Multiplex licences are expected to generate a return commensurate with their investment, as they can charge fees to content providers for access to the multiplex, hence the exemption from the profit making restriction: Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Radio) Bill 2007 (Cth), Item 98. Explanatory Memorandum to the Broadcasting Services Bill 1992 (Cth), cl 15. BSA, Sch 2 cl 9(3). In calculating the length of time devoted to the broadcasting of sponsorship announcements, no account is taken of broadcast material that publicises programs to be broadcast by the community broadcasting licensee; material that promotes the licensee’s products, services or activities for the broadcast of which the licensee does not receive any consideration; community information or community promotional material for the broadcast of which the licensee does not receive any consideration; or sponsorship announcements consisting of moving text overlaid on a test pattern: BSA, Sch 2 cl 9(5). BSA, Sch 2 cl 9(4). See Australian Communications and Media Authority, Community Broadcasting Sponsorship Guidelines (2008). Excluded from the definition of a CTV service are community television services that are targeted to a significant extent to remote Indigenous communities: BSA, s 6. See [14.690], [14.780].

[14.90] 817

Australian Media Law

The BSA also makes provision for the allocation of temporary community broadcasting licences. 105 These licences authorise the provision of a community broadcasting service in a designated area using the broadcasting services bands for a period of up to 12 months. 106 The temporary community broadcasting licence system is designed to encourage people to trial community broadcasting services, allow the ACMA to monitor their performance for the purpose of allocating ordinary community licences and to make full use of the broadcasting services bands. 107 Community television services currently have temporary access to broadcasting services bands spectrum for digital terrestrial transmission. However, in September 2014 the Minister for Communications announced that the transmitter licences which authorise community television stations to use the broadcasting services bands to deliver their digital service will not be renewed beyond 31 December 2015. 108 This effectively means that from 2016, community television services will have to use the internet as their distribution platform.

Subscription broadcasting services [14.100] Subscription broadcasting services have two distinguishing characteristics. 109 First, like commercial broadcasting services, they provide programs that, when considered in the context of the service being provided, appear to be intended to appeal to the general public. Secondly, they are made available to the general public but only on payment of subscription fees. 110 Subscription television broadcasting services require an individual licence. They are dealt with quite separately to subscription radio broadcasting services, which are provided under a class licence.

Subscription narrowcasting services [14.110] Subscription radio and television narrowcasting services are broadcasting services which are made available only on payment of subscription fees, and whose reception is limited in any one or more of the following five ways: by being targeted to special interest groups, by being intended only for limited locations (for example, arenas or business premises), by being 105

BSA, Pt 6A. Such a licence cannot be allocated except in accordance with a determination by the ACMA under s 34. See [14.230].

106 107

The broadcasting services bands are discussed in [14.160]. Explanatory Memorandum to the Communications Legislation Amendment Bill (No 1) 1997 (Cth). Applicants for full community broadcasting licences need not have held a temporary community broadcasting licence. Hon M Turnbull, Minister for Communications, The Future of Community TV, Blog, (11 September 2014) http://www.minister.communications.gov.au/malcolm_turnbull/blog/post?id=1410419220&name= The+Future+of+Community+TV. It is understood that after their transmitter licences cease, this spectrum will be used to assist free-to-air broadcasters to test and ultimately migrate to MPEG-4, a more efficient video compression technology, after which it will in all likelihood be used for non-broadcasting purposes: http://www.malcolmturnbull.com.au/media/radcomms-2014-spectrum-in-the-age-of-digital-innovation.

108

109 110

BSA, s 16. A subscription fee includes any form of consideration and can be periodic or otherwise: s 6.

818 [14.100]

Chapter 14 – Regulation of the Media

provided during a limited period or to cover a special event, because they provide programs of limited appeal, or for some other reason. 111 Subscription narrowcasting services are provided under a class licence.

Open narrowcasting services [14.120] Open radio and television narrowcasting services are broadcasting services whose reception is limited in one or more of the aforementioned five ways. 112 Open narrowcasting services are provided under a class licence. HDTV and SDTV multi-channelled national and commercial television broadcasting services and digital national, commercial and community radio broadcasting services do not constitute open narrowcasting services. 113 Comprehensive guidelines have been issued which outline how the ACMA will interpret these five “limiting” factors in the context of radio services. 114 In relation to the first factor – services targeted at special interest groups – the guidelines provide that: • a special interest group is a specific group of people that share and represent an interest that may be organised and networked, and which may have its own perceptible culture; • a special interest group may be recognisable by a representative organisation (such as a professional, sporting or cultural body or association); • a special interest group can exist without any formal association or membership requirement (such as particular ethnic or language groups, racing enthusiasts etc); • a special interest group may comprise an audience with particular information requirements which would otherwise have no association with a group or organisation (eg: students with an interest in educational broadcasting services, business analysts following stock market trends, tourists); • with the exception of children under 10 years of age, age or gender specific groups do not constitute special interest groups, as people in these groups do not necessarily share common tastes or interests; • services which provide music and news are unlikely to fall into the special interest group category because both have such wide appeal that they cannot be readily identified with one group in the community. In relation to services limited by location, the BSA does not prescribe a critical size above which the service area would cease to be limited. However, the following examples and opinions given by the ABA and ACMA suggest that a fairly small area is contemplated: hospitals, doctors’ surgeries, shopping centres, schools, pubs and clubs, sporting venues, university campuses, airports, an aircraft or vessel and a remote open cut mine site. A service which is limited by location may include domestic dwellings in a specified limited area, suburb 111 112

BSA, s 17. BSA, s 18.

113 114

BSA, s 18(1A) – (5). Australian Communications and Media Authority, Narrowcasting For Radio: Guidelines and Information About Open and Subscription Narrowcasting Radio Services (2011). These Guidelines were originally published by the ACMA’s predecessor, the Australian Broadcasting Authority (ABA), in 2002.

[14.120] 819

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or isolated town. 115 Since only one limiting factor needs to be present, the content of services provided in limited locations can be of broad appeal. A service is limited if it is provided to cover a special event or is provided during a limited period. Examples include a Grand Prix, the Olympic Games, the Commonwealth Games, a festival, an expo, or a cultural event such as a horticultural show or an artistic exhibition. A fourth limiting factor is that the service provides programs of limited appeal. When assessing this factor, the overall programming of the service is considered rather than discrete segments. 116 Services that are likely to be characterised as being of limited appeal include services that are frequently repeated (such as a tourist information service) and services that are homogenous rather than made up of a number of different program components. Radio services which provide news and music are unlikely to be regarded as providing programs of limited appeal, as each is an integral and predominant component in mainstream radio services. However, it is possible that particular forms of music in isolation may be of sufficiently limited appeal that a service devoted entirely to them would fall within the definition of narrowcasting. 117 Finally a service may be limited for some other reason. Where a service is not sufficiently limited to satisfy one of the aforementioned factors in isolation, the interaction of two or more limiting factors may render the service limited “for some other reason”. The dividing line between open narrowcasting radio services and commercial radio broadcasting services has proven to be particularly obscure. 118 At one point, open narrowcasting services were regularly breaching the BSA because they were, in reality, commercial radio broadcasting services. In an attempt to provide some certainty to service providers, the ABA issued two clarification notices in relation to open narrowcasting radio services which use an AM or FM signal within the broadcasting services bands. 119 These clarifications deem services which satisfy certain criteria to be open narrowcasting radio services. They include: religious services; information services; pre-recorded, regularly repeated audio content services; non-English language services; horse, harness and greyhound racing services; and services targeted at children under 10 years of age. The clarifications also make it clear that the fact that an FM radio service is delivered using a low power transmitter does not, of itself, render the service “limited” and therefore narrowcast. The clarifications also give some certainty to the meaning of “limited period” and “special event”. The clarifications are not exhaustive. Accordingly, services which do not come within the terms 115

Explanatory Memorandum to the Broadcasting Services Bill 1992 (Cth), cl 17.

116 117

Explanatory Memorandum to the Broadcasting Services Bill 1992 (Cth), cl 17. Australian Communications and Media Authority, Narrowcasting For Radio: Guidelines and Information About Open and Subscription Narrowcasting Radio Services (2011). The obscurity continues despite the attempts at clarification. See, for example: Australian Communications and Media Authority, Investigation Report No 1999 (2009).

118 119

Australian Broadcasting Authority, Broadcasting Services Clarification Notice (2001) (as amended by the Broadcasting Services Clarification Notice 2001 Variation 2011 No 1); Australian Broadcasting Authority, Broadcasting Services Clarification Notice (2002). For the regulator’s power to make clarifications see [14.140]. For the background to these particular clarifications see: Australian Broadcasting Authority, Open Narrowcasting Radio Services: Clarifying the Criteria Discussion Paper (2001).

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of the clarifications can still be narrowcasting services provided they possess at least one of the limiting criteria. 120 The introduction of these clarifications was accompanied by the imposition of additional conditions on certain open narrowcasting radio services which require the operators of these services to notify the ACMA as to how their service is relevantly limited. 121 The ACMA has also issued guidelines on the types of television services that are likely to be categorised as open and subscription narrowcasting services. 122 The Guidelines are of a general nature and do not pre-empt the ACMA decisions on service categories.

International broadcasting services [14.130] This category of service was introduced into the BSA in December 2000. 123 An international broadcasting service is a broadcasting service that is transmitted from a radiocommunications transmitter within Australia, but which is targeted to a significant extent, to audiences outside Australia. 124 International services provided by a national broadcaster are excluded from the definition. So are services that are transmitted from a place outside Australia to an earth station in Australia for the sole purpose of being immediately re-transmitted to a satellite, which is a means of delivering the service elsewhere, provided the service only delivers programs packaged outside Australia and all relevant programming decisions are made outside Australia. 125 International broadcasters require an individual broadcasting licence. Unlike other broadcasting services, an international broadcasting service can have a dual classification. This would be the case if the service is also delivered to persons in Australia. In this situation, the service provider would also need to hold a licence for the domestic category into which the service falls. Owing to the fact that international broadcasting services are not aimed at audiences in Australia, they are not considered in detail in this chapter. Suffice it to say that a company registered under Pt 2A.2 of the Corporations Act 2001 (Cth) that wants to provide an 120

121 122

123 124 125

For an in depth discussion of these clarification notices see: M Leiboff, “Clarifying Open Narrowcasting” (2001) 6(2) Media and Arts Law Review 131; M Leiboff, “Open Narrowcasting Radio Services” (2002) 7(4) Media and Arts Law Review 327. Australian Broadcasting Authority, Broadcasting Services (Additional Conditions – Open Narrowcasting Radio Services) Notice (2002). Australian Communications and Media Authority, Narrowcasting Services on Television – Guidelines and Information (2007). The Guidelines were prepared in anticipation of the allocation of the Channel A datacasting transmitter licence, which is permitted to be used to provide (inter alia) narrowcasting television services. However, the Guidelines are not confined to services provided under this licence. For an explanation of Channels A and B see [14.1340]. The Broadcasting Services Amendment Act 2000 (Cth) inserted Pt 8B into the BSA. BSA, s 18A. A service fortuitously received outside Australia is not covered by the definition; the service must be targeted at audiences outside Australia. An example is given in the Explanatory Memorandum to the Broadcasting Services Amendment Bill 2000 of a television service which comprises programs packaged in the United States, where all the programming decisions are made in the United States, that is transmitted to an earth station in Australia by satellite or cable, and is immediately transmitted to a satellite which delivers the television service to Indonesia. This exemption ensures that the amendments do not affect any commercial proposals to make Australia a programming up-link hub for broadcasting services delivered by satellite.

[14.130] 821

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international broadcasting service can apply to the ACMA for an international broadcasting licence. 126 If the ACMA verifies that the applicant is a corporation formed in Australia and does not decide that it is unsuitable, 127 it must refer the application to the Minister for Foreign Affairs. The reference must be accompanied by a report as to whether the proposed international broadcasting service complies with the international broadcasting guidelines developed by the ACMA. 128 The Minister must determine whether the proposed international broadcasting service is likely to be contrary to the national interest, having regard to the likely effect of the service on Australia’s international relations. Depending on the outcome of the Minister’s assessment, the ACMA will be directed to either grant or refuse to allocate the licence. The licence conditions for international broadcasting services primarily relate to record keeping. Since 2013, the Australian Broadcasting Corporation Act 1983 has provided that the ABC is to be the sole provider of Commonwealth-funded international broadcasting services. 129

Determination and clarification of criteria [14.140] Although the BSA specifies the characteristics of each category of broadcasting service, it may still be difficult to determine the category into which a particular service falls. The Act makes provision for clarification of the boundaries between the service categories in two ways. The first is a general clarification by the ACMA that is applicable to all services. The second enables an opinion to be obtained from the ACMA in respect of a particular service. The ACMA is empowered to determine additional criteria or to clarify the existing criteria for the purpose of distinguishing between the categories of broadcasting services, other than national broadcasting services. 130 Different criteria or clarifications may be made for radio and television services. The Minister may give specific directions to the ACMA as to the making of determinations and clarifications and these directions must be observed. Determinations or

126

Part 8B Div 4A establishes a “nominated broadcaster declaration scheme” which permits the ACMA to make a declaration allowing an international broadcasting service licence and the related transmitter licence to be held by different people, provided the holder of the transmitter licence is an Australian company.

127 128

The suitability requirements are discussed in [14.700]. Australian Communications and Media Authority, Broadcasting Services (International Broadcasting) Guidelines (2005) made pursuant to s 121FP. Australian Broadcasting Corporation Act 1983 (Cth), s 31AA. This does not prevent the ACMA from allocating international broadcasting licences pursuant to the BSA. The Government’s decision that the ABC should have sole responsibility for providing publicly funded international broadcasting services recognises that, “as an important public diplomacy platform, Australia’s international broadcasting service should be provided by Australia’s national broadcaster, the ABC”. Yet one year later, in the 2014–15 budget, the Government announced that control of the Australia Network would be removed from the ABC. The Australia Network has since gone off air and been replaced with a multi-platform called Australia Plus. For a critique see: Q Dempster, Vandalisation of the ABC Overseas Service – An Insider’s Perspective, http:// www.internationalaffairs.org.au/media_library/transcript-vandalisation-of-the-abc-overseas-servicean-insiders-perspective/?region=nsw. BSA, s 19.

129

130

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clarifications can be disallowed by Parliament. 131 The clarifications made by the ABA in respect of open narrowcasting radio services are an example of the use of this power. 132 The ACMA must have regard to a number of matters when making determinations or clarifications. 133 These matters relate to those aspects of a service which determine its potential to influence community views. They include the geographic coverage of the service, 134 the number of persons who are able to receive the service, and the accessibility of the service. Factors relevant to accessibility include whether the service is encrypted, whether its availability is restricted because of the high cost of the equipment required to receive the service or its controlled supply, and whether the comprehensibility of the service is restricted (which will be the case if the service is provided in a foreign language or relates to a highly technical subject beyond the understanding of most members of the community). The ACMA must also have regard to the duration and frequency of the service, 135 the nature of the audience at which the service is targeted (including the audience’s ethnic, racial or language background, membership of professions, clubs and associations, age, interests, religion etc) and the nature of the programs being provided by the service, including the level of interest in the subject matter of the programs, whether they are directed at a specialised audience, and their social and cultural impact.

Obtaining an opinion on service category [14.150] A provider or aspirant provider of a broadcasting service can apply to the ACMA for an opinion as to the category to which the service belongs. 136 The application must state the opinion of the applicant as to the category the service falls into. The ACMA is required to provide the applicant with its written opinion as soon as practicable. If no opinion has been provided within 45 days, the ACMA is taken to have given an opinion which accords with the applicant’s opinion. The matters to which the ACMA must have regard when forming an opinion are the same as those to which it must have regard when making a determination or a clarification. The ACMA must publish a copy of its opinion in the Gazette, although if the service is a proposed service, publication of the opinion must be deferred until the service has commenced. 137 Once an opinion has been given, neither the ACMA nor any other government agency can take any action against the service provider for a period of five years on the basis that the

131 132

BSA, s 20. See [14.120].

133 134

BSA, s 22. This is relevant because limited location is one of the factors that can render a service a narrowcast service.

135

A service which is provided for a set period only may be a narrowcasting service on the basis that it is established for a limited period or for the duration of a certain event.

136

BSA, s 21.

137

BSA, s 210.

[14.150] 823

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service falls into a different category than that advised in the opinion. 138 The service provider enjoys this protection only while the circumstances relating to the broadcasting service remain substantially the same as those advised in the application. Any significant change to the service in terms of its programming, method of delivery, coverage or location could forfeit the protection immediately. Even after the expiration of the five year period, action can only be taken by the ACMA or a government agency on the basis that the service falls into a different category than that advised in the opinion if the ACMA has made a subsequent determination or clarification that places the service in a different category. An ACMA opinion may have adverse consequences for persons who provide broadcasting services in the same area as the service to which the opinion relates. Nevertheless, existing service providers are not given an opportunity to make submissions during the opinion process. However, it would be open to such a person to challenge the legal correctness of an opinion through judicial review, since an ACMA opinion does not bind the courts.

Spectrum planning and management [14.160] Although the BSA regulates all broadcasting services regardless of the manner in which they are delivered to consumers, in certain contexts and for certain purposes, the Act differentiates between services according to their method of delivery. This is true of broadcasting services that are delivered via the radiofrequency spectrum. The radiofrequency spectrum is that part of the electromagnetic spectrum that is used for communications. 139 While the allocation and use of spectrum is primarily regulated by the ACMA under the Radiocommunications Act 1992 (Cth), 140 provision is made in that Act for the Minister to designate a part of the radiofrequency spectrum as being primarily for broadcasting purposes or restricted datacasting services (or both) and refer it to the ACMA for planning under the BSA. 141 This part of the radiofrequency spectrum is known as the “broadcasting services bands”. 142 When digital radio was introduced, the Minister was also empowered to designate a part of the spectrum as being partly for the purpose of digital radio broadcasting services and restricted datacasting services and refer it to the ACMA for planning under the BSA. 143 138

139

140 141 142 143

BSA, s 21(5). Five years was chosen as a sufficient period for the service provider to recoup the original investment in the service: Australian Broadcasting Authority, Narrowcasting For Radio: Discussion Paper (1994). The radiofrequency spectrum is used by many forms of communication other than terrestrial broadcasting, including mobile phone networks, satellite broadcasts, air traffic control, GPS, space, defence and maritime communications, police and emergency services and meteorological information services: see Australian Communications and Media Authority, Australian Radiofrequency Spectrum (2013). Australian Communications and Media Authority Act 2005, s 9. The current radiofrequency plan is contained in: Australian Communications and Media Authority, Australian Radiofrequency Spectrum Plan 2013. Radiocommunications Act 1992 (Cth), s 31(1). BSA, s 6(1)(a) (definition of “broadcasting services bands”). Radiocommunications Act 1992 (Cth), s 31(1A). Item 3 of the Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Radio) Bill 2007 (Cth) explains that spectrum constraints for the introduction of digital radio meant that these services were likely to need to be transmitted using not only broadcasting services bands spectrum, but also spectrum that was, at the time, outside the broadcasting services bands. Section 31(1A) makes provision for the use of this spectrum partially for the use of digital radio and restricted datacasting services. The Minister can determine that a designation under s 31(1A) ceases to be in force at

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The definition of “broadcasting services bands” was duly altered to include this spectrum. 144 It is with the planning of the broadcasting services bands that this section is concerned. 145 Most broadcasting services that deliver their services over the broadcasting services bands require a broadcasting licence under the BSA and a transmitter licence under the Radiocommunications Act 1992 which authorises use of the spectrum. The initial planning regime was introduced in the analog era and the ABA/ACMA developed a range of plans which enabled analog radio and television to operate within the broadcasting services bands. 146 The advent of digital broadcasting made it necessary for the ACMA to devise digital channel plans and, subsequently, television licence area plans for digital television and digital radio channel plans for digital radio. Planning for digital television transmission involved a lengthy changeover period from analog to digital transmission, which is now complete in all areas of Australia. Planning for digital radio is still progressing. Each of these regimes will be described.

Planning the broadcasting services bands Planning responsibilities of the ACMA [14.170] Part 3 of the BSA establishes the framework for the planning of the broadcasting services bands and gives the ACMA a planning role. In performing its planning functions, the ACMA is required to promote the objects of the BSA, including the economic and efficient use of the radiofrequency spectrum. 147 It must also have regard to such matters as it considers relevant, including demographics, the social and economic characteristics of licence areas and of Australia generally, the number of existing broadcasting services and the demand for new broadcasting services within licence areas and in Australia generally, developments in technology, technical restraints on delivery or reception and the demand for radiofrequency spectrum for services other than broadcasting services. 148 The ACMA has four planning responsibilities, many of which have already been discharged. The planning process is the “driving force” of broadcast regulation, as it is at the planning stage that decisions are made about the number of services that are available for

144 145 146 147 148

a specified time (s 31(1C)) thus indicating that the use of spectrum might be temporary, pending decisions about spectrum use after analog switch off: Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Radio) Bill 2007 (Cth) Item 149. The Minister may also determine that a designation has effect only in relation to one or more specified areas of Australia. Spectrum designated under s 31(1A) cannot be used for broadcasting services other than digital radio. Accordingly, it cannot be used for commercial television, analog commercial radio, analog community radio, subscription television, datacasting, or class licensed services: Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Radio) Bill 2007 (Cth) Item 149. BSA, s 6(1)(b) (definition of “broadcasting services bands”). Separate planning regimes exist under the Radiocommunications Act 1992 (Cth) for spectrum that is used for other communications services, such as mobile telephony and broadband services. Australian Communications and Media Authority, Australian Radiofrequency Spectrum Plan 2013, p 8. BSA, s 23. This is the only occasion on which the efficient and economic use of the radiofrequency spectrum is specified as an object of the Act. BSA, s 23.

[14.170] 825

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different service types in geographic areas of Australia. 149 No provision is made at the licence allocation stage for a reconsideration of whether there should be another type of service in a licence area. 150

Determine planning priorities [14.180] The first planning task performed by the ABA (as it then was) under the BSA was to determine planning priorities between particular areas of Australia and between different parts of the broadcasting services bands. 151 These planning priorities for radio and television channels were determined in September 1993. 152

Frequency allotment plans [14.190] The second task of the ABA/ACMA was to prepare frequency allotment plans for spectrum that had been designated primarily for broadcasting purposes and/or restricted datacasting services and that had been referred to it by the Minister for planning. 153 A frequency allotment plan determines the number of channels that are to be available in particular areas of Australia to provide broadcasting services and/or restricted datacasting services using that part of the spectrum. The ACMA was also required to prepare frequency allotment plans for spectrum that was designated by the Minister as being partly for the purpose of digital commercial, community or national radio broadcasting services and restricted datacasting services and referred to it for planning. A frequency allotment plan must determine the number of channels that are to be available in particular areas of Australia to provide digital commercial, community and national radio services and restricted datacasting services using that part of the radiofrequency spectrum. The ACMA has now completed the initial planning of services in the broadcasting services bands spectrum and frequency allotment plans are no longer required to be prepared or maintained. Any future changes to the number of channels that are to be available in particular areas of Australia are now accommodated by alterations to the relevant licence area plans and television licence area plans, as these are now the primary planning instruments. 154

Licence area plans [14.200] After determining frequency allotment plans the ACMA prepared licence area plans. 155 These plans determine the number and characteristics of broadcasting services that are to be made available in particular areas of Australia using the broadcasting services 149 150

Explanatory Memorandum to the Broadcasting Services Bill 1992 (Cth), cl 23. Explanatory Memorandum to the Broadcasting Services Bill 1992 (Cth), cl 23.

151 152

BSA, s 24 (now repealed). As part of that process, the ABA divided Australia into 23 planning zones and determined the priorities between those zones, having regard to the need for new services or services of a particular type in particular cities, States and areas of Australia, and areas of significant population growth or decline. Highest priority was accorded to areas with the fewest broadcasting services.

153 154

BSA, s 25 (now repealed). Explanatory Memorandum to the Broadcasting and Other Legislation Amendment (Deregulation) Bill 2014 (Cth), item 2. BSA, s 26.

155

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bands. Licence area plans must also include technical specifications, which include all matters relating to the technical characteristics of broadcasting services that are incorporated into a licence area plan. 156 Licence area plans may be varied by the ACMA subject to public consultation. Variation of a licence area plan may have a detrimental impact on incumbent licensees, especially if it provides for new entrants into the area. 157 Yet the plans are not subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth), as they are of a legislative, not an administrative, character. 158 The ACMA must determine the population of a licence area and of Australia having regard to the most recently published census count of the Australian Statistician. 159 The ACMA must also specify the percentage of the population of Australia constituted by the licence area population and the percentage of the licence area population that is attributable to an overlap area. 160 These determinations are fundamental to the operation of the ownership and control restrictions. 161 Before allocating a new commercial or community broadcasting licence that is a broadcasting services bands licence, the ACMA must designate one of these licence areas as the licence area of that licence. 162 The initial licence area plans, described above, were developed for the transmission of radio and television broadcasting services in analog mode; 163 they did not accommodate the conversion of television from analog to digital transmission or the introduction of digital radio. Digital channel plans were subsequently prepared to cater for the period in which national and commercial television broadcasters would simulcast their programs in both analog and digital mode. Then in preparation for the cessation of analog transmission, the ACMA was empowered by the Broadcasting Legislation Amendment (Digital Dividend and Other Measures) Act 2011 (Cth) to make television licence area plans which superseded existing licence area plans to the extent that they dealt with the planning of television broadcasting services and the digital channel plans made under the commercial and national television 156

157 158

Examples of technical specifications that might be included in licence area plans are the nominal carrier frequencies and nominal transmitter sites of the services and the nominal technical conditions for each of the services (including operating power and radiation pattern) and whether or not there will be a need for translators for any of the services: Explanatory Memorandum to the Broadcasting Services Bill 1992 (Cth), cl 26. It is a condition of a broadcasting service transmitter licence granted under the Radiocommunications Act 1992 (Cth) that the licensee operate the transmitter in accordance with the technical specifications determined by the ACMA: Radiocommunications Act 1992 (Cth), s 109(1)(d). Technical specifications need not be determined to the extent that a licence area plan deals with digital radio broadcasting services, as these are contained in digital radio plans: s 26(1A). M Leiboff, “Broadcast Planning” (2001) 6(4) Media and Arts Law Review 341. SAT FM Pty Ltd v Australian Broadcasting Authority [1997] FCA 647; RG Capital Radio Ltd v Australian Broadcasting Authority (2001) 113 FCR 18.

159 160

BSA, s 30. BSA, s 30.

161 162

See [15.60]. BSA, s 29. This does not apply to temporary community broadcasting licences. Licence areas for these licences are designated under s 92G(1)(a). The obligation to designate a licence area does not apply to commercial television broadcasting services provided with the use of a satellite. In this case, the licence areas are prescribed in BSA, s 38C.

163

Licence area plans for AM and FM radio and VHF and UHF television channels were developed on an area by area basis for each planning zone in accordance with the planning priorities discussed in [14.180].

[14.200] 827

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conversion schemes. 164 A television licence area plan specifies the channels that are available in particular areas of Australia to provide commercial, national and other television broadcasting services with the use of the broadcasting services bands and allots, or empowers the ACMA to allot, them to particular licensees or national broadcasters. 165 The purpose behind these provisions was to give the ACMA greater flexibility to plan and implement the re-stacking of digital television channels in order to free up spectrum for the digital dividend which would be made available when analog transmission ceased. 166 Now that the conversion to digital television transmission is complete, the television licence area plans have come into force and the existing licence area plans have ceased to have effect to the extent that they relate to the planning of television broadcasting services. The commercial, national and other television broadcasting services operating in that licence area are now exclusively regulated by the relevant television licence area plan. 167 A licence area plan is not required to deal with commercial and community digital radio broadcasting services provided under licences that were in force before the digital radio start up day for the licence area and which authorise the licensee to provide a digital radio service in the licence area. 168 If a licence area plan does deal with digital commercial, community and national radio broadcasting services, it need not identify the individual services; it is sufficient if the plan deals with collectively with the services that are to be transmitted from time to time under the digital radio multiplex transmitter licence(s) issued in relation to the area concerned. 169

Technical planning guidelines [14.210] The fourth task of the ACMA is to develop guidelines for the technical planning of individual services that use the broadcasting services bands as a means of delivery. 170

164

165 166

167 168

169 170

Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Dividend and Other Measures) Act 2011 (Cth), Item 6, [10]. Modified consultation obligations applied to these plans: BSA, s 27(1A), (1B) (now repealed). BSA, s 26(1B). Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Dividend and Other Measures) Act 2011 (Cth), Item 6, [12]. The term “digital dividend” refers to the block of spectrum which was freed up and available for other uses following the switchover to digital television, which uses less spectrum than analog transmission. Following the cessation of analog television transmission, the digital services were moved so that they all operate below 694 MHz. This process is referred to as “restacking”. It was completed in November 2014. Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Dividend and Other Measures) Act 2011 (Cth), Item 6, [11]. BSA, s 26C. To require the ACMA “to replan the digital radio services of incumbent licensees would add unnecessary costs and delays in the rollout of digital radio as the licences providing these services are already planned through existing LAPs”: Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Radio) Bill 2007 Item 36. BSA, s 26D. BSA, s 33. See: Australian Communications and Media Authority, Broadcasting Services (Technical Planning) Guidelines (2007).

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Whereas the technical specifications relate to the technical characteristics of all services within a licence area, the technical planning guidelines focus on individual services. 171

Reservation of capacity for national and community broadcasting services [14.220] The Minister can direct the ACMA to reserve capacity in the broadcasting services bands for a specified number of national or community broadcasting services (other than temporary community broadcasting services). 172 Such a direction is not permitted to affect services that are already being provided in accordance with a licence allocated by the ACMA or in accordance with a class licence. The power to reserve spectrum for national and community services was conferred out of a concern that commercial broadcasters might otherwise dominate spectrum allocation due to their greater economic resources. A reservation by the Minister can be disallowed by Parliament. 173 If capacity in the broadcasting services bands has been reserved by the Minister, the ACMA cannot permit broadcasting services other than national or community broadcasting services to make use of that reserved capacity except on a temporary basis. 174

Alternative uses of broadcasting services bands [14.230] In order to ensure that spectrum is not wasted, the BSA permits unused or unplanned spectrum in the broadcasting services bands to be used for alternative purposes for a period determined by the ACMA. 175 Broadcasting services bands are available for alternative uses in four circumstances. The first is where broadcasting services bands spectrum is available in a licence area but has not been made available for commercial broadcasting licences. The second is where the ACMA has advertised for applications for commercial broadcasting licences that are broadcasting services bands licences, but the licences have not yet been allocated. The third is where the Minister has reserved capacity in the broadcasting services bands for national or community broadcasting services, but the spectrum has not yet been made available for those services. The fourth is where spectrum is available in the broadcasting services bands, but the planning and allocation processes relating to that spectrum have not commenced or have not been completed. In addition to being satisfied that one or more of these circumstances exists, in deciding whether broadcasting services bands spectrum is available for alternative uses, the ACMA must have 171

172 173 174 175

The technical planning guidelines cover matters such as emission standards, the minimum field strength required within the licence area of services and the maximum permissible field strength of the transmission of services outside their licence area. Compliance with the guidelines is a condition of a broadcasting service transmitter licence: Radiocommunications Act 1992 (Cth), ss 108A(1)(d), 109(1)(e). BSA, s 31. But note the government’s decision not to renew transmitter licences for community television beyond 2015: see [14.90]. BSA, s 32. The ACMA’s power to authorise alternative uses of broadcasting services bands on a temporary basis is discussed in [14.230]. BSA, s 34.

[14.230] 829

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regard to such matters as it considers relevant, including the possible future demand for the use of that part of the radio frequency spectrum. If the ACMA decides that spectrum is available for alternative uses, it may make that spectrum available for: the temporary transmission or re-transmission of programs; temporary community broadcasting services; subscription broadcasting services, subscription narrowcasting services or open narrowcasting services; the transmission of datacasting services on a temporary basis; 176 or for any other purpose that the ACMA determines. The ACMA may also decide that parts of the broadcasting services bands are available for the transmission of datacasting services on a more permanent basis, although it must have regard to the possible future demand for that part of the spectrum for the provision of commercial television broadcasting services. 177

Planning for the conversion to digital television transmission What is digital television transmission? [14.240] Until the turn of the century, all television services which utilised the broadcasting services bands were transmitted in analog mode. In the late 1990s, digital technology reached the point where it had become both technologically possible and financially feasible to use it for the terrestrial transmission of television pictures and sound. Digital television is superior to analog television in a number of ways. 178 The improved technical quality of the digital television signal allows for the broadcast of clearer, sharper pictures without the interference and ghosting to which analog transmission is prone. Digital transmission also makes more efficient use of the radiofrequency spectrum and can thus deliver increased diversity of product and viewer choice. Whereas analog television channels can transmit only one continuous stream of programming and some limited data or text embedded in the main carrier signal, digital transmission can use the same amount of bandwidth to deliver around four “standard definition” (SDTV) programs at the same time, or to transmit one “high definition” (HDTV) television program which has widescreen cinema-like pictures and CD quality surround sound. 179 The technical capacity to transmit multiple channels simultaneously as part of the one service is known as multi-channelling. Moreover, whereas analog channels are very susceptible to interference from each other, thus requiring “unused buffer channels on either side of the channel to prevent such interference”, 180 digital broadcasting does not suffer from the same interference problems between channels, thereby making further efficiencies in 176 177 178 179

180

Datacasting services are described in [14.1260]-[14.1340]. BSA, s 34(3), (4). Provision is made in the Radiocommunications Act 1992 (Cth) for a transmitter licence to be issued in these circumstances: Radiocommunications Act 1992 (Cth), s 100. This description of the advantages of digital transmission is taken from the Explanatory Memorandum to the Television Broadcasting Services (Digital Conversion) Bill 1998. For a brief description of the advantages of digital television over analog television, the difference between SDTV and HDTV and some of the disadvantages of digital reception see: Dr R Jolly, Going Digital: Tracing the Transition to Digital Terrestrial Television in Australia (Research Paper No 7, Parliamentary Library, Parliament of Australia, 2010-11), pp 4-6. F Papandrea, “Digital Television Policy: A Squandered Opportunity” (2001) 8(1) Agenda 65 at 66.

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spectrum use. 181 Digital transmission also makes possible some measure of interactivity, and has the capacity to offer access subject to the payment of subscription fees, the blocking of unwanted programs and the viewing of programs on demand. Finally, the ability to access and transmit digital data (whether in the form of text, pictures or sounds) has enabled television to converge with other communications services. To enjoy the benefits of digital transmission, viewers had to purchase a new digital television set or obtain a digital set-top box which converts the incoming digital signal for display on an existing analog receiver.

The government’s response to digital television technology [14.250] Like other governments around the world, the Australian government was faced with a number of options as to how to manage the introduction of digital television. The matter was initially referred to an ABA Specialist Group. That group’s recommendations were endorsed by the ABA and contained in a report given to the Minister in July 1997. 182 On 24 March 1998 the government announced that the new digital technology would be used primarily to enhance the quality of existing commercial and national broadcasting services rather than to provide new services. 183 This was essentially a choice for “better television over more television”. 184 The more cynical described it as a policy based on a desire to maintain an “entrenched broadcasting oligopoly”. 185 To enable this to occur, the national and commercial broadcasters were allocated additional spectrum for a limited period at no cost. In return, they had to invest in a considerable amount of capital infrastructure and comply with a tight regulatory regime. This decision was put into effect in the Television Broadcasting Services (Digital Conversion) Act 1998 (Cth), which inserted Sch 4 into the BSA. Schedule 4 established the framework for the conversion from analog to digital television transmission. In its original form, Sch 4 largely restricted the commercial television broadcasters to providing a digital channel that was a replica (“simulcast”) of their respective analog channels. The provision of other channels with different content (“multi-channels”) was not permitted (with some minor exceptions), notwithstanding that overseas experience had indicated that the biggest driver in the uptake of digital technology is whether it delivers to consumers a greater 181 182

183 184

185

Productivity Commission, Broadcasting Report No 11 (2000), p 223. Australian Broadcasting Authority Specialist Group, Digital Terrestrial Television Broadcasting in Australia: Final Report of the Australian Broadcasting Authority Specialist Group on Digital Terrestrial Television Broadcasting (1997). The details of the Final Report, and its reception by the various sectors of the Australian television industry are discussed in J Given, “Being Digital: Australia’s Television Choice” (1998) 3 Media and Arts Law Review 38. See also Jolly, Going Digital: Tracing the Transition to Digital Terrestrial Television in Australia (Research Paper No 7, Parliamentary Library, Parliament of Australia, 2010-11), pp 12-13. For a discussion of the technical, commercial and policy decisions involved in the introduction of digital television in Australia see: J Given, Turning Off the Television: Broadcasting’s Uncertain Future (2003). J Bosland, “Australian Media Law Update: Digital Television and Multi-channelling: Changes under the Broadcasting Legislation Amendment (Digital Television) Act 2006” (2006) 11 Media and Arts Law Review 440 at 441. Jolly, Going Digital: Tracing the Transition to Digital Terrestrial Television in Australia (Research Paper No 7, Parliamentary Library, Parliament of Australia, 2010-11), p 49. Similar sentiments were expressed by Papandrea (2001) 8(1) Agenda 65.

[14.250] 831

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variety of content. 186 The national broadcasters were less constrained by content regulation than their commercial counterparts, but more constrained by a lack of funding. 187 Not surprisingly, the take up of digital television in Australia was initially very low. 188 Following a number of mandated reviews on various aspects of digital television, 189 and in recognition of the likelihood that digital uptake would not increase unless consumers valued the services on offer and could afford to pay for the necessary reception devices, 190 substantial amendments to the scheme were made in 2000, 191 and again in 2006. 192 The 2006 amendments had a staggered introduction, but basically they permitted commercial and national broadcasters to provide an increasing range of HDTV and SDTV digital services that were additional to their simulcast service. Thus the concept of “better television” gradually gave way to “more television”, but only from the incumbent national and commercial broadcasters.

Establishing and regulating the conversion to digital television Conversion schemes, implementation plans and regional equalisation plans [14.260] When digital transmission was first introduced, the ABA had to formulate legislative schemes to regulate the gradual conversion of the transmission of commercial and national television broadcasting services from analog mode to digital mode. 193 The schemes made separate provision for non-remote (that is, metropolitan and regional) licence areas and remote licence areas. The manifold policy objectives that had to be addressed in the conversion schemes were listed in Sch 4. The commercial and national conversion schemes came into operation on 9 June 1999 and 2 February 2000 respectively, although they were amended from time to time to accommodate various policy changes. The conversion schemes required the commercial and national television broadcasters to prepare implementation plans, which were binding commitments by these broadcasters to provide television services in digital mode from specified sites to cover specified areas by specified dates so as to achieve the same areas of coverage as their analog services as soon 186 187

188 189

190 191 192 193

Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Television) Bill 2006, p 4. J Given, “TV Competition Livens Up Down Under” (2010) 1(2) International Journal of Digital Television 231. This lack of funding was responsible for the failure of some earlier multi-channelling initiatives by both the ABC and SBS. Australian Communications and Media Authority, Digital Media in Australian Homes (2005), p 2. These reviews are collected in: Commonwealth Government, Department of Communications, Information Technology and the Arts, Reports on Reviews of the Digital Television Regulatory Framework (2006). See also: House of Representatives Standing Committee on Communications, Information, Technology and the Arts, Parliament of Australia, Digital Television: Who’s Buying It? (2006). The high cost of digital reception equipment was initially quite prohibitive, particularly HDTV receivers. Broadcasting Services Amendment (Digital Television and Datacasting) Act 2000 (Cth). Broadcasting Legislation Amendment (Digital Television) Act 2006 (Cth). The matters that had to be addressed by the conversion schemes were outlined in BSA, Sch 4 Pts 2 and 3, which have since been repealed.

832 [14.260]

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as possible after the commencement of the simulcast period. 194 At the end of the simulcast period, analog transmissions would cease and transmission would be digital only. 195

The simulcast period [14.270] Schedule 4 provided for a simulcast period during which the commercial and national television broadcasters were required to transmit their commercial or national service simultaneously in both analog and SDTV mode. The simultaneous transmission of both analog and digital signals was expensive for broadcasters, as well as an inefficient use of spectrum, but was considered necessary in order to minimise disruption to viewers and give time for the price of digital television sets to come down so that consumers could afford to make the transition to digital. During the simulcast period, there were limited circumstances in which the programming on the television broadcaster’s “core” digital service 196 was permitted to deviate from its analog counterpart. Standard definition digital transmission of commercial television broadcasting services commenced in metropolitan licence areas (and, in the case of the national broadcasters, “metropolitan coverage areas”, which correspond to the metropolitan licence areas) on 1 January 2001. Digital transmissions began in regional licence/coverage areas between 1 January 2001 and 1 January 2004 on dates determined by the ABA. Broadcasters in remote areas commenced digital transmission after 1 January 2001 at times determined by the ABA/ACMA. 197 Analog switch off took place on a staggered basis region by region. 198 It began in regional areas and progressed to the metropolitan ones, thereby giving the bulk of the population more time to purchase digital equipment and minimise the impact of any teething problems that might accompany the switch-off. 199 Analog television transmission ceased in the last remaining areas of Australia on 10 December 2013.

Technological aspects of digital conversion [14.280] To enable the commercial and national television broadcasters to simulcast their analog television programs in digital mode, the Australian Communications Authority (as it then was) allocated additional spectrum free of charge to these broadcasters and issued transmitter 194 195

196

197 198

199

The simulcast period is described in [14.270]. Arrangements for the cessation of analog transmission were contained in the Broadcasting Legislation Amendment (Digital Television Switch-Over) Act 2008 (Cth). Analog switch off was postponed a number of times due to the slower than expected take up of digital television sets. With the introduction of multi-channels, it became necessary to assign a label to the service provided by the commercial or national broadcaster that had to be simulcast, in order to distinguish it from any multi-channel services that might be provided. The designated name was the core service. It is now referred to as the primary service. This designation is necessary, inter alia, for the purpose of the application of the anti-siphoning restrictions. Remote licence areas were treated separately owing to the special circumstances that applied to the transmission of television in those areas. Senator the Hon Stephen Conroy, Minister for Broadband, Communications and the Digital Economy, Digital TV Timetable by Region, at http://www.minister.dbcde.gov.au/__data/assets/pdf_file/0006/88098/Digital_TV_ Timetable_by_Region.pdf. Jolly, Going Digital: Tracing the Transition to Digital Terrestrial Television in Australia (Research Paper No 7, Parliamentary Library, Parliament of Australia, 2010-11), p 9.

[14.280] 833

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licences which authorised them to transmit in digital mode. The ACMA was required under the conversion schemes to prepare digital channel plans which determined which channels were to be allotted to each area, the assignment of those channels to each broadcaster and the technical limitations and characteristics of those channels. The object of the plans was to enable a broadcaster to plan its digital transmission coverage to match its analog coverage. When analog transmissions ceased, the commercial and national television broadcasters had to return an equivalent amount of this additional loaned spectrum (and the accompanying transmitter licences) to the Commonwealth and had to transmit their television broadcasting service in digital mode using the new channel(s) allotted to them by the ACMA. 200 It was always the case that after analog switch-off, the spectrum devoted to analog transmissions would become available for other uses. This spectrum is known as “the digital dividend”. In January 2010 the Government released its Digital Dividend Green Paper, which canvassed a multiplicity of uses to which this digital dividend might be put. On 24 June 2010, the Minister for Broadband, Communications and the Digital Economy announced that when analog transmissions ceased, 126 MHz of contiguous spectrum in the upper UHF band would be freed up for other uses and auctioned. 201 Spectrum in the UHF band is regarded as “waterfront property” because of its ability to “carry signals over long distances, penetrate buildings and carry large amounts of data”. 202 Before this digital dividend spectrum could be reallocated to new uses, broadcasting services had to be cleared out of this spectrum and organised more efficiently within their remaining spectrum allocation. The process of moving digital television transmitters to new channels is referred to as the “restack”. 203 It was undertaken by the ACMA pursuant to the Australian Communications and Media Authority (Realising the Digital Dividend) Direction 2010, which provided it with policy guidance on the government’s digital dividend objectives. 204 The ACMA released two Discussion Papers which set out the planning and allocation issues associated with this process. 205 The Government decided that spectrum in the digital dividend band would be used primarily for mobile phones and wireless broadband services and in April 2013 it was auctioned to Optus Mobile, Telstra and TPG Internet. 200

201

202 203 204

205

They were issued with new transmitter licences for the continued broadcasting of their service in digital mode. The channels to be used for digital television services are defined in the television licence area plans (TLAPs) prepared by the ACMA between 2011 and 2013: see [14.200]. Senator Stephen Conroy, “Size and Location of the Digital Dividend” (Media Release, 24 June 2010). See also: Commonwealth Government, Department of Broadband, Communications and the Digital Economy, Digital Dividend Green Paper (2010). Commonwealth Government, Department of Broadband, Communications and the Digital Economy, Digital Dividend Green Paper (2010), p iii. Australian Communications and Media Authority, Annual Report 2013-14. To enable the ACMA to implement the restack of digital television channels to create a block of contiguous spectrum, the Broadcasting Legislation Amendment (Digital Dividend and Other Measures) Act 2011 (Cth) modified the existing planning process for television broadcasting services and gave the ACMA greater regulatory flexibility during the restack process. Australian Communications and Media Authority, Spectrum Reallocation in the 700MHz Digital Dividend Band (2010); Australian Communications and Media Authority, Clearing the Digital Dividend – Planning Objectives and Principles for Restacking Digital Television Channels Discussion Paper (2011).

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Providing services that are additional to the simulcast service [14.290] Schedule 4 regulates the use to which the commercial and national broadcasters could put the additional spectrum allocated to them for digital required transmission, over and above the transmission of a simulcast service, and the services that could be provided following the cessation of analog transmission. The government’s policy on this was initially very restrictive, more so in relation to the commercial broadcasters than the national broadcasters. However, the policy was liberalised somewhat during the simulcast period in an attempt to encourage the take up of digital television and to allow broadcasters to make use of some of the innovations afforded by digital technology.

Providing other types of services [14.300] National broadcasters are prohibited from using their digital transmitters to provide a commercial radio broadcasting service, a subscription radio or television broadcasting service, a subscription radio or television narrowcasting service or an open radio or television narrowcasting service. 206 However, they can transmit national radio broadcasting services. The transmitter licences issued to commercial television broadcasters only authorise them to use their digital spectrum to provide commercial television services. National and commercial television broadcasters were permitted, but not required, to use any spare transmission capacity on their digital transmission channels that was not taken up with the provision of broadcasting services to provide datacasting services or designated teletext services. 207 However, they are not permitted to control datacasting transmitter licences. 208 A charging regime for the provision of datacasting services was imposed to ensure that these broadcasters did not enjoy an unfair competitive advantage as a result of their loan of spectrum. 209

Providing HDTV services [14.310] Initially, the government proceeded on the assumption that HDTV would play an important role in the take up of digital television, believing that its vastly superior pictures and sound would be a drawcard for viewers. However, consumers could view HDTV programs only if they had a HDTV set-top box or a television with an HDTV tuner. Initially, this equipment was prohibitively expensive. Accordingly, the government had to give people the option of buying standard definition reception equipment, which was vastly cheaper. When Sch 4 was first enacted, it required commercial and national television broadcasters in non-remote areas to transmit at least 1040 hours of HDTV per year and required these HDTV programs to be

206 207 208 209

BSA, Sch 4 cl 36. BSA, Sch 4 cll 6(3)(k), 19(3)(k) (now repealed); Australian Broadcasting Corporation Act 1983 (Cth), s 6A; Special Broadcasting Service Act 1991 (Cth), s 6A. See [14.1260], [15.100]. The charges are imposed under the Datacasting Charge (Imposition) Act 1998. Schedule 4, Part 6 of the BSA relates to collection of these charges.

[14.310] 835

Australian Media Law

simulcasts of both the analog and SDTV service. This meant that, for at least 1040 hours per year, the one stream of programming had to be triplecast in analog, SDTV and HDTV. 210 The Government’s expectation that consumers would opt for quality of service over diversity of services proved to be mistaken and the position was revised. 211 While the quota itself remained, from 1 January 2007, the HDTV transmissions no longer had to be a simulcast of the SDTV and analog service. This effectively permitted one HDTV multi-channelled television broadcasting service. The legislation was then amended to require the national and commercial television broadcasters to provide at least one HDTV multi-channelled television broadcasting service in their coverage or licence area during the simulcast period and to transmit their quota of HDTV programs on that service. 212 The HDTV quota ceased at the end of the simulcast period. The rationale is that by the end of the simulcast period, HDTV would either be sufficiently popular for there to be a strong market demand for it (in which case there would be no need to impose a quota) or if still small, it would be a niche product (in which case a quota would be counter-productive). 213 Currently, the two national broadcasters and three commercial networks all have a dedicated HD channel. 214

Providing national multi-channel SDTV services [14.320] Unlike the commercial television broadcasters, the national broadcasters were permitted from an early date to provide multi-channel services in SDTV mode provided they continued to provide an SDTV simulcast of their analog service. Initially, the types of television programs that could be delivered by the SDTV service were subject to strict genre restrictions, but these were removed in 2006, thereby allowing national broadcasters to provide a full range of programs, including movies, news and sport, subject to compliance with their respective charters. 215 The multi-channel had to be transmitted in SDTV mode using multi-channelling transmission capacity or with the use of a satellite and had to be promoted as distinct from any other national broadcasting service provided by the broadcaster. 216

Providing commercial multi-channel SDTV services [14.330] Initially, Sch 4 provided that during the simulcast period, commercial broadcasters could not broadcast a program in SDTV mode unless the same program was broadcast 210

Bosland (2006) 11 Media and Arts Law Review 440 at 442.

211

213 214

The Productivity Commission was critical of the government’s decision to mandate HDTV and had predicted that only a few consumers would opt to purchase HD displays, making it more of a niche service: Productivity Commission, Broadcasting Report No 11 (2000), pp 244-254. An “HDTV multi-channelled television broadcasting service” is defined to mean the service provided by a national or commercial television broadcasting licensee which is transmitted in HDTV digital mode using multi-channelling transmission capacity or with the use of a satellite and which is promoted as a service that is distinct from any other national or commercial television broadcasting service provided by the licensee: BSA, Sch 4 cll 5B, 5D. Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Television) Bill 2006, p 39. See [14.340].

215 216

The ABC’s ability to provide these additional services is dependent on funding. BSA, Sch 4 cl 5C.

212

836 [14.320]

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simultaneously in analog mode, subject to some exceptions. 217 This effectively meant that these broadcasters could not use digital technology to provide separate channels over and above the digital version of their analog service. These multi-channelling restrictions were imposed to protect subscription television which was then a fledgling industry, since a multi-channel would have been a source of competition to subscription television. 218 Many of the commercial broadcasters were happy with this arrangement, as they anticipated that multi-channelling would fragment their audiences. 219 In 2006, the government introduced progressive changes to the multi-channel regime in recognition of the fact that diverse content was necessary to drive digital take-up. As discussed in [14.310], the restrictions on multi-channelling were removed in respect of HDTV transmissions. They were also progressively liberalised in respect of SDTV transmissions. Since the end of the simulcast period, all restrictions on the number of multi-channels that may be provided by commercial television broadcasting services have ceased. The only restrictions are technical.

Current national and commercial digital services [14.340] Currently, the ABC broadcasts the following channels in digital mode: ABC1 (its primary SDTV service); ABC2/ABC4Kids (a multi-channel SDTV service); ABC3 (a multi-channel SDTV service which is a dedicated children’s channel); and ABC News 24 (an HDTV service). The SBS broadcasts: SBS One (its primary SDTV service); SBS One (an HDTV service which is a simulcast of SBS One); SBS 2 (a multi-channel SDTV service) and NITV. Currently, the Seven network broadcasts in digital mode: Channel 7 (its primary SDTV service); 7Two (a multi-channel SDTV service) and 7Mate (an HDTV multi-channel with an emphasis on programming for men). The Nine network has: Channel 9 (its primary SDTV service); Channel 99GO (its SDTV multi-channel which is youth oriented) and GEM (an HDTV multi-channel which is a general entertainment and movie channel). The Ten network has: Channel 10 (its primary SDTV service); Eleven (its SDTV multi-channel, which is aimed at youth) and One HD (an HDTV multi-channel which is a sports channel). 220 The digital television broadcasting services that are collectively provided by the national and commercial broadcasters are marketed under the brand “Freeview”.

Restrictions on the content of multi-channelled services [14.350] When the programs broadcast in digital mode on a broadcaster’s primary service were simply simulcasts of its analog service, the content rules that applied to the analog channel automatically carried across to the digital channel. These included program classification, captioning requirements and the program standards pertaining to children’s programs and Australian content. However, the relaxation of the multi-channelling restrictions 217 218 219 220

In under-served licence areas, commercial television broadcasters were permitted to provide a digital multichannel pursuant to s 38B. Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Television) Bill 2006 (Cth). Only the Seven Network actively sought the right to multi-channel. The nominated HDTV channels need not provide 100% of their programming in HDTV.

[14.350] 837

Australian Media Law

made it necessary to consider whether material provided on these new services should be subject to the same content rules as the material provided on the simulcast analog service. Following are decisions made in relation to events on the anti-siphoning list and the application of standards and codes. Anti-siphoning [14.360] A sporting event that is on the anti-siphoning list cannot be shown, in whole or in part, on a national or commercial television broadcasting licensee’s SDTV or HDTV multi-channel unless the whole of the event, or that part of that event, has already been shown on the primary channel or is simultaneously being shown on that channel. 221 This effectively means that events on the anti-siphoning list cannot premiere on a digital multi-channel service. While this restriction was justifiable on equity grounds prior to the cessation of analog transmission, there is now no reason to continue it, as a primary service is now indistinguishable from a multi-channel service. In fact, relaxation of the restrictions would potentially increase the free-to-air coverage of sporting events on the list. The only possible disadvantage of maintaining the restriction would be to subscription television. The Australian Subscription Television and Radio Association has argued that a relaxation would “further disadvantage the pay television industry in the sports rights market and increase the anti-competitive nature of the anti-siphoning scheme”. 222 In 2010 the Department of Broadband, Communications and the Digital Economy reviewed the operation of the anti-siphoning regime and concluded that there is a case for events on the list to be permitted to be shown first on the digital multi-channels, with the possible exception of nationally iconic events. 223 However, the restriction persists. Application of program standards and codes of practice [14.370] During the simulcast period, the Australian content and children’s television standards only applied to a commercial television broadcaster’s primary digital service; they did not apply to SDTV or HDTV multi-channels. 224 This position has now changed and each commercial television broadcasting licensee must ensure that it broadcasts a minimum number of hours of Australian programs otherwise than on its primary channel. Moreover, no distinction is drawn between a licensee’s primary channel and its other channels as regards the genre quotas. There are also incentives for licensees to broadcast new Australian adult

221

222 223 224

BSA, Sch 4 Pt 4A. An exception is made where a part of an anti-siphoning event is included on a news or current affairs program on a multi-channel service. It is a condition of a licence that the licensee comply with restrictions on the televising of anti-siphoning events: BSA, Sch 2 cl 7(1)(ob). Department of Broadband, Communications and the Digital Economy, Sport On Television: A Review Of The Anti-Siphoning Scheme In The Contemporary Digital Environment, Review Report (November 2010) p 27. Department of Broadband, Communications and the Digital Economy, Sport On Television: A Review Of The Anti-Siphoning Scheme In The Contemporary Digital Environment, Review Report (November 2010) p 37. Program standards are explained in [14.940].

838 [14.360]

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drama programs other than on their primary service. 225 Codes of practice apply to all services provided by a commercial television broadcaster, including the multi-channels. 226

Digital subscription television services [14.380] As noted by the Productivity Commission, digital television broadcasts are not specific to any particular delivery system. 227 They can be delivered via cable, satellite, the radiofrequency spectrum etc. Schedule 4 of the BSA, which relates to digital broadcasting, is concerned only with terrestrial “over the air” delivery of digital services by the national and commercial television broadcasters. Subscription television broadcasters deliver their services via satellite or cable and were never subject to the conversion regime imposed on the national and commercial television broadcasters. Their conversion to digital transmission was left to market forces. However, despite the lack of regulation, subscription television broadcasters have made the conversion to digital 228 and did so at greater speed than the national and commercial broadcasters.

Digital community television services [14.390] Like the national and commercial television broadcasters, community television broadcasters invariably use the broadcasting services bands to deliver their services. However, unlike the national and commercial television broadcasters, community television broadcasters were not allocated a portion of the spectrum that was made available for digital transmission. Nevertheless, the Government envisaged that community television would also transition to a digital environment, though it did not clearly articulate when and by what method this would occur. While digital take up remained low, the position did not demand a quick resolution. However, as the switch to digital television gained momentum, community television was left “marooned on analogue” 229 and lost audience share and sponsorship revenue as a result. 230 Options for the digital transmission of community television services were explored by the House of Representatives Standing Committee on Communications, Information Technology and the Arts in 2007, 231 but it was not until 9 November 2009 that the Government announced a pathway for community television broadcasters to transition to digital. The government announced that it would temporarily allocate vacant spectrum, 225 226

These obligations are discussed in [14.1000]-[14.1140]. BSA, s 123(5).

227

Productivity Commission, Broadcasting Report No 11 (2000), p 222

228

Commonwealth Government, Department of Broadband, Communications and the Digital Economy, Sport on Television: A Review of the Anti-siphoning Scheme in the Contemporary Digital Environment (2010), p 7. Foxtel utilises digital technology to deliver interactive sports and games, on demand news, voting, an integrated electronic program guide and a personal digital recorder, Foxtel iQ.

229

Senator Conroy, Minister for Broadband, Communications and the Digital Economy, Digital Pathway for Community TV (Media Release, 4 November 2009). E Rennie and J Thomas, “Analogue Nation, Digital Community” in A Kenyon (ed), TV Futures: Digital Television Policy in Australia (2007), pp 364, 369. House of Representatives Standing Committee on Communications, Information Technology and the Arts, Parliament of Australia, Community Television: Options for Digital Broadcasting (2007).

230 231

[14.390] 839

Australian Media Law

previously known as Channel A, 232 to community television stations, thereby allowing Channel 31 in Melbourne and Geelong, TVS in Sydney, QCTV in Brisbane and Channel 31 Adelaide to simulcast in digital until the switch to digital only in the capital cities at the end of 2013. Moderate funding was also allocated to community broadcasters to enable them to purchase equipment and access transmission facilities. These stations commenced digital broadcasts in 2010. 233 West TV, a new community television licensee in Perth, also commenced digital-only broadcasts in 2010. In 2009, the Minister for Broadband, Communications and the Digital Economy acknowledged the need to allocate a permanent community television channel before final switch-over, and that digitising Channel 31 was one option. 234 However, as noted in [14.90], the Abbott Government has announced that it will not renew transmitter licences for community television beyond 2015. It is the Government’s expectation that community television will move to the internet.

Planning for digital radio transmission [14.400] Radio was the last significant media platform to remain analog only. In October 2005, following a number of investigations, reports and delays, 235 the government announced its policy framework for the introduction of digital radio services. 236 Draft legislation to implement the policy emerged in 2007 and was the subject of an inquiry by a Senate Standing Committee. 237 Despite harbouring misgivings about the many difficulties surrounding its introduction, the Committee recommended that digital radio should not be deferred any longer, and the Broadcasting Legislation Amendment (Digital Radio) Act 2007 (Cth) was duly enacted. 238 The key features of Australia’s digital radio regime are described in this section.

232 233

See [14.1340]. The community television stations are now called TVS (Sydney), C31 (Melbourne), 44 Adelaide, 31 Digital (Brisbane) and West TV (Perth). They are broadcast in standard definition on digital Channel 44.

234

Senator Conroy, Minister for Broadband, Communications and the Digital Economy, “C31 Digital Community TV Forum” (Speech delivered 9 November 2009), at http://www.minister.dbcde.gov.au/media/speeches/2009/ 070. See, for example: Digital Radio Advisory Committee, A Discussion Paper on Digital Radio Broadcasting in Australia (1996); Australian Broadcasting Authority, Digital Radio Study Group; Digital Radio Technology Update (1993); Digital Radio Study Group Report (2003); Australian Broadcasting Authority, Spectrum for Digital Radio (2005). The history of digital radio in Australia is traced in Dr R Jolly, Going Digital – Digital Terrestrial Radio for Australia (Research Paper No 18, Parliamentary Library, Parliament of Australia, 2008-9).

235

236 237

238

Senator Helen Coonan, Minister for Communications, Information Technology and the Arts, “Framework for the Introduction of Digital Radio” (Media Release, 14 October 2005). Senate Standing Committee on the Environment, Communications, Information Technology and the Arts, Parliament of Australia, Inquiry into Broadcasting Legislation Amendment (Digital Radio) Bill 2007 [Provisions] and Radio Licence Fees Amendment Bill 2007 [Provisions] (2007). The scheme was subsequently modified by the Broadcasting Legislation Amendment (Digital Radio) Act 2007 (Cth).

840 [14.400]

Chapter 14 – Regulation of the Media

Potential advantages of digital radio over analog radio [14.410] The main advantages of digital radio are improved reception, better audio quality and reduced interference. 239 Moreover, like digital television, digital radio technology can deliver a greater quantity of information using the same amount of spectrum than analog radio transmission. This allows for an increased number of radio stations delivering a greater variety of content, increasing audience choice. 240 Other benefits include greater ease of tuning (because channels are identified by name rather than by frequency) and the ability to pause or rewind or store data for later listening. 241 Some digital radio receivers have small screens which enables the display of data such as program associated text (eg, the screen might display the name of the song that is playing and the artist or it might display information that supplements an interview that is being conducted etc), still images such as maps or graphics (eg, an album cover for a song being played, a station logo, advertising etc) and data services such as news, traffic and weather updates. 242 However, digital radio has limited capacity for interactivity and direct user choice. 243

Options for the introduction of digital radio in Australia [14.420] The Government considered three models for the introduction of digital radio. Each option is explained and evaluated in detail in the Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Radio) Bill 2007. Option A was to defer the introduction of digital radio in Australia, in view of the fact that digital radio was an unknown technology and there were serious concerns about its ability to service regional Australia. Deferring its introduction would allow time to see whether the technology would develop to the point where digital radio is capable of matching the success of analog radio. 244 The Government rejected this option, maintaining that a deferral would “delay access to the public benefits arising from consumer demand for digital radio and potentially affect the commercial viability of the operations of existing broadcasters with a negative impact on the quality and

239

240 241 242

243

244

All these benefits are listed in Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Radio) Bill 2007 (Cth), p 6. See also: Jolly Going Digital – Digital Terrestrial Radio for Australia (Research Paper No 18, Parliamentary Library, Parliament of Australia, 2008-9), pp 6-7; Commonwealth Government, Department of Broadband, Communications and the Digital Economy, Technologies For Digital Radio Services in Regional Australia Discussion Paper (2010), p 5. Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Radio) Bill 2007 (Cth), p 6. This feature is only available on select digital radio receivers. This additional content is referred to in the BSA as “digital program enhancement content”. When delivered by a commercial, community or national radio broadcaster providing a digital radio service, it is taken to be a “radio program”, thereby allowing these broadcasters to provide this content under their existing licences: s 8AB. This “gives effect to the Government’s intention that broadcasters and consumers should benefit from the advantages afforded by digital technology”: Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Radio) Bill 2007 (Cth) Item 15. This enhanced content is restricted to content in the form of text or still images; it cannot consist of animation or moving images unless the Minister determines otherwise. However, the content need not be linked to the subject matter of the program. Department of Communications, Digital Radio: Reviews to be Conducted under Section 215B of the Broadcasting Services Act 1992 and Section 313B of the Radiocommunications Act 1992, Discussion Paper (December 2013) p 10. Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Radio) Bill 2007 (Cth), p 10.

[14.420] 841

Australian Media Law

diversity of existing analogue radio services”. 245 Option B contemplated that digital radio might be employed as a replacement technology for analog transmission, with services to be introduced via the full conversion of existing analog radio services to digital in the same manner as digital television. 246 Option B was deemed to be unfeasible for three principal reasons: spectrum limitations (insufficient spectrum was available in most markets to enable all the incumbent radio broadcasters to move to digital); technical constraints (the most developed digital radio technology at the time – DAB – was not capable of providing the same level of coverage in regional areas as the existing analog AM and FM services); and an anticipated slow consumer take up based on overseas experience (meaning that there would need to be an extended simulcast period before analog closure would be a viable proposition and probably an extended moratorium on new digital-only audio services). 247 Under Option C, digital radio would be treated as a supplementary technology to analog transmission, rather than a replacement technology, with services to be introduced via a progressive or staged approach. 248 This “managed introduction model” was selected by the Government as the most desirable implementation option, primarily because it is capable of operating within the aforementioned spectrum and technical constraints. Moreover, it does not involve a simulcast period pending switch-off, since it concedes that analog radio transmission will continue for the foreseeable future. It also allows scope for appropriate pathways for new and competitive entry. 249 Since digital radio transmission does not replace analog transmission, and therefore does not need to replicate it pending a switch off, the take up rate is dependent on the extent to which consumers value the additional services that it offers. Accompanying the introduction of digital radio was the establishment of a new category of service called “restricted datacasting services” which is designed to enable innovative data services provided by non-radio broadcasters to be transmitted on the digital radio platform. 250 Restricted datacasting services are a subset of datacasting services and are discussed in [14.1260]-[14.1270]. They cannot be provided by commercial radio licensees during the moratorium period. 251

245

246 247 248 249 250

251

Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Radio) Bill 2007 (Cth), p 10 The argument was that the commercial broadcasters needed to secure a digital footing to enable them to compete with other emerging digital products: p 11. Commercial Radio Australia argued strongly in favour of a full conversion approach: Commercial Radio Australia, Response to Digital Radio Study Group Report and Issues Paper (2005). Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Radio) Bill 2007 (Cth), pp 13-14. Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Radio) Bill 2007 (Cth), pp 10. Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Radio) Bill 2007 (Cth), pp 8, 17-18. Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Radio) Bill 2007 (Cth), pp 2, 24. In particular, “it was thought that niche services, such as information only programs, educational programs or interactive computer games, might be provided on these services”: Department of Communications, Digital Radio: Reviews to be Conducted under Section 215B of the Broadcasting Services Act 1992 and Section 313B of the Radiocommunications Act 1992, Discussion Paper (December 2013). To date this has not occurred. See [15.130].

842 [14.420]

Chapter 14 – Regulation of the Media

Technical issues [14.430] Two technical aspects had to be resolved before digital radio could be introduced: what technology would be used to deliver digital radio services and what spectrum would be available for its delivery. Digital radio is available in many technical formats 252 and there was a lot of debate about the merits of these competing technologies and their suitability for Australian conditions. The technology known as Digital Audio Broadcasting technology (DAB) was the most advanced technology at the time. 253 This meant that a wide range of affordable receivers would be immediately available in Australia. 254 However, DAB technology had a major shortcoming: it is not well suited to serving regional and remote markets because it cannot provide the same level of coverage in these areas as the existing AM and FM services. 255 The Government ultimately decided to use DAB technology, but to restrict digital radio to metropolitan areas in the short term and defer its introduction in regional and remote areas until adequate and appropriate technology is developed to serve these areas. However, by the time digital radio was ready to commence, an enhanced version of DAB had been developed – DAB+ – and it is this technology that is currently being used to provide digital radio services in metropolitan areas. In 2011 the Department of Broadband, Communications and the Digital Economy conducted a statutory review of the relative merits of various terrestrial and satellite technologies for digital radio broadcasting services and restricted datacasting services in regional areas. Submissions to that review exhibited a preference for DAB+ as the primary digital radio technology in regional Australia, supplemented by Digital Radio Mondiale (DRM) in areas where DAB+ is unable to provide adequate coverage. Finding unused spectrum that could be used for digital radio was problematic, especially in Sydney and Melbourne, where most of the spectrum in those parts of the broadcasting services bands most suitable for digital radio was already dedicated to the delivery of digital and analog television services and defence communications. 256 These spectrum constraints 252

253

They include: Digital Audio Broadcasting (DAB), Enhanced Digital Audio Broadcasting (DAB+), High Definition (HD) Radio, Satellite Digital Audio Radio Services (SDARS), Digital Radio Mondiale (DRM), Terrestrial Integrated Services Digital Broadcasting (ISDB-T), XM Satellite Radio and Sirius Satellite Radio. See: Jolly, Going Digital – Digital Terrestrial Radio for Australia (Research Paper No 18, Parliamentary Library, Parliament of Australia, 2008-9), pp 7-15; Commonwealth Government, Department of Broadband, Communications and the Digital Economy, Technologies For Digital Radio Services in Regional Australia Discussion Paper (2010), pp 6-14. DAB remains the leading world standard for digital radio, particularly in Europe. It is also the technology used by many car manufacturers for car radios.

254

Commonwealth Government, Department of Broadband, Communications and the Digital Economy, Technologies For Digital Radio Services in Regional Australia Discussion Paper (2010), p 23

255

Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Radio) Bill 2007 (Cth), p 8. The major challenges in providing digital radio in regional Australia are “the need to cover relatively large geographic areas with small and dispersed populations (particularly in inland regions), coverage in coastal and mountainous terrain and availability of spectrum (particularly in regional areas close to major metropolitan centres)”: Department of Broadband, Communications and Digital Economy, Review of Technologies for Digital Radio in Regional Australia (October 2011), p 7. Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Radio) Bill 2007 (Cth), p 8. As already explained, the paucity of available spectrum was one reason why a conversion model was rejected; there was insufficient spectrum to simulcast analog and digital signals.

256

[14.430] 843

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made it likely that some digital radio services would need to be transmitted outside the broadcasting services bands. 257 Accordingly, the definition of “broadcasting services bands” was extended to accommodate the transmission of digital radio services and restricted datacasting services outside the broadcasting services bands. 258 The position may improve now that analog television has switched off, as the Minister has directed the ACMA to make spectrum available for digital radio services in each metropolitan licence area. 259

Who can provide digital radio services? [14.440] Digital radio is being introduced in two stages: first in metropolitan areas (defined as the five mainland capital cities and Western Suburbs Sydney RA1) 260 and in regional and remote areas at a later unspecified date. 261 The Government decided that the spectrum that was available for digital radio services should initially be made available to the national broadcasters, to incumbent broadcasting services bands commercial radio broadcasters and to “designated community radio broadcasters”, which essentially means community radio broadcasting stations that use the broadcasting services bands and that have, or are deemed to have, 262 a licence area that is the same as the licence area of a commercial radio broadcaster. 263 They are referred to as wide coverage community radio broadcasters to distinguish them from low powered community radio services which service small towns and which, like narrowcasting services, are not included in the initial phase of the digital radio scheme. 264 The provision of digital radio services by operators of services not delivered using the broadcasting services bands, including s 40 licensees, is a commercial decision for the relevant operators. 265 257 258

Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Radio) Bill 2007 (Cth), p 38. See [14.160].

259 260

Australian Communications and Media Authority (Realising the Digital Dividend) Direction 2010, cl 5. BSA, s 8AC. Western Suburbs Sydney RA1 is deemed, for the purposes of digital radio, to be the same licence area as Sydney: s 8AD(1). Of the 102 commercial radio licence areas in existence, only five are metropolitan. The rest are regional and remote. Licences that are defined as regional might still serve large populations, such as Canberra, Darwin, Hobart, Newcastle, the Gold Coast and Cairns.

261

As already explained, this decision was driven by technical considerations; DAB technology was simply not adequate for regional and remote areas. The precise timing of its introduction in non-metropolitan areas will depend on the availability of suitable technology, the extent to which the government is prepared to fund regional radio broadcasters to roll out the services and the level of broadcaster interest in providing them: Senator Helen Coonan, Minister for Communications, Information Technology and the Arts, “Framework for the Introduction of Digital Radio” (Media Release, 14 October 2005); Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Radio) Bill 2007 (Cth), p 22. The licence area of a community radio broadcasting licensee might be deemed to be the same as the relevant commercial radio broadcasting licence area under s 8AD(1) or (2) of the BSA or under a determination made by the ACMA under s 8AD(3). The ACMA has made the Broadcasting Services (Deemed Digital Radio Licence Areas) Determination 2007. BSA, s 8AA. The definition of “designated community radio broadcasting service” also stipulates that the service(s) provided under the community radio broadcasting licence must satisfy the conditions set out in a legislative instrument made by the ACMA. No legislative instrument is currently in force. Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Radio) Bill 2007 (Cth), Item 26. Senator Helen Coonan, Minister for Communications, Information Technology and the Arts, “Framework for the Introduction of Digital Radio” (Media Release, 14 October 2005).

262

263

264 265

844 [14.440]

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Transmission arrangements – processes for owning the transmission licence and accessing multiplex capacity [14.450] Each analog radio service is provided on a separate frequency using separate transmission equipment, and each analog radio licensee holds its own individual transmitter licence which authorises it to use the transmitter to convey the service it is licensed under the BSA to provide. Digital radio operates in a completely different manner. The DAB platform involves the delivery of multiple services in the one geographic area on one channel. That is, the separate audio streams of the various digital radio services in an area are sent to a transmitter which combines and encodes them into a single data stream and transmits them as one wideband channel on a single frequency. 266 Accordingly, digital radio licensees do not need an individual transmitter; they need to obtain access to the shared transmission infrastructure in their area, which is known as a multiplex. 267 To accommodate these shared transmission platforms, the Radiocommunications Act 1992 was amended to provide for a new category of transmitter licence called a digital radio multiplex transmitter licence (DRMTL), 268 which remains in force for 15 years. 269 Commercial radio broadcasting services bands licences and designated community radio broadcasting licences that respectively authorise the licensee to provide one or more digital commercial or community radio broadcasting services are subject to the condition that the licensee must not provide a digital service under the licence unless it is provided by a multiplex transmitter and the operation of that transmitter is authorised by a DRMTL. 270 This shared transmission infrastructure created the need to make two important regulatory decisions. The first decision was who should be eligible to own the DRMTL and on what terms. Most countries that use DAB or DAB+ technology to deliver digital radio services separately licence the multiplex transmitter and the content providers. 271 However, the Australian Government decided that the incumbent commercial, national and wide coverage community broadcasters should be given first opportunity to own the DRMTL and manage the multiplex. Since there was insufficient spectrum to provide multiplex capacity for all commercial, community and national radio broadcasters, the second decision that had to be made was how the multiplex capacity should be allocated and on what terms. The challenge for the Government was to create a system that would ensure that the multiplex is managed fairly and in the interests of all broadcasters providing digital radio services. 272 This system is described in [14.460]-[14.480]. 266

Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Radio) Bill 2007 (Cth) Items 17, 19 & 21; R Jolly and P Pyburne, Broadcasting Legislation Amendment (Digital Radio) Bill 2008 (Bills Digest No 31, Australian Parliament, 2008-9).

267

Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Radio) Bill 2007 (Cth), Items 17, 19 & 21. Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Radio) Bill 2007 (Cth), Item 2. Radiocommunications Act 1992 (Cth) s 103(6). The licence conditions for DRMTLs are contained in s 109B. BSA, s 43D(1)(2); s 87B.

268 269 270 271 272

Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Radio) Bill 2007 (Cth), Item 15. Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Radio) Bill 2007 (Cth), Items 17, 19, 21; Jolly and Pyburne, Broadcasting Legislation Amendment (Digital Radio) Bill 2008 (Bills Digest No 31, Australian Parliament, 2008-9), p 4.

[14.450] 845

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Before the ACMA could issue multiplex licences, it had to prepare digital radio channel plans. 273 Digital radio is planned and licensed on the basis of the existing BSA licence areas and must be consistent with the spectrum plans, frequency band plans and licence area plans that are already in force. Planning involved alloting frequency channels for use by the multiplex transmitter licensees and the national broadcasters, determining the number and types of multiplex transmitter licences to be issued for each area and devising technical specifications for each transmitter.

Foundation and non-foundation DRMTLs [14.460] The digital radio regime distinguishes between foundation and non-foundation DRMTLs. 274 Foundation DRMTLs are category 1 and category 2 DRMTLs that provide “standard access entitlements” for incumbent digital commercial, community and national radio broadcasting operators to one of the multiplexes in their licence area. As explained below, they are essentially designed to accommodate the digital needs of the incumbent commercial and designated community, and to a lesser extent, national operators. 275 Foundation DRMTLs are issued to a joint venture company formed by the existing broadcasters for an administrative fee only. The ACMA is not permitted to licence more foundation DRMTLs in a licence area than is necessary to meet the standard access entitlements that are in existence, or likely to come into existence, in that area. 276 Non-foundation DRMTLs are any additional category 1 or 2 licences issued in an area which do not provide for standard access entitlements. 277 They are intended to accommodate future digital radio broadcasters and are issued by way of a price based system. 278 The ACMA cannot issue non-foundation DRMTLs unless it has first issued enough foundation licences to provide sufficient capacity to meet the standard access entitlements of the incumbent commercial radio broadcasters. 279

DRMTL licence categories [14.470] The regime provides for three categories of DRMTLs. A category 1 DRMTL provides for the transmission of one or more digital commercial or designated community radio broadcasting services and/or one or more restricted datacasting services. 280 A category 1 273 274 275 276

277 278 279 280

Radiocommunications Act 1992 (Cth), s 44A. Radiocommunications Act 1992 (Cth), ss 98C, 98D. Explanatory Memorandum to the Broadcasting Legislation Amendment Bill 2007 (Cth), Items 136 to 138 and 143. Radiocommunications Act 1992 (Cth), s 98E. Since the foundation DRMTLs are subject to special provisions that are only suitable for multiplexes accommodating standard access entitlements, it is appropriate that their number is capped: Explanatory Memorandum to the Broadcasting Legislation Amendment Bill 2007 (Cth), Item 155. Explanatory Memorandum to the Broadcasting Legislation Amendment Bill 2007 (Cth), Items 136 to 138 and 143. Explanatory Memorandum to the Broadcasting Legislation Amendment Bill 2007 (Cth), Items 136 to 138 and 143. Radiocommunications Act 1992 (Cth), s 102F. Radiocommunications Act 1992 (Cth), s 5 (definition of “category 1 digital radio multiplex transmitter licence”).

846 [14.460]

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DRMTL can be a foundation or non-foundation licence. 281 The Radiocommunications Act 1992 (Cth) provides for a two stage allocation process for allocating foundation category 1 licences. 282 Under stage one, incumbent commercial and designated community radio broadcasters in a licence area are provided with an opportunity to elect to jointly operate the multiplexes for their initial digital radio services in their licence area and to jointly hold a foundation category 1 licence through a joint venture company for a nominal administrative fee. All commercial and designated community licensees elected to take this option. 283 Had they not opted to do so, the ACMA could have allocated the foundation category 1 licence to a third party under a price based system. 284 Non-foundation category 1 licences are issued via a price based allocation system. 285 The ACMA can only issue a DRMTL to a company that is formed in Australia and has a share capital. Whereas each individual commercial radio broadcaster had the opportunity to be directly involved in the ownership and control of a category 1 multiplex licence, the method by which designated community radio broadcasters could participate in the ownership and operation of the multiplexes was more indirect. The designated community radio broadcasters in each capital city who wanted to be involved had to do so via a collective arrangement by joining a digital representative company (DRC). 286 The DRC must be a company formed in Australia with a share capital and the company’s promoters must invite each incumbent digital community radio broadcasting licensee in the licence area to subscribe for equal shares in the company. 287 This collaborative management structure, which was imposed on a city by city basis, was regarded by community broadcasters as excessively onerous. 288 Once formed, the 281 282 283

284 285 286

287

288

Radiocommunications Act 1992 (Cth), s 98C. Radiocommunications Act 1992 (Cth), s 102C. Department of Communications, Digital Radio: Reviews to be Conducted under Section 215B of the Broadcasting Services Act 1992 and Section 313B of the Radiocommunications Act 1992, Discussion Paper (December 2013), p 13. Radiocommunications Act 1992 (Cth), s 102C(3). Radiocommunications Act 1992 (Cth), s 102C(4); 106 Radiocommunications Act 1992 (Cth), s 9C. The digital community broadcasting licensees for an area were required to give the ACMA a joint written notice that they had elected a DRC to be their nominated representative company. A number of other requirements are imposed on the DRC by Radiocommunications Act 1992 (Cth), s 9C. They are summarised in the Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Radio) Bill 2007 (Cth) Item 146. They include: invitations to subscribe for shares in the company had to be published on the ACMA’s website; there could be no discrimination between subscribers for shares in the company in relation to the consideration payable; the total amount of money payable as consideration for the issue of the shares in the company could not be substantially in excess of the total amount that would be required for the commercially viable operation of the company; the company must have a constitution which provides that only digital community radio broadcasting licensees for the relevant licence area can hold shares in the company; and the company’s constitution must provide that within 30 days of the allocation of a new digital community radio broadcasting licence the company will offer to issue equivalent shares to the new licensee with the amount payable not substantially in excess of the amount payable by incumbent licensees. Community broadcasters would have preferred collaboration to be at a national level or on a “communities of interest” level: Jolly and Pyburne, Broadcasting Legislation Amendment (Digital Radio) Bill 2008 (Bills Digest No 31, Australian Parliament, 2008-9), p 9.

[14.470] 847

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DRCs had to form joint venture companies with the commercial radio broadcasters in their respective licence areas. The joint venture companies could apply for a DRMTL and, if successful, operate the transmission multiplex. The Act imposes a number of obligations on a joint venture company formed to hold a DRMTL. The most important requirement is that the promoters of the company must invite each incumbent commercial broadcaster and the DRC, if one is formed, to subscribe for shares in the company. These are the only persons entitled to subscribe for shares. If this invitation was accepted by each licensee, which it was, the commercial licensees would be issued with an equal number of shares which would, in aggregate, total seven-ninths of the shares. The DRC, if it accepted the invitation, which it did, would hold two-ninths of the shares. 289 The ACMA declared nine DRMTL licences across the State capital cities to be foundation category 1 DRMTL licences. 290 Eight foundation category 1 DRMTL licences have been allocated across the mainland capital cities. 291 A category 2 DRMTL provides for the transmission of one or more digital commercial, community or national radio broadcasting services and/or one or more restricted datacasting services in a licence area. 292 Category 2 licences can be foundational or non-foundational. 293 The same two stage allocation process for a foundation category 2 licence is laid down, except that in this instance, the joint venture company is formed by the commercial, designated community and national broadcasters. The BSA lays down requirements that must be met by the joint venture company in order for it to be eligible to hold the licence. 294 Similarly to foundation category 1 licences, the most important requirement is that the promoters of the company must have invited each incumbent commercial broadcaster and the DRC, if one is formed, and each national broadcaster to subscribe for shares in the company. These are the only persons entitled to subscribe for shares. If this invitation was accepted by each licensee, the commercial licensees would be issued with an equal number of shares which could in aggregate total five-ninths of the shares, the DRC would hold two-ninths of the shares and each national broadcaster would hold one-ninth of the shares. 295 The ACMA has not yet declared any foundation category 2 DRMTLs. A category 3 DRMTL is a licence that provides for the transmission of one or more digital national radio broadcasting services and one or more restricted datacasting services, where 289

290 291

292 293 294 295

Had the initial offering not been fully subscribed, those persons who subscribed in response to the initial offer could have subscribed for the remaining shares: Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Radio) Bill (Cth), Item 161. Radiocommunications (Foundation Category 1 Digital Radio Multiplex Transmitter Licences) Declaration 2007. The Hobart DRMTL licence, although declared, has not been allocated. This is because Hobart was subsequently excluded from the definition of metropolitan licence, and therefore from the requirement to commence digital radio by 1 July 2009: Broadcasting Legislation Amendment (Digital Radio) Act 2008 (Cth). Radiocommunications Act 1992 (Cth), s 5 (definition of “category 2 digital radio multiplex transmitter licence”). Radiocommunications Act 1992 (Cth), s 98D. Radiocommunications Act 1992 (Cth), s 102D. If the initial offering is not fully subscribed, persons who subscribed in response to the initial offer are entitled to be issued the remaining shares.

848 [14.470]

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each relevant restricted datacasting licence is held by a national broadcaster. 296 This allows the national broadcasters to jointly and separately manage a multiplex in all metropolitan markets. A category 3 licence can only be awarded to a company in which each national broadcaster owns the shares or to a company in which only one national broadcaster holds the shares but does so with the consent of the other national broadcaster. 297 The ACMA has licensed a category 3 DRMTL in each mainland State capital city.

Access entitlements and access undertakings 298 [14.480] As explained in [14.450], the Australian regime allows the incumbent radio broadcasters to own and operate the multiplex transmitter licences. This arrangement gives these licensees the capacity to act as gatekeepers in relation to the multiplex facilities in a market. 299 In order to ensure that the multiplex licensees provide content service providers with access to transmission capacity in a fair manner on terms that are open, efficient and non-discriminatory, the digital radio regime establishes three types of access entitlements for content providers for the category 1 and 2 foundation and non-foundation licences: standard access entitlements, excess-capacity entitlements and distributed capacity entitlements. Each DRMTL licensee must give access undertakings to the Australian Competition and Consumer Commission (ACCC) that the first and future licensee, and any person authorised by the licensee to operate a multiplex transmitter under the licence, will give effect to the access entitlements. 300 Thus, from the perspective of the DRMTL licensee, these access entitlements are access obligations. 301 The ACCC may accept or reject an undertaking and will do so against published criteria. 302 The standard access obligations require the DRMTL to give content providers access to the fraction of the multiplex capacity to which they are respectively entitled as a standard access entitlement. 303 An incumbent digital commercial radio broadcasting licensee is entitled to claim access to one-ninth of the transmission capacity on a foundation DRMTL. 304 This capacity must be used to provide one or more digital radio services in the area under a digital radio broadcasting licence. The entitlement can be claimed only in relation to one multiplex in a licence area and cannot be transferred. Two-ninths of the multiplex capacity under a foundation DRMTL is collectively reserved for digital community radio licensees nominated by 296

Radiocommunications Act 1992 (Cth), s 5 (definition of “category 3 digital radio multiplex transmitter licence”).

297 298

Radiocommunications Act 1992 (Cth), s 102E. See generally, Radiocommunications Act 1992 (Cth), Pt 3.3 Div 4B; Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Radio) Bill (Cth). Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Radio) Bill (Cth), Item 66. Radiocommunications Act 1992 (Cth), s 118ND. Radiocommunications Act 1992 (Cth), ss 118NL, 118NM, 118NN. Radiocommunications Act 1992 (Cth), ss 118NF, 118NJ. The ACCC must keep a public register of all access undertakings and can enforce compliance in a court: Radiocommunications Act 1992 (Cth), ss 118NK, 118NZ, 118P.

299 300 301 302

303 304

Radiocommunications Act 1992 (Cth), s 118NL. Radiocommunications Act 1992 (Cth), s 118NQ.

[14.480] 849

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the DRC. 305 Since community broadcasters have a joint access right to capacity, they must collectively determine how this is to be shared between the individual broadcasters. 306 If an agreement cannot be reached about what fraction of multiplex capacity each nominated community broadcaster is entitled to use, the capacity is to be distributed evenly among the nominated community broadcasters. The national broadcasters are each entitled to access one-ninth of the multiplex capacity of a foundation category 2 DRMTL. 307 The capacity can be used only to provide national digital radio services. Each national broadcaster may transfer its standard access entitlement to the other national broadcaster. If the capacity on a foundation multiplex exceeds the aggregate of the standard access entitlements, the DRMTL is regarded as having “excess capacity”. The Radiocommunications Act 1992 provides a means of distributing this excess capacity in an equitable manner. 308 The DRMT licensee is required to ascertain the level of demand for access to the excess multiplex capacity from the content service providers who are entitled to provide one or more digital content services in that licence area. If the supply exceeds the demand, each interested content service provider is accorded an entitlement to access the fraction of multiplex capacity sought by the provider. This is called an excess capacity access entitlement. If demand exceeds supply, an auction process must be used to determine which content providers are to have access to which fractions of the multiplex capacity. Once settled, this is also called an excess capacity access entitlement. The DRMTL licensee is obliged to give the content provider access to the fraction of the multiplex capacity to which it is entitled under an excess capacity entitlement. 309 Persons who are licensed to offer restricted datacasting services also have the right to acquire unreserved capacity on a multiplex. When digital radio broadcasting commenced in Australia, there was excess multiplex capacity in each of the five metropolitan licence areas. That excess capacity was auctioned in November 2009 to the incumbent commercial broadcasters. Excess capacity access entitlements have now been exhausted in all capital cities except Brisbane. Distribution capacity access entitlements relate to the distribution of multiplex capacity on non-foundation DRMTLs, which have no standard access entitlements. 310 If supply exceeds demand, each interested content service provider is entitled to access to the fraction of multiplex capacity sought by the provider. This is called a distributed capacity access entitlement. If demand exceeds supply, an auction process must be used to determine which content providers are to have access to which fractions of the multiplex capacity. Once settled this is also called a distributed capacity access entitlement.

305 306 307 308

Radiocommunications Act 1992 (Cth), s 118NR. Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Radio) Bill 2007 (Cth), Item 172. Radiocommunications Act 1992 (Cth), s 118NS. Radiocommunications Act 1992 (Cth), s 118NT.

309 310

Radiocommunications Act 1992 (Cth), s 118NM. Radiocommunications Act 1992 (Cth), s 118NU.

850 [14.480]

Chapter 14 – Regulation of the Media

The total fraction of multiplex capacity that a digital commercial radio broadcasting licensee can obtain as standard access, excess access and distributed access entitlements is capped at two-ninths of multiplex capacity regardless of how many DRMTLs are issued for that area. 311

What services can be provided? [14.490] Unlike the position regarding digital television, the entities that provide digital radio services are not subject to a compulsory simulcast requirement and there are no restrictions on the types of additional radio and data services that they can offer. Incumbent commercial radio broadcasters are permitted to provide their existing analog radio services, and one or more digital radio services, using their existing licence. Any new digital commercial radio licensees will be able to provide multiple digital services. However, the BSA imposes a cap on the amount of multiplex capacity that can be used by a commercial radio broadcasting licensee to simulcast its analog service. 312 This is intended “to ensure the development of new and innovative digital-only programming, while not unreasonably constraining a broadcaster’s legitimate right to replicate a reasonable amount of their analog service in digital”. 313 If there is only one category 1 or one category 2 DRMTL for the licence area of the licence, the licensee cannot use more than one-ninth of multiplex capacity under the DRMTL to provide a digital commercial radio broadcasting service that passes the “shared content test” in relation to an analog commercial radio broadcasting service provided under its licence or another commercial radio broadcasting licence that has the same licence area as that licence. A digital commercial radio broadcasting service passes the shared content test at a particular point in time if the program content of at least 50% of the total number of hours of programs broadcast on the digital service between 6 am and midnight during the 6-month period ending at that time is the same as the program content of at least 50% of the total number of hours of programs broadcast by an analog service between 6 am and midnight during the same period. 314 This effectively means that commercial radio broadcasters are free to use their standard access entitlements to provide a simulcast service, or a service that includes more than 50% shared content, but cannot do so on additional capacity over and above the one-ninth standard access entitlement. Where there are two or more category 1 or 2 DRMTLs for the licence area of the licence, a commercial radio broadcasting licensee cannot use more than a designated fraction of the total multiplex capacities under those DRMTLs to provide content that passes the shared content test in relation to an analog commercial radio broadcasting service provided under its licence or under another commercial radio broadcasting licence that has the same licence area as the first licence. The designated fraction is the equivalent of one ninth of the capacity of any one digital radio multiplex in the licence area. 311 312

Radiocommunications Act 1992 (Cth), s 118NV. BSA, s 43D.

313 314

Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Radio) Bill 2007 (Cth), Item 40. Certain material can be replicated without being regarded as shared content. This includes advertising or sponsorship material: Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Radio) Bill 2007 (Cth), Item 40.

[14.490] 851

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Digital commercial and community radio services are subject to existing content requirements, including standards, codes of practice and licence conditions. 315

Moratorium [14.500] There is a six-year moratorium on the issue of new commercial digital radio licences that use the broadcasting services bands. 316 The moratorium starts on the digital start-up day for the licence area in mainland capital city markets and is designed to provide incumbent commercial broadcasters with “a level of stability and certainty during the digital radio investment phase”. 317 The moratorium is consistent with the protection accorded to commercial television broadcasters during their transition to digital. The moratorium is contingent on each commercial radio broadcasting licensee that is authorised to provide digital commercial radio broadcasting services actually providing at least one digital commercial radio broadcasting service under the licence in the licence area. 318 If such a service is not being provided, the ACMA must notify the licensee that its licence no longer authorises it to provide digital commercial radio broadcasting services in the licence area and from that point the licence is taken to have been allocated as a licence to provide an analog commercial radio broadcasting service. The ACMA must then proceed to allocate a single commercial radio broadcasting licence for the licence area of the first licence as a licence to provide digital commercial radio broadcasting services in that area. The moratorium expires on 30 June 2015 for the metropolitan licence areas. There is no moratorium on restricted datacasting services or on the delivery of digital radio services outside the broadcasting services bands; accordingly, digital radio services can be provided over cable, the internet or by satellite. 319

Commencement and operation [14.510] It was left to ACMA to declare a particular day to be the start-up day for digital radio services in a licence area. 320 A start-up day of 1 July 2009 was declared for commercial digital radio services in Adelaide, Brisbane, Melbourne, Perth and Sydney. 321 Designated community radio broadcasters began their digital ratio services in these areas in May 2011. 322 The services currently being provided are simulcasts of the AM and FM stations and a range 315 316

BSA, s 123(6), (7). BSA, s 35C.

317

Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Radio) Bill 2007 (Cth), Item 16.

318

The ACMA may, by legislative instrument, specify circumstances in which a commercial radio broadcasting licensee is taken to be providing a digital commercial radio broadcasting service under the licence in the licence area: s 35D(4). Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Radio) Bill 2007 (Cth), Item 18. BSA, s 8AC

319 320 321

Hobart was exempted from the deadline entirely when it became evident that it was not feasible for that city.

322

Department of Communications, Digital Radio Reviews to be Conducted under Section 215B of the Broadcasting Services Act 1992 and Section 313B of the Radiocommunications Act 1992 Discussion Paper (December 2013).

852 [14.500]

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of new digital stations providing comedy, chill, sports, music, unsigned artists and special event programming. 323 Pop up stations can also be created for an event 324 or a particular artist or to respond to an emergency such as floods or fires. 325 Digital radio take-up has exceeded expectations, both in terms of the purchase of equipment (1.5 million digital radio devices have been purchased) 326 and time spent listening. Approximately 64% of Australians reside in areas covered by digital radio and household penetration is approximately 25%. 327 The BSA provides for the start-up of digital radio in non-metropolitan areas but does not specify a date. 328 Digital radio trials using DAB+ are being conducted in Canberra and Darwin and this will continue until 30 June 2015. 329 Key industry representatives are keen to expand digital radio beyond the five mainland capital cities and have asked the Minister of Communications to establish a Joint Digital Radio Industry Planning Committee to plan a timetable for regional roll out. It has been argued that internet radio, which is streamed over telecommunications networks or delivered to mobile phones and which can reach a global audience with an unlimited number of stations, will render digital radio an outmoded type of service. However, although commercial and national radio broadcasters are increasingly streaming their services online and through mobile phones and other connected devices – including connected cars 330 – the majority of radio listening is still via broadcast radio and it has been suggested that this is likely to remain the case for the foreseeable future, 331 as streamed radio uses a lot of data, is a drain on mobile phone batteries and is less spectrum efficient than broadcast radio. 323

324 325

326

327 328

329 330

331

In 2014 there were 38 digital only stations including: Buddha Radio, Koffee, The EDGE, Loveland, Mix 80s, Mix 90s, Gorilla Radio, Zoo Sky Sports Radio, Sky Racing World, ABC Jazz, ABC Country, ABC Grandstand, SBS Radio 3, SBS Radio 4 and SBS PopAsia: Commercial Radio Australia. 2014 Digital Radio Report, pp 18-19. BSA, ss 18(3), (4) and (5) ensure that they cannot be treated as open narrowcasting services. The ABC has a special event station called ABC Extra. Australian Broadcasting Corporation, Submission to the Department of Communications, Digital Radio: Reviews to be Conducted under Section 215B of the Broadcasting Services Act 1992 and Section 313B of the Radiocommunications Act 1992 (March 2014), p 3. Department of Communications, Digital Radio: Reviews to be Conducted under Section 215B of the Broadcasting Services Act 1992 and Section 313B of the Radiocommunications Act 1992, Discussion Paper (December 2013), p 2. Increasing numbers of vehicle manufacturers are installing digital radios in new cars: Commercial Radio Australia. 2014 Digital Radio Report, p 42. The start-up day for digital radio in regional services is a day to be specified by the Minister by means of a legislative instrument – BSA, s 8AC(3)(b) – and the ACMA must declare the same start-up day provided it is satisfied that certain conditions are met. http://www.commercialradio.com.au/content/mediareleases/2014/2014-09-03-canberra-darwin-digitalradio-trials-ex. Department of Communications, Digital Radio: Reviews to be Conducted under Section 215B of the Broadcasting Services Act 1992 and Section 313B of the Radiocommunications Act 1992, Discussion Paper (December 2013), p 11. Australian Broadcasting Corporation, Submission to the Department of Communications, Digital Radio: Reviews to be Conducted under Section 215B of the Broadcasting Services Act 1992 and Section 313B of the Radiocommunications Act 1992 (March 2014) 7-8; Commercial Radio Australia, 2014 Digital Radio Report, p 10.

[14.510] 853

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Obtaining a licence to provide a broadcasting service Commercial television broadcasting services [14.520] The BSA provides for two broad scenarios in which terrestrial commercial television broadcasting licences can be allocated: one is where the service is to be provided using the broadcasting services bands; the other is where the service will use other delivery technology. The Act also makes provision for the allocation of additional terrestrial licences to incumbent licensees in under-served areas and establishes a licence regime for the allocation of satellite commercial television broadcasting licences as a means of dealing with digital black spots. Each of these four scenarios will be described. 332

Commercial television broadcasting services that use the broadcasting services bands [14.530] The licence allocation process for commercial television broadcasting services that use the broadcasting services bands differs from the licence allocation process for commercial television broadcasting services that utilise other delivery technologies. Licences for services in the former category must be allocated by way of a price based system determined by the ACMA in accordance with s 36. 333 Where a decision has been made that a commercial television licence is to be granted according to a price based system – such a decision can only be made if a broadcasting frequency for the proposed licence has been made available in a television licence area plan – the ACMA is to advertise for applications. 334 If more than one application is received, the applicants must bid for the licence. Once a licence to provide the service has been allocated, the holder is automatically entitled to a transmitter licence for that service. 335 Although s 36 makes provision for the allocation of new commercial broadcasting licences, the ACMA is required to ensure that the number of commercial television broadcasting licences that have the same licence area and are broadcasting services bands licences does not exceed three. 336 This provision gives legislative force to a Government announcement made on 30 November 2012 that no additional commercial television broadcasting licences would be made available to enable a fourth commercial television network. 337 332

There are currently 69 commercial television broadcasting licences, 64 of which are operating services: http://www.acma.gov.au/~/media/Licence%20Issue%20and%20Allocation/Information/pdf/ Commercial%20Television%20Broadcasting%20Licences%20LIC021.pdf.

333

The Minister may give specific directions to the ACMA regarding a determination, such as to include specified reserve prices for licences, which may be different for licences in different licence areas: s 36(2), (3).

334

BSA, s 38.

335

Radiocommunications Act 1992 (Cth), s 102. The related transmitter licence is not allocated for a price. Transmitter licences are subject to a number of conditions, including compliance with the Radiocommunications Act 1992, the technical planning guidelines and technical specifications: Radiocommunications Act 1992 (Cth), s 109. BSA, s 37A. Explanatory Memorandum to the Broadcasting Legislation Amendment (Convergence Review and Other Measures) Bill 2013 (Cth), Item 3.

336 337

854 [14.520]

Chapter 14 – Regulation of the Media

The fact that digital transmission has made it possible for licensees to multi-channel has made it necessary for the BSA to prescribe exactly what services a commercial television broadcasting licensee is authorised to provide. 338 During the lengthy period of time during which a commercial television licensee was obliged to simulcast its analog service, licensees were subject to restrictions on multi-channeling. These restrictions were progressively liberalised. Today, commercial television broadcasting licences authorise the licensee to provide one or more HDTV multi-channelled commercial television broadcasting services and one or more SDTV multi-channelled commercial television broadcasting services; there are no numerical restrictions. 339 This does not apply to commercial television broadcasting licences allocated under s 38C or s 40(1)

Commercial television broadcasting services that do not use the broadcasting services bands [14.540] Unlike a licence to provide a commercial broadcasting service using the broadcasting services bands, a licence to provide a commercial broadcasting service that does not utilise the broadcasting services bands only authorises the provision of the service. Persons who wish to provide such a service must secure access to other delivery technologies. Obtaining access to delivery technology can be expensive. In recognition of this, a licence to provide a commercial broadcasting service outside the broadcasting services bands is relatively straightforward and inexpensive to obtain. Section 40 permits a person who wishes to provide such a service to simply apply to the ACMA for the grant of a licence at any time. The licences are to be allocated on the basis of one licence per service. This means that these services are not authorised to multi-channel. 340 However, before allocating a commercial television licence, the ACMA must refer the application to the Minister. The Minister can direct the ACMA not to allocate the licence if he or she is of the opinion that the proposed service is likely to be contrary to the public interest. The applicant may seek merits review of this decision in the AAT. If the Minister is not of this view, the Minister must notify the ACMA that he or she has no objection to the allocation of the licence. A decision must be made within 60 days, otherwise the Minister is taken to have no objection to the allocation. Before allocating a licence, the ACMA must designate an area of Australia as the licence area of the licence. Licences are subject to the suitability requirements 341 and to a condition that the service will be provided in digital mode.

Additional licence regimes for under-served markets 342 [14.550] Special provision is made in the BSA for the allocation of an additional commercial television broadcasting licence to an existing commercial television licensee in markets where 338 339

Before the advent of digital television, commercial television broadcasting licensees were licensed to provide only one channel. BSA, s 41C.

340

Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Television) Bill 2006 (Cth), Item 13.

341 342

The suitability requirements are discussed in [14.700]. For a more detailed history and description of these regimes see M Armstrong, Communications Law and Policy in Australia (1992-), [5610]-[5615].

[14.550] 855

Australian Media Law

there is only one commercial television service. 343 The purpose is to give audiences in solus markets a greater diversity of services in a short time frame. The existing licensee need only apply and pay a cost recovery fee. 344 The ACMA has allocated five commercial television licences in solus markets. 345 A similar regime exists in relation to two-station commercial television markets. 346 In this case, the two existing licensees can either apply separately for the additional licence or form a jointly owned joint venture company to apply for the additional licence. If a joint venture company is formed and makes an application, or if only one licensee applies, the licence must be granted to that company for a cost recovery fee. If both licensees apply individually for the licence, the ACMA must allocate the licence to one of the applicants in accordance with a price-based system determined by the ACMA. The additional commercial television broadcasting service can only be provided in digital mode. The ACMA has allocated 14 commercial television licences in two station markets under this regime. 347

Commercial television broadcasting licences provided with the use of a satellite Main features of the scheme [14.560] Not all Australians are able to receive adequate terrestrial digital television services. Reception problems are primarily experienced in remote and regional areas, and in black spots in metropolitan areas. The government had to address the problem of poor digital reception pending analog switch off. In 2010, new licensing arrangements were put in place to “facilitate the delivery of digital television services by satellite to viewers who cannot receive an adequate terrestrial signal for the digital television services licensed for the area in which they live”. 348 These arrangements are contained in s 38C, which makes provision for the allocation of licences which authorise commercial television broadcasting services to be provided in digital mode with the use of a satellite. The service is known as Viewer Access Satellite Television (VAST). Commercial channels provided through the VAST service are delivered in three large licence areas created specifically for satellite services: South Eastern Australia TV3 (the area consisting of New South Wales, Victoria, South Australia, Tasmania, the Australian Capital Territory, Norfolk Island and the Jervis Bay Territory); Northern Australia TV3 (Queensland, the Northern Territory and the Coral Sea islands Territory); and Western Australia TV3 (Western Australia, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands). These three satellite licence areas overlay several existing terrestrial 343 344 345 346 347 348

BSA, s 38A. Section 38A does not apply where the parent licence is a s 38C satellite commercial television licence. Such a licensee cannot apply for an additional licence under s 38A: s 38A(1)(aa). The ACMA must grant the licence as soon as possible, provided certain conditions are satisfied: s 38A(2). This information was taken from registers maintained by the ACMA and published on its website: http://www.acma.gov.au. BSA, s 38B. This information was taken from registers maintained by the ACMA and published on its website: http://www.acma.gov.au Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Television) Bill 2010 (Cth), Outline.

856 [14.560]

Chapter 14 – Regulation of the Media

licence areas. One satellite service licence is allocated per licence area. Arrangements are also in place for the national broadcasting services to be provided by satellite, but these arrangements are not enshrined in the BSA. 349 In a similar vein to the additional broadcasting licence regimes, s 38C specifies who is eligible to apply for a satellite licence. Basically, s 38C contains a list of existing commercial television broadcasting licensees who hold terrestrial commercial television licences in licence areas that are within each of the three satellite licence areas, and provides that two or more of these licensees are eligible to form a joint venture company and apply for the satellite licence. Provision is made in the BSA for the allocation of licences where no joint venture company is formed, but as it happened, the licensees in the three areas are all joint venture companies. It is a condition of all s 38C licences that their commercial television broadcasting services be provided only in digital mode and with the use of a satellite. 350 Licensees must also comply with any technical standards for digital transmission by satellite determined by the ACMA. 351 It is important to emphasise that satellite-delivered commercial television is not made available to all viewers. Part 9C of the BSA provides for the development of conditional access schemes which lay down the circumstances in which people are permitted to receive commercial television services via satellite. Conditional access schemes must be developed for each satellite licence area by a body or association that represents commercial television broadcasting licences and must be registered with the ACMA. 352 The nub of the scheme is that a person will be able to access satellite delivered commercial television broadcasting services only if they cannot adequately receive the commercial television services that are delivered in their licence area via terrestrial transmission towers. There are four categories of reception areas. Category A reception areas are remote terrestrial licence areas which cannot receive adequate reception of terrestrial digital television services. Category B reception areas are areas that are known to be signal deficient, where adequate reception is intermittent. Viewers in these two areas are automatically entitled to access satellite television. By contrast, viewers in Category C reception areas must make out an entitlement to satellite reception on a case by case basis. If they are able to do so, the industry body that administers the scheme will issue them with a reception certificate which permits them to gain access to a satellite service. An additional category of reception area – Category D reception area – applies only to the Western Australia TV3 licence area. These are areas which receive 349

350 351 352

The main standard definition services (ABC1 and SBS One) are provided by satellite on an individual State and Territory basis; the five multi-channel services are provided by satellite to five areas on a time zoned basis: Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Television) Bill 2010 (Cth), Outline. The satellite services of the national and commercial broadcasters are delivered from the same satellite platform and are received using the same reception equipment. BSA, Sch 2 cl 7A. BSA, s 130AC; Sch 2 cl 7A makes compliance with these standards a licence condition. See BSA, Pt 9C. Such schemes were initially developed by the ACMA but pursuant to s 130ZC they have been replaced with schemes developed by FreeTV Australia Ltd as the industry body representing commercial television broadcasters. The scheme must be directed towards the policy objectives listed in ss 130ZB and 130ZBB. Section 38C licensees are required to ensure that any conditional access system that relates to any services provided under their licence complies with the scheme: BSA, Sch 2 cl 7A(1)(c).

[14.560] 857

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or are expected to be able to receive, reception of terrestrial digital television services.

Residents in Category D areas who cannot receive terrestrial digital services as expected, can apply for access to the satellite service. The ACMA must declare a particular area within a licence area to be a declared service-deficient area if it is satisfied that the number of terrestrial digital commercial television broadcasting services provided in an area is less than the number of commercial television broadcasting services available under the satellite service. 353 The conditional access system must enable residents in a declared service-deficient area to access the satellite services licensed for their area. Services provided by s 38C licensees [14.570] Section 41CA outlines the services that the holders of satellite licences are authorised to provide in their respective licence areas. Basically, they are commercial television broadcasting services that broadly correspond to: • the services being provided by a commercial television broadcasting licensee in a “related terrestrial licence area” (which are the remote licence areas listed in s 38C(1) as being the licence areas of the eligible joint venturers); or • the services provided in a metropolitan licence area. 354 The intent is to authorise s 38C licensees to provide viewers in signal deficient areas with access to an equivalent range of digital television services to those received by viewers in a related terrestrial licence area or a metropolitan area. While the s 38C satellite services do not need to be identical to those received in related terrestrial licence areas or metropolitan areas, the program content must be “the same or substantially the same”. 355 A program that provides coverage of one anti-siphoning event is regarded as the same as a program that provides coverage of another anti-siphoning event, thereby allowing for coverage of an event that is significant to viewers in a particular licence area without a breach of the section. 356 Whereas s 41CA outlines the services that s 38C licensees are authorised to provide, Div 2 of Pt 3 of Sch 2 obliges s 38C licensees to provide certain services. These obligations are imposed as licence conditions. Clause 7B imposes conditions that relate to the provision of primary commercial television broadcasting services. It effectively requires s 38C licensees to provide at least three distinct primary commercial television broadcasting services. A commercial television broadcasting service is regarded as distinct from another such service if 353 354

355

356

BSA, s 130ZH. For this purpose, a metropolitan licence area means a terrestrial licence area in which is situated the GPO of the capital city of New South Wales, Victoria, Queensland, South Australia or Western Australia but does not include the licence area of a commercial television broadcasting licence allocated under s 38C. In determining whether this is the case, the following program content is disregarded: advertising, sponsorship and promotional material; community information or promotional material; weather bulletins; news programs; programs that, if broadcast in any jurisdiction of the licence area could result in the licensee committing an offence, becoming liable to a civil penalty, breaching a court order or direction of a court or being in contempt of court; and programs broadcast in circumstances specified in the regulations. Jolly, Broadcasting Legislation Amendment (Digital Television) Bill 2010 (Cth) (Bills Digest No 145, Parliamentary Library, Australian Parliament, 2010), p 22.

858 [14.570]

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the program content of the services is not the same or substantially the same. 357 If there are three distinct primary television services provided by remote commercial television broadcasting services in remote licence areas related to the s 38C licence area, the s 38C licensee must provide a corresponding service that has program content that is the same, or substantially the same, as each of those related terrestrial services. 358 If there are only two distinct primary television services provided by commercial television licensees in the related terrestrial licence areas, the s 38C licensee must provide a third service that is the same, or substantially the same, as a primary service available in a metropolitan licence area to ensure a total of at least three primary services. In a similar vein, if there is only one distinct primary television service being provided by a commercial television licensee in a related terrestrial licence area, the s 38C licensee must provide a commercial television broadcasting service whose program content is the same or substantially the same as the program content of that related rimary commercial television service and must make up the difference by sourcing two commercial television services from metropolitan licensees. 359 The Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Television) Bill 2010 (Cth) explains that: (t)he intention is to give priority to the remote broadcasters in the corresponding terrestrial licence area who are intended to be stakeholders in the satellite television service that delivers services to audiences in remote areas and areas that rely solely on direct-to-home satellite reception. It will also be beneficial to remote broadcasters because the licence condition will encourage the making of affiliation or program supply agreements between the satellite broadcaster and the remote terrestrial broadcaster. 360

As regards the provision of non-primary commercial television broadcasting services, a s 38C licensee is subject to a condition that, at the commencement of the satellite service, it must provide HDTV and SDTV multi-channelled commercial television broadcasting services that are the same or substantially the same as all HDTV or SDTV services then provided by the related terrestrial licensees. 361 Where a metropolitan licensee provides HDTV or SDTV services that are distinct from the HDTV or SDTV services provided by the related terrestrial licensees, the s 38C licensee must also provide those services. 362 The latter requirement does not apply to a HDTV or SDTV multi-channelled service that a commercial television broadcasting licensee for a metropolitan licence area commences to provide after the end of the simulcast period, because at this point, the restrictions imposed by the BSA on the number of multi-channelled services provided by a terrestrial commercial television broadcasting 357 358 359 360 361 362

The test used to determine whether program content is the same or substantially the same is contained in BSA, Sch 2 cl 7J. Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Television) Bill 2010 (Cth), Item 72. Exemptions to these requirements exist where a related terrestrial broadcasting licensee ceases to provide a primary service: BSA, Sch 2 cl 7B(5), (6). Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Television) Bill 2010 (Cth), Item 72. BSA, Sch 2 cl 7C. Where a HDTV service provided by a related terrestrial licensee is substantially the same as a HDTV service provided by a metropolitan licensee, the s 38C licensee need only provide a service that is the same or substantially the same as the former.

[14.570] 859

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licence in their terrestrial licence area will have ceased. The s 38C may launch a new channel that is the same or substantially the same, but is not required to do so, as it may not have the requisite transponder space. 363 There are two exemptions to this requirement. The first is where a terrestrial licensee commences to provide a new HDTV or SDTV multi-channel service after the start date for a s 38C licence, and the s 38C licensee would ordinarily be required to provide the service by virtue of cll 7B and 7C. In this case, the ACMA may exempt the s 38C licensee from this requirement where it considers that it is not technically feasible for it to comply with it. 364 Second, to avoid unnecessary duplication, the Minister, in consultation with the ACMA, is empowered to exempt a s 38C licensee for a period of up to two years from having to provide a particular HDTV or SDTV multi-channel that is the same as another service the licensee is already required to provide. 365 The ACMA is required to cancel a s 38C licence if a licensee fails to provide any of the services required by cll 7B and 7C 366 and to issue a replacement s 38C licence. 367 To ensure that s 38C licensees are in a position to comply with these service obligations, licence conditions are imposed on commercial television licensees in the related terrestrial licence areas of the licence allocated under s 38C, and on metropolitan commercial television licensees, which oblige them to supply programs from their digital services to the satellite commercial television licensees upon request. Basically, if a metropolitan licensee broadcasts a program on one of its HDTV or SDTV multi-channelled commercial television broadcasting services and, before the program is broadcast, a s 38C licensee requests the metropolitan licensee to provide it with the programs broadcast on its service, the metropolitan licensee must provide the program to the s 38C licensee for broadcast simultaneously with the broadcast of that program on its metropolitan service or as soon as practicable thereafter. 368 The same obligation is imposed on licensees in related terrestrial licence areas in respect of programs broadcast in that related licence area. 369 363 364

365 366

Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Television) Bill 2010 (Cth), Item 72. BSA, Sch 2 cl 7E. For example, the provision of the new service may not be immediately possible for reasons such as satellite transponder capacity constraints or other technical issues relating to the satellite service’s distribution: Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Television) Bill 2010 (Cth), Item 72. BSA, Sch 2 cl 7F. BSA, s 38C(15). The licence will not be cancelled if the failure was due to technical or unforeseen circumstances beyond the licensee’s control.

367 368

BSA, s 38C(17) – (20). BSA, s 43AB.

369

BSA, s 43AC. Amendments were made to the Copyright Act 1968 (Cth) to determine the licence fees payable for the provision of these re-broadcasts of programs by the s 38C licensees if the broadcasters are unable to reach their own agreement. In the event that the provision of these programs would amount to an acquisition of property otherwise than on just terms, the licensee, but not the Commonwealth, is rendered liable to pay a reasonable amount of compensation: BSA, ss 43AD, 98D(2). This ensures that the acquisition of property meets constitutional requirements: Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Television) Bill 2010 (Cth), Item 41.

860 [14.570]

Chapter 14 – Regulation of the Media

Regional commercial television broadcasting licensees are obliged to provide s 38C licensees with local news programs. 370 This requirement is discussed in [14.1180].

Commercial radio broadcasting services [14.580] The licence allocation process for commercial radio broadcasters varies according to whether or not the service is to be provided using the broadcasting services bands. An additional licence regime also exists for commercial radio. 371

Commercial radio broadcasting services that use the broadcasting services bands [14.590] Licences for services to be provided using the broadcasting services bands must be allocated according to a price based system determined by the ACMA in accordance with s 36. 372 As is the case with commercial television broadcasting services, once a licence to provide the service has been allocated, the holder is automatically entitled to a transmitter licence for that service. 373 When s 36 was first enacted, all commercial radio broadcasting licences were authorised to provide a single service and all services were transmitted in analog mode. The introduction of digital radio has made it necessary to spell out what services a commercial radio broadcasting services bands licence permits the licensee to provide and whether they must be provided in analog or digital mode. Sections 36A and 41D combine to do this by reference to the time at which the licence was allocated. Commercial radio broadcasting licences that were in force immediately before 29 May 2007 (the date ss 36A and 41D commenced), or which were allocated after 29 May 2007 but before the digital radio start-up day for that licence area, are taken to have been allocated as licences to provide an analog commercial radio broadcasting service in the licence area and authorise the licensee to continue to provide that service between that date and the digital radio start-up day for the licence area. Once the digital start-up day arrives for the licence area, this condition ceases to apply and these commercial radio broadcasting services become authorised to provide one or more digital commercial radio broadcasting services in addition to their analog service. This allows “incumbent licensees to provide services in digital mode from the digital radio start-up day for the licence area, using their existing BSA licences, ie they will not need to obtain a separate digital licence.” 374 There is currently a moratorium on the allocation of commercial radio broadcasting licences to provide digital commercial radio broadcasting services in a licence area. This has been described in [14.500]. 370 371

BSA, s 43AA. See also: BSA, Sch 2 cl 7D. There are currently 273 commercial radio licences on issue. See http://www.acma.gov.au/~/media/ Licence%20Issue%20and%20Allocation/Information/pdf/Commercial%20Radio%20Broadcasting%20Licences %20LIC022.pdf.

372

As is the case with television, the Minister may give specific directions to the ACMA regarding a determination, such as to include specified reserve prices for licences, which may be different for licences in different licence areas: s 36(2), (3).

373 374

See above n 335. Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Radio) Bill 2007 (Cth), Item 38.

[14.590] 861

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Commercial radio broadcasting licences allocated on or after the digital radio start-up day must be allocated as either a licence to provide an analog commercial radio broadcasting service or as a licence to provide one or more digital commercial radio broadcasting services, in which case, it is subject to a condition that the licensee may only provide an analog or digital service, as the case may be. 375

Commercial radio broadcasting services that do not use the broadcasting services bands [14.600] A person who wishes to provide a commercial radio broadcasting service that does not utilise the broadcasting services bands can simply apply to the ACMA under s 40 for the grant of a licence at any time. Such licences are allocated on the basis of one licence per service. A commercial radio broadcasting service that does not utilise the broadcasting services bands only authorises the provision of the service. Therefore, persons who wish to provide such a service must secure access to other delivery technologies. Unlike the position in relation to commercial television broadcasting services, there is no need for the ACMA to refer licence applications to the Minister and the Minister has no power to veto applications.

Additional licence regime for under-served markets [14.610] Special provision is made in the BSA for the allocation of an additional commercial radio broadcasting licence to an existing commercial radio licensee in markets where there is only one commercial radio service. 376 The existing licensee must request that it be allocated the licence and spectrum must be available in the broadcasting services bands. If so, the ACMA must allocate the licence for a cost recovery fee. The purpose is to give audiences in solus markets a greater diversity of services in a short time frame. As is the case with additional commercial television licences, it is a condition of both the parent licence and the additional licence that the licensee will continue to provide services under both licences for at least two years after the allocation of the additional licence. During that period, any attempt to transfer either the parent licence or the additional licence is of no effect unless both licences are transferred to the same person at the same time. The ACMA has allocated 61 commercial radio licences under this regime. 377

Community broadcasting services 378 [14.620] As is the case with commercial broadcasting services, the procedure for allocating community broadcasting licences varies according to whether the service is to be delivered via the broadcasting services bands. 375 376

BSA, s 36A(2). This is in recognition of the fact that, unlike commercial television, where analog transmission has been completely phased out, digital radio will complement analog radio, not replace it. BSA, s 39.

377

This information was taken from registers maintained by the ACMA and published on its website: http://www.acma.gov.au/~/media/Licence%20Issue%20and%20Allocation/Information/pdf/Commercial%20 Radio%20Broadcasting%20Licences%20Allocated%20Under%20Section%2039%20of%20the%20Act%20 Solus%20Markets.pdf.

378

There are currently 81 community television broadcasting licences on issue and 359 community radio broadcasting licences.

862 [14.600]

Chapter 14 – Regulation of the Media

Community broadcasting services that use the broadcasting services bands [14.630] Community broadcasting licences that use the broadcasting services bands are allocated to the most meritorious applicant, making them the only type of broadcasting service licence subject to a qualitative selection process. When the ACMA is going to allocate such a licence, it must designate an area as the licence area and invite applications from companies that are formed in Australia or an external Territory and that represent a community interest. 379 “Community interest” is not defined in the Act. The Minister is empowered to direct the ACMA to give priority to a particular community interest or interests, whether generally or in a particular licence area, in allocating community broadcasting services bands licences. 380 Section 84(2) lays down a number of factors to which the ACMA must have regard in deciding whether to allocate a community broadcasting services bands licence to an applicant. 381 They include: the extent to which the proposed service would meet the existing and perceived future needs of the community within the proposed licence area, the nature and diversity of the interests of that community, the nature and diversity of other broadcasting services (including national broadcasting services) available within that licence area, and the capacity of the applicant to provide the proposed service. 382 In an attempt to encourage community broadcasting licensees to cater for a broad range of interests, the ACMA is also directed to have regard to the undesirability of one person being in a position to exercise control of more than one community broadcasting services bands licence in the same licence area. Finally, the ACMA must have regard to the undesirability of the Commonwealth, a State, a Territory or a political party being in a position to exercise control of a community broadcasting licence. 383 A successful applicant for such a licence is entitled to be allocated a transmitter licence to operate the service. 384 Owing to the fact that community broadcasting licences are granted on the basis of community need, not on the basis of prices bid, the ACMA is not obliged to allocate a community broadcasting licence to any applicant. 385 It would be open to the ACMA to refuse to allocate a community broadcasting licence if no applicant meets the suitability requirements, or, in the case of a broadcasting services bands licence, if no applicant satisfies the criteria set out above. It is unclear whether the ACMA has a residual discretion to refuse to allocate a licence where these criteria are satisfied and the applicant is not unsuitable. 386 379 380

BSA, s 80. A company includes an incorporated association: s 79. BSA, s 84(1).

381

For an insight into how these factors are applied see: Community Television Sydney Ltd v Australian Broadcasting Authority (2004) 136 FCR 316; Wyong-Gosford Progressive Community Radio Inc v Australian Communications and Media Authority and Gosford Christian Broadcasters Ltd [2006] FCA 1691.

382

The capacity to provide the service relates to matters such as resources, personnel and management capabilities.

383

These two “ownership and control” factors are discussed at greater length in [15.360]. Radiocommunications Act 1992 (Cth), s 102. BSA, s 85.

384 385 386

Mallam, Dawson and Moriarty, Media and Internet Law and Practice (Thomson Reuters, subscription service), [18.4330].

[14.630] 863

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As was the case with commercial broadcasting services, the BSA had to be amended to cater for the changes wrought by the introduction of digital radio broadcasting, as the arrangements for licensing community radio broadcasting services made no mention of transmission mode. 387 As explained earlier, a decision was made to permit wide-coverage community radio broadcasters (called designated community radio broadcasting licences) to broadcast in digital mode in the initial phase of digital radio. 388 A designated community radio broadcasting licence in force immediately before 29 May 2007 is taken to have been allocated as a licence to provide an analog community radio broadcasting service and is subject to the condition that the licensee may only provide an analog service under the licence. 389 Likewise, a designated community radio broadcasting licence that is allocated after 29 May 2007 but before the digital radio start-up day for the licence area must be allocated as a licence to provide an analog community radio broadcasting service. 390 However, these restrictions cease to apply at the start of the digital radio start-up day for the licence area. After this day, the licence is taken to authorise the licensee to provide one or more digital community radio broadcasting services in addition to the analog community radio broadcasting service. 391 A designated community radio broadcasting licence allocated on or after the digital radio start-up day for the licence area must be allocated either as a licence to provide an analog community radio broadcasting service or as a licence to provide digital community radio broadcasting services and, in each case, the licence is subject to the condition that the licensee may only provide that service. Where a designated community radio broadcasting licence authorises the licensee to provide one or more digital community radio broadcasting services, the licence is subject to the condition that the licensee must not provide such a service under the licence unless it is transmitted using a multiplex transmitter and the operation of the multiplex transmitter is authorised by a DRMTL. 392

Community broadcasting services that do not use the broadcasting services bands [14.640] Community broadcasting licences that do not use the broadcasting services bands can be allocated over the counter at any time. They are granted on the basis of one licence per service. A person who wants to provide such a service need only apply to the ACMA and pay a cost recovery application fee. 393 However, the ACMA is not obliged to issue the licence. 394 Unlike community services which use the broadcasting services bands, there is no

387 388

The arrangements are contained in BSA, ss 84A, 85A. See [14.440].

389 390

BSA, s 85A(1). BSA, s 85A(2).

391 392 393

BSA, s 85A(3). BSA, s 87B. BSA, s 82. It is up to the applicant to secure the delivery technology.

394

BSA, s 85.

864 [14.640]

Chapter 14 – Regulation of the Media

express stipulation that these licences can be allocated only to companies, 395 nor are they subject to Ministerial directions concerning the priority of community interests.

Temporary community broadcasting licences [14.650] A person who wishes to provide a temporary community broadcasting service may apply to the ACMA for a licence at any time. 396 A temporary community broadcasting licence can be allocated by the ACMA if spectrum has been made available on a temporary basis in accordance with s 34. 397 In deciding whether to allocate a licence the ACMA may only have regard to the two ownership and control considerations in s 84(2), since at this stage it is not evaluating the relative merits of applicants. 398 A successful applicant for a temporary licence is entitled to be allocated a transmitter licence under the Radiocommunications Act 1992 (Cth). 399

Subscription television broadcasting services [14.660] Licences to provide subscription television broadcasting services are allocated to a person at any time upon application in writing, subject to a favourable report by the ACCC. 400 The licences are allocated on the basis of one licence per service. 401 A service is regarded by the ACMA as a single stream of programming. Holders of these licences must separately organise the delivery of their services; 402 they are primarily delivered by satellite or cable. There are no geographical limitations on the provision of these services. A service licence is therefore a national licence, valid throughout Australia, as long as the programming on that service is the same in all areas of reception. 403

Subscription radio broadcasting services and narrowcasting services [14.670] The BSA does not establish an individual licensing regime for subscription radio broadcasting services, subscription radio narrowcasting services, subscription television narrowcasting services, open radio narrowcasting services and open television narrowcasting 395 396

But see [14.690]. BSA, s 92B.

397 398

BSA, s 92F. BSA, s 92E.

399

Radiocommunications Act 1992 (Cth), s 101A. The transmitter licence must be applied for under s 99 and is subject to the conditions contained in s 108A. BSA, s 96(1). The role of the ACCC is explained in [15.370].

400 401 402

BSA, s 96(2). This would involve obtaining a transmitter licence under s 106 of the Radiocommunications Act 1992 if the service was to use the radiofrequency spectrum. Subscription television broadcasters are prohibited from using the part of the radiofrequency spectrum that is designated under s 31(1A) of the Radiocommunications Act 1992 as being partly for the purpose of digital radio broadcasting services and restricted datacasting services to provide subscription television broadcasting services: BSA, Sch 2 cl 10(1)(j).

403

The coverage area is not required to be nationwide. Whether the service is provided on a nationwide basis is a business decision for the provider: Convergence Review, Discussion Paper, Spectrum Allocation and Management (2011), Appendix B.

[14.670] 865

Australian Media Law

services. Rather, the Act empowers the ACMA to determine a class licence for the provision of these services. 404 A class licence gives an operator a standing authority to provide a service, provided the operator has access to delivery capacity and abides by the conditions relevant to the particular service. It is not necessary to apply for a licence under the Act, or, with the exception of open narrowcasting services, to notify the ACMA before starting a service. 405 A class licence determined by the ACMA can be disallowed by Parliament. 406 A class licence for each of these services was determined on 1 October 1992. Persons who wish to provide an open narrowcasting service using the broadcasting services bands, which is shown as available in a licence area plan prepared by the ACMA, must apply for a transmitter licence under s 106 of the Radiocommunications Act 1992 (Cth). Such licences are issued pursuant to a price-based allocation system. 407

Restrictions on the allocation of licences [14.680] The BSA imposes two restrictions on who can hold a commercial, community or subscription television broadcasting licence. There are no restrictions on who can provide a service under a class licence.

Incorporation [14.690] A commercial broadcasting licence and a subscription television broadcasting licence can only be allocated to a company that is registered as a company under Pt 2A.2 of the Corporations Act 2001 (Cth) and has a share capital. 408 Applications for community broadcasting licences that use the broadcasting services bands and temporary community licences can be made only by companies that are formed in Australia or an external Territory and that represent a community interest. 409 The BSA does not stipulate that community broadcasting licences which do not use the broadcasting services bands must be allocated only to companies. The absence of an express requirement to this effect is probably a legislative drafting oversight. Taken literally, it means that natural persons who hold community broadcasting licences are not subject to the suitability requirements, since the test for suitability is only imposed on companies. 410 Although this interpretation is open as a matter of construction, it does not seem to be the intended meaning of the Act. It 404 405

BSA, s 117. Persons providing high power open narrowcasting services and networked low power open narrowcasting services are required to provide information about their service to the ACMA: Broadcasting Services (Additional Conditions – Open Narrowcasting Radio Services) Notice (2002).

406 407

BSA, s 121. The Radiocommunications (Allocation of Transmitter Licences – High Powered Open Narrowcasting Licences) Determination 2014 contains details of the price based allocation system to be applied in allocating transmitter licences for high powered open narrowcasting services in spectrum that the Minister has designated as being primarily for broadcasting purposes.

408 409

BSA, ss 37(1)(a), 95(1)(a). BSA, ss 80(1), 92C(1). The company is not required to have a share capital. “Company” is defined to include an incorporated association: s 79.

410

BSA, s 83.

866 [14.680]

Chapter 14 – Regulation of the Media

would be more sensible to interpret the suitability provision as containing an implicit requirement that all applicants for community broadcasting licences must be companies. An applicant for a community broadcasting service that provides television programs (“CTV licences”) is required to be a company limited by guarantee. 411 The purpose is to ensure that CTV licensees are subject to the stringent governance and accountability requirements imposed by the Corporations Act 2001 (Cth).

Suitability [14.700] A commercial, community, temporary community or subscription television broadcasting licence cannot be allocated to an applicant if the ACMA decides that the applicant is not suitable. 412 It is also a condition of these licences that the licensee must remain suitable. 413 A company is regarded as a suitable licensee or a suitable applicant for a licence unless the ACMA has decided that it is not suitable. 414 The ACMA is under no obligation to consider suitability before allocating a licence, 415 so presumably it will only do so where it has reason to believe that a prospective licensee may not meet the requirements. The ACMA may decide that a company is not suitable to hold a commercial, community, temporary community or subscription television broadcasting licence only if it is satisfied that allowing the company to provide or continue to provide services under that licence would lead to a significant risk of an offence against the Act or the regulations being committed or a breach of a civil penalty provision or a licence condition occurring. 416 In determining whether such a risk exists, the ACMA can only have regard to the following matters: the business record of the company, the record of the company in situations requiring trust and candour, 417 the business record of persons holding key positions in the company and the record of each such person in situations requiring trust and candour, whether the company or such a person has been convicted of an offence against the Act or the regulations and whether a civil penalty order has been made against the company or such a person. 418

Licence conditions [14.710] Licence conditions can be found in the body of the BSA and in Sch 2. They can also be imposed by the ACMA.

411

BSA, s 81(1)(a).

412 413

BSA, ss 37(1)(b), 81(1)(b), 92C(2), 95(1)(b). These requirements apply to all types of commercial licences: ss 38A(11), 38B(24), 38C(5), (10), (24), s 39(11). BSA, Sch 2 cl 7(2)(b), cl 8(2)(b), cl 9(2)(a), cl 10(2)(a).

414

BSA, ss 41(1), 83(1), 92D(1), 98(1).

415

BSA, ss 37(2), 81(2), 92C(2), 95(2).

416 417

BSA, ss 41(2), 83(2), 92D(2), 98(2). Convictions for offences such as embezzlement or fraud are relevant to business record or candour.

418

BSA, ss 41(3), 83(3), 92D(3), 98(3). These provisions are subject to spent convictions legislation.

[14.710] 867

Australian Media Law

Special licence conditions imposed on all broadcasting services by Sch 2 of the BSA [14.720] Part 2 of Sch 2 contains a list of “special conditions” that apply to all domestic broadcasting services licensed under the BSA. One condition prohibits the broadcast of advertisements relating to therapeutic goods unless the text of the advertisement has been approved under the Therapeutic Goods Act 1989 (Cth). 419 The other conditions relate to the broadcast of political and electoral matter and are discussed in Chapter 4.

Specific licence conditions imposed on each category of broadcasting service by Sch 2 of the BSA [14.730] Schedule 2 of the BSA imposes a number of licence conditions on each category of broadcasting service. In keeping with the philosophy of the Act, commercial broadcasting services are subject to the most onerous conditions, as they exercise the greatest degree of influence over the shaping of community views. By contrast, services provided under a class licence are subject to minimal conditions. Breach of certain licence conditions constitutes an offence against the Act and also renders the licensee liable to a civil penalty. 420 Conditions that apply to all (or most) service categories are listed first, followed by conditions that are peculiar to particular services. Conditions described elsewhere in Chapters 14 and 15 will be cross-referenced.

Conditions common to all broadcasting services [14.740] The following conditions are imposed on all categories of broadcasting service except where otherwise indicated: • Licensee will not broadcast a tobacco advertisement in contravention of the Tobacco Advertising Prohibition Act 1992 (Cth); 421 • Licensee will comply with applicable program standards; 422 • Licensee will comply with s 130V(1), which deals with industry standards. (Part 9B of the BSA empowers the ACMA to develop industry standards which deal with matters such as the labelling of domestic reception equipment, electronic program guides, the numbering of digital services, application program interfaces, conditional access systems and the updating of software used in domestic reception equipment. 423 The ACMA’s power is a reserve power, meaning that it can be exercised only if the industry has failed to register an industry code in relation to industry standards or a registered industry code has failed. If an industry standard is determined, it is a condition of the licence that it be complied with); 419

It is unclear whether this condition applies to community broadcasting services: cf BSA, Sch 2 Pt 2 cl 6 with BSA, Sch 2 Pt 5 cl 9(1)(i).

420 421

BSA, ss 139, 140A. See TCN Channel Nine Pty Ltd v Australian Broadcasting Authority [2002] FCA 896 and Channel Seven Adelaide Pty Ltd v Australian Communications and Media Authority [2014] FCAFC 32.

422 423

Program standards are discussed in [14.940]. BSA, s 130K.

868 [14.720]

Chapter 14 – Regulation of the Media

• Licensee will comply with any applicable technical standards for digital transmission made under s 130A, 130AA or 130AC (as the case may be); 424 • Licensee will not use the broadcasting service in the commission of an offence against another Commonwealth Act or a State or Territory law; A unanimous High Court recently held that the ACMA is not precluded from making a determination that a licensee has breached this licence condition and from taking any enforcement action arising out of the breach unless and until a court exercising criminal jurisdiction finds the commission of the relevant offence proven. 425 This is because, in making such a determination, the ACMA is not judging and punishing criminal guilt. The Court held that to hold that the words “the commission of an offence” in this licence condition require that the licensee (or other person) must have been convicted of an offence (or that a court exercising criminal jurisdiction has found the offence proven) as a preliminary to taking enforcement action would significantly confine the ACMA’s enforcement powers. 426 The Court also rejected an alternative argument – that in so far as the ACMA was empowered to determine that a licensee has used its broadcasting service in the commission of a relevant offence 427 and to take consequential enforcement action, these empowering provisions were an invalid attempt to confer the judicial power of the Commonwealth on the Authority – holding that in making a determination, the ACMA is not exercising judicial power. • Licensee will make its broadcasting facilities available to persons authorised by the Minister if notified by the Minister that an emergency has arisen that makes it important in the public interest that control be given to such persons (all service categories except class licences); • Licensee will broadcast items of national interest without charge, if the Minister so requires by means of written notice (commercial and community broadcasting services only); 428

424

425

426 427 428

Section 130A empowers the ACMA to determine technical standards that relate to the transmission in digital mode of television broadcasting services and datacasting services (except restricted datacasting services) that are provided using the broadcasting services bands. Section 130AA empowers the ACMA to determine technical standards that relate to the transmission of digital radio broadcasting services and restricted datacasting services. National broadcasters must also comply with these standards: ss 130A(7), 130AA(3). Section 130AC empowers the ACMA to determine technical standards for the transmission of satellite television services. Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7. A similar conclusion was reached at first instance (Today FM (Sydney) Pty Ltd v Australian Communications and Media Authority [2013] FCA 1157 per Edmonds J), but the Full Federal Court had held that the determination of whether or not person had committed a criminal offence was one that fell to be determined by a court exercising criminal jurisdiction, not a body exercising executive power (Today FM (Sydney) Pty Ltd v Australian Communications and Media Authority [2014] FCAFC 22). Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7 at [45]. The empowering provisions were identified as ss 10 and 12 of the Australian Communications and Media Authority Act 2005 (Cth) and ss 5, 170 and 178 and cl 8(1)(g) of the BSA. A similar requirement is imposed on the ABC (Australian Broadcasting Corporation Act 1983 (Cth), s 78) and the SBS (Special Broadcasting Service Act 1991 (Cth), s 12).

[14.740] 869

Australian Media Law

• Licensee will commence to provide at least one broadcasting service within one year of being allocated the licence or within such longer period as the ACMA notifies in writing (commercial 429 and community broadcasting services only); • All services are subject to conditions which pertain to the use of that part of the radiofrequency spectrum that is designated under s 31(1A) of the Radiocommunications Act 1992 as being partly for the purpose of digital radio broadcasting services and restricted datacasting services. Commercial television licensees, community television licensees, subscription television licensees and class licensees are not permitted to use that part of the spectrum to provide their respective services. Commercial and community radio licensees are not permitted to use it to provide a commercial or community radio broadcasting service under their respective licences unless the service is a digital commercial or community radio broadcasting service; • Licensees will remain suitable (all service categories except class licences, which are not subject to suitability requirements); 430 • Commercial television, commercial radio and community broadcasting licensees will not provide services under the licence outside the licence area except where: – this occurs accidentally or as a necessary result of the provision of those services within the licence area; – the licensee satisfies the ACMA that the provision of those services outside the licence area occurs in exceptional circumstances and the ACMA’s permission has been sought and obtained; or – the licensee satisfies ACMA that there is a person located in a different commercial television, commercial radio or community broadcasting licence area (as the case may be) who is not receiving adequate reception of a commercial television, commercial radio or community broadcasting service(s) provided by the licensee(s) who is licensed to serve that area and the first mentioned licensee is providing services outside the licence area only to the extent necessary to provide adequate reception of its services to that person and ACMA has given permission. • If a provision of Pt 9D, which deals with captioning of television programs for the deaf and hearing impaired, applies to a commercial television licensee, a subscription television licensee or a subscription television narrowcasting licensee, the licensee will comply with those rules and standards. 431

429 430

Separate start dates were specified for commercial television broadcasting licences allocated under s 38C. The suitability requirements are discussed in [14.700].

431

National broadcasters are also subject to captioning requirements but they are not imposed as licence conditions. Part 9D was enacted in 2012. It increases captioning targets for the primary commercial television broadcasting services and primary national television broadcasting services and introduces captioning targets for subscription television broadcasting and subscription television narrowcasting services.

870 [14.740]

Chapter 14 – Regulation of the Media

Additional conditions imposed on commercial television and radio broadcasting licensees [17.750] Commercial television and radio broadcasting licences are also subject to the following conditions: • If the licence is a broadcasting services bands licence, the licensee will keep in force a licence under the Radiocommunications Act 1992 that authorises operation by the licensee of the radiocommunications devices used to provide broadcasting services (this condition only applies to commercial radio licences that authorise the licensee to provide an analog service); • Licensee will comply with s 205B, which contains requirements relating to the keeping of financial accounts; • Licensee will provide a service or services that, when considered together with other broadcasting services available in the licence area (including other services operated by the licensee), contributes to the provision of an adequate and comprehensive range of broadcasting services in that licence area (this condition does not apply to commercial television licences allocated under s 38C or 40); 432

Additional conditions imposed on commercial television broadcasting licensees [14.760] Commercial television broadcasting licences are also subject to the following conditions: • the licensee will comply with the Australian content transmission quota; • If the licensee holds a transmitter licence under s 102 of the Radiocommunications Act 1992 that authorises the operation of a transmitter, the licensee will not operate that transmitter to transmit the following services in digital mode: a commercial broadcasting service that provides radio programs, a subscription radio or television broadcasting service, a subscription radio or television narrowcasting service or an open narrowcasting radio or television service; • Except where the licence is allocated under s 38C or 40, the licensee will broadcast religious matter during such periods as the ACMA determines and, if the ACMA so directs, will do so without charge. Conditions that pertain to the following matters are dealt with elsewhere in Chapters 14 and 15: ownership and control; programs classified RC, X 18+ and R 18+; the anti-hoarding rule; and conditions imposed on commercial television satellite licences.

Additional conditions imposed on commercial radio broadcasting licensees [14.770] Conditions that pertain to ownership and control are described in Chapter 15 and conditions pertaining to local news and information are described in [14.1190]-[14.1220]. 432

This condition does not mean that each individual service must provide a comprehensive range of programming. Rather, it need only contribute to the provision of an adequate and comprehensive range of services in the context of other services already being provided.

[14.770] 871

Australian Media Law

Additional conditions imposed on community broadcasting licensees [14.780] Community broadcasting licences are also subject to the following conditions: • Licensee will continue to represent the community interest that it represented at the time when the licence was allocated or was last renewed; • Licensee will encourage members of the community that it serves to participate in the operations of the licensee in providing the service(s) and the selection and provision of programs under the licence; • Licensee will provide the service(s) for community purposes; • Licensee will not operate the service(s) for profit or as part of a profit-making enterprise. 433 Conditions imposed on community broadcasting licences that pertain to advertising and sponsorship announcements, programs classified RC, X 18+ and R 18+ and the transfer of licences are dealt with in [14.90], [14.990] and [14.830] respectively. In order to ensure that services provided under CTV licences do not operate in the same way as commercial television broadcasting services, CTV licences are subject to three conditions pertaining to the sale of access to airtime. 434 The sale of access to airtime refers to an arrangement whereby a CTV licensee receives consideration in return for providing a third party with the right to select or provide programs to be broadcast on the licensee’s service. The three conditions are intended to balance the revenue-raising requirements of the CTV sector with the community and “not-for-profit” nature of the sector. 435 First, a CTV licensee must not sell access to more than two hours of air-time per day to any person who operates a business for profit or as part of a profit-making enterprise, unless the person is a company whose sole or dominant purpose is to assist a person in education or learning. 436 Secondly, a CTV licensee must not sell access to a combined total of more than eight hours of air-time per day to people who operate businesses for profit or as part of profit-making enterprises. Finally, a CTV licensee must not sell access to more than eight hours of air-time in any day to a particular person. The ACMA can impose further conditions on CTV licences relating to the sale of access to airtime. It is expected that this power would be exercised if, over time, CTV licensees were becoming too commercial in character as a result of the sale of airtime. 437 The ACMA is also empowered to impose conditions relating to community access to airtime, the governance of CTV licences (including provisions that must be present in a licensee’s constitution) and the provision of annual reports to the ACMA (thus enabling the ACMA to monitor compliance with the licence conditions). 438 433 434

See [14.90]. BSA, s 87A.

435 436

Explanatory Memorandum to the Broadcasting Legislation Amendment Bill (No 2) 2002 (Cth). This qualification enables the sale of more than two hours of air time per day to commercial subsidiaries of universities and other educational institutions: Explanatory Memorandum to the Broadcasting Legislation Amendment Bill (No 2) 2002 (Cth). Explanatory Memorandum to the Broadcasting Legislation Amendment Bill (No 2) 2002 (Cth). BSA, s 87A(7). Further conditions have been imposed on CTV licensees. See Australian Broadcasting Authority, Broadcasting Services (Additional Conditions – CTV Licence) Determination (2005).

437 438

872 [14.780]

Chapter 14 – Regulation of the Media

In addition to the conditions imposed by Sch 2, temporary community broadcasting services are subject to timing conditions determined by the ACMA which govern the times and days during which the licensee may provide services during the temporary licence period. 439 The purpose of the timing conditions is to enable the ACMA to share available spectrum between aspirant community broadcasters in an equitable manner.

Additional conditions imposed on subscription television broadcasting licensees [14.790] Subscription television broadcasting licences are also subject to the following conditions: • That subscription fees will continue to be the predominant source of revenue for the service; 440 • That the licensee will take reasonable steps to ensure that it does not provide a subscription television broadcasting service, a subscription television narrowcasting service or an open narrowcasting television service in a regional area if three or more consecutive “program items” 441 transmitted on that service are identical to any three or more consecutive program items transmitted by a metropolitan commercial television broadcasting licensee during prime viewing hours unless the ACMA gives permission; 442 • A variety of conditions that pertain to technology, Australian industry involvement and consumer rental equipment. 443 Conditions that relate to programs classified RC, X 18+ and R 18+, Australian drama and the anti-siphoning rules are dealt with in [14.990], [14.1150] and [14.1230] respectively.

Additional conditions imposed on class licences [14.800] The following conditions also apply to class licences: • The provision by a person of a subscription broadcasting or subscription narrowcasting service under a class licence is subject to the condition that subscription fees will continue to be the predominant source of revenue for the service; • A person who provides an open narrowcasting television service or a subscription television narrowcasting service will comply with s 121E(2), which requires the ACMA’s permission to provide certain television services in regional areas. 444 439 440

BSA, ss 92G, 92H(b). This condition affects the amount of advertising that can be carried on these services.

441

A “program item” is a television program, but not advertising or sponsorship matter, news programs that are not regularly scheduled news programs and programs that cover the Olympic or Commonwealth Games or a Paralympic Games: s 121B. BSA, s 121E(2).

442 443

Some of these conditions apply only to subscription television broadcasting licensees whose services are delivered by satellite (BSA, ss 100(3)(a), (b)), or only to non-satellite subscription television broadcasting licensees (BSA, s 100(6)). Others apply to all subscription television broadcasting licensees: BSA, ss 100(4), 100(4A), 100(5).

444

This condition is also imposed on subscription television broadcasting licensees and is described in [14.790].

[14.800] 873

Australian Media Law

Conditions that pertain to the broadcast of programs classified RC, X 18+ and R 18+ are dealt with in [14.990].

Conditions imposed by the Australian Communications and Media Authority [14.810] The ACMA may vary or revoke a licence condition or impose additional conditions on any of the services which require an individual licence, provided the conditions are relevant to the broadcasting services to which the licence relates. 445 Examples given in the Act of the types of conditions that might be imposed include a condition which requires a licensee to comply with an applicable code of practice, a condition which is designed to ensure that a breach of a licence condition does not recur, and, in the case of a subscription television broadcasting service, a condition designed to ensure compliance with the film classification system provided for by the Classification (Publications, Films and Computer Games) Act 1995 (Cth). 446 The power to impose a condition requiring compliance with a code of practice ensures that the ACMA can compel an individual operator in breach of a code to observe the code without having to convert it into a program standard. 447 The ACMA and its predecessor have often used this power to impose additional conditions on particular licensees. Two notable instances were when the ABA imposed conditions on commercial radio broadcaster 2UE following the Cash for Comment inquiry 448 and when the ABA imposed an additional licence condition on certain regional commercial television broadcasting licensees requiring them to broadcast minimum amounts of local content within their local broadcast areas. 449 The ACMA may include in a class licence such conditions as it considers should be imposed, provided they are relevant to the broadcasting services to which the licences relate. 450 In so doing, the ACMA must have regard to the objects and regulatory policy of the Act, and to the same matters to which it must have regard when determining or clarifying service category criteria or giving opinions as to service category. 451 Examples of conditions that might be imposed by the ACMA are conditions requiring the licensee to comply with an applicable code of practice, conditions designed to ensure that a breach of a licence condition does not recur and conditions designed to ensure compliance with the film classification system provided for by the Classification (Publications, Films and Computer Games) Act 1995 (Cth). 452 It is difficult to justify the inclusion of the first example, as a condition requiring a licensee to comply with a code would form part of the class licence and have general 445 446

BSA, ss 43(1), 44(1), 87(1), 88(1), 92J(1), (3), 99(2), 100(1). For a discussion of these powers see: Australian Broadcasting Authority v Star Broadcasting Network Pty Ltd [2004] FCAFC 168. BSA, ss 44(2), 88(2), 92J(2), 100(2).

447

The circumstances in which a code can be turned into a program standard are discussed in [14.940].

448

See [14.1160].

449

See [14.1180].

450 451

BSA, ss 118(1), 119(1). BSA, s 118(1).

452

BSA, s 119(2).

874 [14.810]

Chapter 14 – Regulation of the Media

application to all services provided under the licence. 453 Such a condition would be no different, in effect, to a program standard, apart from the consequences of a breach. 454 The ACMA is entitled to specify different conditions for different categories of broadcasting services, and different conditions for services providing radio programs than for services providing television programs. 455 The ACMA may vary or revoke conditions specified in a class licence. 456 If the ACMA proposes to vary or revoke a licence condition or impose a new condition, or, in the case of a temporary community broadcasting licence, vary the licence period, it must notify the licensee of its intention and provide it with a reasonable opportunity to make representations in relation to the proposed action. 457 Proposed changes must also be published in the Gazette. 458 The ACMA is subject to restrictions in the variations, revocations or additional conditions that it can impose. The ACMA cannot vary or revoke a condition contained in Sch 2. 459 Further, the ACMA cannot take action that is inconsistent with any determinations and clarifications made in relation to broadcasting service categories, any of the conditions in Sch 2, and, in relation to a community broadcasting licence that is a CTV licence, any conditions imposed on the licence under s 87A. 460 Any variation, revocation or imposition of a new condition must be published in the Gazette. 461 Parliament can disallow an instrument which varies a class licence. 462

Duration and renewal of broadcasting service licences [14.820] Unless suspended or cancelled, commercial and community broadcasting licences remain in force for five years, except s 38C licences, which remain in force for 10 years. 463 The licensee of a commercial broadcasting licence can apply for a renewal within 20 weeks but not more than a year before the licence is due to expire. 464 The licensee of a community broadcasting licence can apply for a renewal within a year, but no later than within 26 weeks (or such time notified by the ACMA), before the licence is due to expire. 465 If the ACMA 453 454 455

Mallam, Dawson and Moriarty, Media and Internet Law and Practice (Thomson Reuters, subscription service), [18.6150]. Mallam, Dawson and Moriarty, Media and Internet Law and Practice (Thomson Reuters, subscription service), [18.6150].

456

BSA, s 118(2). For example, the ABA has imposed additional conditions on open narrowcasting radio services: Australian Broadcasting Authority, Broadcasting Services (Additional Conditions – Open Narrowcasting Radio Services) Notice (2002). BSA, s 120.

457 458

BSA, ss 43(2), 87(2), 92J(4), 99(4). This requirement does not apply to class licences. BSA, ss 43(2), 87(2), 99(4).

459 460 461

BSA, ss 43(3), 87(3), 92J(5), 99(5). BSA, ss 43(5), 87(5), 92J(7), 99(7), 120(2). BSA, ss 43(4), 87(4), 92J(6), 99(6), 120(1).

462 463

BSA, s 121. BSA, ss 45, 89. If the service uses the broadcasting services bands, the accompanying transmitter licence to which the licensee is automatically entitled remains in force for a corresponding period.

464 465

BSA, s 46. BSA, s 90. The ACMA can consider late applications in exceptional circumstances: s 90(1C) – (1F).

[14.820] 875

Australian Media Law

receives an application for renewal of a commercial or community broadcasting licence it must – or, in the case of a community broadcasting licence, may – renew the licence for a period of five years unless it decides that the applicant is unsuitable, in which case it must refuse to renew it. 466 The ACMA may also refuse to renew a community broadcasting licence that uses the broadcasting services bands if the applicant no longer meets the criteria in s 84(2). 467 The ACMA is not required to conduct an investigation or hearing into whether a licence should be renewed; thus it is not essential that these criteria be reconsidered. 468 Temporary community broadcasting licences remain in force for a period not exceeding 12 months. 469 In determining the licence period, the ACMA must have regard to any other applications for temporary community broadcasting licences in the licence area of the proposed licence, any other temporary community broadcasting licences already in force in that licence area and such other matters as it thinks fit. 470 The BSA does not make provision for the duration of subscription television broadcasting services. Accordingly, these licences remain in force for an unlimited time, subject to cancellation or suspension. Duration and renewal are not relevant to services provided under a class licence.

Transfer and surrender of broadcasting service licences [14.830] A commercial broadcasting licensee may transfer the licence to another person. 471 The prior approval of the ACMA is not required, although if there is some doubt as to whether the proposed transferee would comply with the ownership and control rules, it would be prudent to obtain an opinion from the ACMA prior to effecting a transfer. 472 A community broadcasting licensee that wishes to transfer the licence can apply to the ACMA for approval. 473 The ACMA cannot approve the transfer if the proposed transferee does not meet the incorporation requirements or is unsuitable. 474 The ACMA must be satisfied that the proposed transferee represents the same community interest that was represented when the licence was allocated or last renewed, and must have regard to the principle that, except in special circumstances, the transfer should not be approved if consideration is to be provided to the transferor. This is because the transfer provisions are designed to cater for changes in corporate arrangements by licensees representing an unchanged community interest, rather 466 467

BSA, ss 47, 91. See [14.630]. See Bankstown City Radio Co-operative Ltd v Australian Communications and Media Authority [2007] FCA 2053.

468 469

BSA, ss 47(3), 91(3). BSA, ss 92G(1)(c), 92K.

470 471

BSA, s 92G(2). BSA, s 48. Special restrictions on transfer were imposed on licences issued under the additional licence regimes and on commercial television satellite licences but these restrictions are now spent. Mallam, Dawson and Moriarty, Media and Internet Law and Practice (Thomson Reuters, subscription service), [18.3070].

472 473 474

BSA, s 91A. However, the ACMA is not obliged to consider the suitability requirements before approving the transfer: s 91A(5).

876 [14.830]

Chapter 14 – Regulation of the Media

than to facilitate trading in community broadcasting licences. 475 If a transfer is approved it must take place within 90 days and each community broadcasting licence that has been transferred is subject to a licence condition that the transferee must notify the ACMA of the transfer within seven days. 476 A subscription television broadcasting licensee may transfer the licence to another person. 477 A licensee of a service provided under an individual licence may surrender the licence to the ACMA. 478 Transfer and surrender are irrelevant to services provided under a class licence.

Remedies for breach of the licensing provisions [14.840] Part 10 of the BSA contains an enforcement regime for breaches of the licensing provisions. The general philosophy of the regime is to provide the ACMA with a range of remedies that can be exercised commensurately with the seriousness of the breach. For more serious offences the penalties include criminal prosecution and cancellation or suspension of a licence. More moderate penalties and enforcement powers 479 include notices to remedy breaches, the imposition of civil penalties 480 and, in some cases, the issue of infringement notices. The selection of the appropriate enforcement mechanism, if any, to apply to breach of a licence provision is largely at the discretion of the ACMA. 481

475 476 477 478 479

480

481

Explanatory Memorandum to the Broadcasting Services Amendment (Subscription Television Drama and Community Broadcasting Licences) Bill 2006, p 14. BSA, s 91A(8); Sch 2 cl 9(2B). BSA, s 113. BSA, ss 49, 92, 92L, 114. A number of these mid-range enforcement powers were conferred on the ACMA by the Communications Legislation Amendment (Enforcement Powers) Act 2006 (Cth). These amendments were designed to address difficulties that had been experienced by the ACMA and its predecessor in dealing with breaches of the BSA. Many of these difficulties were identified in a report by Professor Ramsay commissioned by the ACMA: Reform of the Broadcasting Regulator’s Enforcement Powers (2005). Some of the deficiencies of the regulator’s enforcement powers were highlighted in the ABA’s attempts to prosecute radio station 2UE for multiple breaches of the Broadcasting Services (Commercial Radio Current Affairs Disclosure) Standard 2000 (see [14.1160]) and in its response to the Ten Network’s breach of the commercial television industry’s code of practice in relation to the Big Brother program. The background to the amendments is explained in more detail in the Explanatory Memorandum to the Communications Legislation Amendment (Enforcement Powers) Bill 2006 (Cth). In 2007, the ACMA successfully applied to the Federal Court for civil penalties to be imposed on Radio 2UE Sydney Pty Ltd under s 205F for 13 breaches of the BSA for failing to comply with a condition of its commercial radio broadcasting licence: Australian Communications and Media Authority v Radio Station 2UE Sydney Pty Ltd [2009] FCA 574. 2UE was fined $360,000. The parties had agreed on a lesser penalty but the Court regarded it as manifestly inappropriate. Rares J held that unlike civil penalties available under other statutes, under the BSA civil penalties had elements of deterrence, punishment and retribution. This is because a licence under the BSA confers on the licensee an economic privilege to broadcast for profit over public spectrum and John Laws and his station had violated the public’s trust and damaged the integrity of broadcasting. This was the first case in which civil penalties had been imposed under the BSA. Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7 at [11].

[14.840] 877

Australian Media Law

Broadcasting services requiring individual licences The provision of unlicensed services Prosecution [14.850] It is an offence for a person to provide a commercial television or radio broadcasting service, a subscription television broadcasting service, or a community television or radio broadcasting services bands service without a licence. 482 The provider of the service is the person who legally controls the physical transmission of the programs. 483 The penalties range from 20,000 penalty units for the provision of an unlicensed commercial television broadcasting service down to 50 penalty units for the provision of an unlicensed community radio broadcasting services bands service. The hefty penalties that apply in relation to the more influential services are designed to act as disincentives to service providers in less regulated categories to push the boundaries for commercial gain. 484 Offences may be prosecuted at any time. 485 If the maximum penalty for an offence exceeds 500 penalty units for a natural person, the prosecution must be brought in the Federal Court. 486 However, this does not apply to an offence for which the maximum penalty includes a term of imprisonment. Although it is envisaged that prosecutions will be instigated by the ACMA and referred to the Commonwealth Director of Public Prosecutions (DPP), there is nothing in the Act which prevents a person from bringing a private prosecution for a breach of the licensing provisions. Prosecution has proven to be a problematic option for the ACMA, as the criminal standard of proof applies and the prosecutor must prove intent to breach. For example, between 1993 and 2003, the ABA detected 17 breaches by narrowcasters operating outside the terms of their licence, but was not satisfied that it could provide a sufficient brief of evidence to the DPP to make out a case. Accordingly, none of the breaches were prosecuted. 487 Civil penalty orders [14.860] To enable the ACMA to circumvent the difficulties posed by referring breaches to the DPP for prosecution, the BSA now provides that the provision of unlicensed services that 482

BSA, ss 131 – 135. These offences are continuing offences: ss 136, 213. It is not an offence to provide a community broadcasting service without a licence if it does not use the broadcasting services bands.

483

Mallam, Dawson and Moriarty, Media and Internet Law and Practice (Thomson Reuters, subscription service), [18.3470]. Functions performed prior to transmission, such as program acquisition and the sale of advertising, may be legally performed by persons other than the licensee. Explanatory Memorandum to the Broadcasting Services Bill 1992 (Cth), Pt 10, Div 1. BSA, s 209(1).

484 485 486 487

BSA, s 209(2). In 2004 the ABA also referred breaches of the Broadcasting Services (Commercial Radio Current Affairs Disclosure) Standard 2000 by radio station 2UE and presenter John Laws to the Commonwealth DPP for prosecution, but was advised that on the evidence available there would be no reasonable prospect of convicting 2UE in relation to breaches and that, accordingly, the matter would not be approved for prosecution: Australian Broadcasting Authority, 2UE Prosecution Not to Proceed (News Release 66/2004). The problem was that it would have to be proven beyond reasonable doubt that 2UE had engaged in the conduct with the requisite criminal intention.

878 [14.850]

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constitutes an offence under the BSA are also “civil penalty provisions”. 488 This means that the ACMA can apply to the Federal Court for an order that the person pay to the Commonwealth a pecuniary penalty (a “civil penalty order”). 489 The Federal Court can impose a civil penalty if it is satisfied on the balance of probabilities that a person has contravened a civil penalty provision. The Federal Court has a degree of latitude as to the amount of the pecuniary penalty it can order, although it cannot exceed the maximum pecuniary penalty that could have been imposed had the person been convicted of a corresponding offence. The Federal Court is required to have regard to the nature and extent of the contravention and the circumstances in which it took place, the nature and extent of any loss or damage suffered as a result of the contravention and whether the person has previously been found by a court to have engaged in similar conduct. A pecuniary penalty is a civil debt payable to the Commonwealth which may be enforced as if it were an order made in civil proceedings against the person to recover a debt due. 490 A person cannot be pursued for a civil penalty provision if the person has already been prosecuted and convicted of an offence constituted by the same conduct. 491 Moreover, proceedings against a person for contravention of a civil penalty provision must be stayed if criminal proceedings are commenced, or have already commenced, against that person in respect of the same conduct. 492 By contrast, criminal proceedings may be started against a person for conduct which is substantially the same as conduct constituting a civil penalty contravention regardless of whether a civil penalty order has been made against the person. 493 The ACMA has developed guidelines in consultation with industry as to how it will assess cases to determine whether to pursue criminal or civil penalties. 494 Remedial notices [14.870] If the ACMA is satisfied that a person is providing a commercial broadcasting service, a community broadcasting service or a subscription television broadcasting service without a licence, the ACMA may issue a notice directing that person to take action to ensure that the person does not breach the civil penalty provisions pertaining to unlicensed services,

488 489

BSA, ss 136A – 136E. BSA, s 205F. Proceedings for such an order must be commenced within six years after the contravention: s 205J.

490 491

BSA, s 205F(8). BSA, s 205L.

492

BSA, s 205M. Proceedings may be resumed if the person is not convicted of the offence; otherwise, they are dismissed. BSA, s 205N. Australian Communications and Media Authority, Guidelines Relating to ACMA’s Enforcement Powers Under the Broadcasting Services Act 1992 (2011). These guidelines cover a range of matters pertaining to the ACMA’s enforcement powers, not just civil penalties. The ACMA has a legislative obligation to develop such guidelines: BSA, s 215.

493 494

[14.870] 879

Australian Media Law

or is unlikely to breach those provisions in the future. 495 It is an offence to engage in conduct that contravenes a requirement in the notice. 496 Breach of a remedial notice is also a civil penalty provision. 497 Injunctions [14.880] Part 14C of the BSA enables the ACMA to apply to the Federal Court for an injunction to restrain a contravention of the civil penalty provisions which pertain to the provision of unlicensed services. The Federal Court is also empowered to grant an interim injunction while it considers whether to issue a permanent one. An injunction may be sought in addition to, or in lieu of, a prosecution or a proceeding for a civil penalty.

Breach of licence conditions [14.890] It is an offence for a commercial broadcasting licensee, a community broadcasting licensee or a subscription television broadcasting licensee to engage in conduct which breaches the conditions imposed by cll 7(1), 8(1), 9(1) and 10(1) of Sch 2 of the Act. 498 It is also an offence for a subscription television broadcasting licensee to breach a condition pertaining to eligible drama expenditure. 499 A breach of any of the aforementioned conditions is also a civil penalty provision. 500 Breach of other conditions imposed by Sch 2 is not an offence, nor is it an offence to breach a condition imposed by the ACMA. If the ACMA is satisfied that a commercial broadcasting licensee, a community broadcasting licensee or a subscription television broadcasting licensee has breached or is breaching a licence condition, the ACMA may issue a written notice directing the licensee to take action to ensure that it does not, or is unlikely to, breach that condition in the future. 501 In particular, the ACMA may direct the licensee to implement effective administrative systems for monitoring compliance with a licence condition, or direct the licensee to implement a system that is designed to give its employees, agents and contractors a reasonable knowledge and understanding of a licence condition which affects them. 502 A person who is in a position to exercise control of a commercial television or radio licence and who is causing the licensee to breach a licence condition may be served with a notice from the ACMA

495 496

BSA, s 137. It is up to the ACMA whether it specifies a time frame during which action must be taken. BSA, s 138.

497 498

BSA, s 138A. BSA, s 139(1) – (5). Breach by a commercial television or radio broadcasting licensee of the condition pertaining to the keeping of accounts is expressed to be a strict liability offence and is subject to a lesser penalty than breaches of the other conditions listed in cll 7(1) and 8(1) (BSA, s 139(1A), (1B), (3A), (3B)) and is also declared to be a designated infringement notice provision, which means that the licensee can be issued with an infringement notice as an alternative to court proceedings: BSA, s 139(1C), (3C).

499 500

BSA, s 139(2)(c). BSA, s 140A.

501 502

BSA, s 141(1). BSA, s 141(2).

880 [14.880]

Chapter 14 – Regulation of the Media

directing the person to take action to ensure that this does not happen again. 503 It is an offence to breach a remedial notice. 504 Non-compliance with a notice can also incur a civil penalty. 505

Suspension and cancellation of licences [14.900] If a commercial broadcasting licensee, a community broadcasting licensee or a subscription television broadcasting licensee breaches a condition of the licence or fails to comply with a remedial notice, the ACMA may either suspend the licence for up to three months or cancel the licence. 506 Before suspending or cancelling a licence, the ACMA must give the licensee written notice of its intention and a reasonable opportunity to make representations in relation to the proposed action. 507 The ABA suspended the licence of a commercial radio service for the first time in June 2003. 508 However, licence suspension or cancellation would, in most cases, be too extreme and would detrimentally affect consumers of the service as much as it would affect the broadcaster.

Broadcasting services provided under a class licence Breach of licence conditions [14.910] It is an offence for a person who provides a subscription radio broadcasting service, a subscription narrowcasting service or an open narrowcasting service to engage in conduct which breaches any of the licence conditions imposed on those services by cl 11(1) of Sch 2. 509 Such a breach is also a civil penalty provision. 510 If the ACMA is satisfied that a person who provides services under a class licence has breached or is breaching a condition of the licence, the ACMA may issue that person with a written notice directing the person to take action to ensure that the person does not breach

503 504

BSA, s 141(3). BSA, s 142.

505 506

BSA, s 142A. BSA, s 143(1). If a subscription television broadcasting licensee provides a subscription television drama service and the licence is suspended or cancelled because of a breach of a condition pertaining to eligible drama expenditure, the ACMA can suspend or cancel any other subscription television broadcasting licences held by the licensee or a related body corporate in order to ensure that the same service is not transmitted by the licensee or the related body corporate during the period of suspension or after the cancellation: s 143(1A), (1B). For the position in relation to the cancellation of commercial television broadcasting licences provided with the use of a satellite, see s 38C(15).

507

BSA, s 143(2).

508

Commercial radio service 6GS Wagin was suspended for 14 days for breaching a licence condition in relation to the provision of audited annual returns to the ABA: Australian Broadcasting Authority, News Release 39/2003. BSA, s 139(6). It is not an offence to breach other conditions imposed by Sch 2, or to breach a condition imposed by the ACMA. BSA, s 140A(6), (7).

509 510

[14.910] 881

Australian Media Law

that condition, or is unlikely to do so in the future. 511 It is an offence to breach a remedial notice. 512 Non-compliance with a notice can also incur a civil penalty. 513

Cessation of service provided under a class licence [14.920] The ACMA has no power to direct a class licensee to cease providing a service. However, if the ACMA is satisfied that a person is providing such a service otherwise than in accordance with the relevant class licence, it may apply to the Federal Court for an order that the person cease to provide the service. 514

Programming and content regulation Sources of content regulation [14.930] The BSA contains three important sources of content regulation: program standards, codes of practice and legislative programming requirements that are imposed as licence conditions. 515 Certain program standards must be determined by the ACMA for commercial television broadcasting licences. Codes of practice must be developed by the broadcasters themselves and registered with the ACMA. Utilising codes of practice shifts some of the responsibility for ascertaining and meeting community needs with respect to program content from the regulator to the broadcaster, resulting in a co-regulatory regime. 516 Owing to the fact that a “program” is defined to include advertising and sponsorship matter, program standards and codes can relate to broadcast advertising. 517 The Act also imposes a number of program related rules in the form of licence conditions. Some of these have already been identified. It is beyond the scope of this chapter to discuss every program standard, code of practice and legislative programming requirement that applies to each category of broadcasting service. Accordingly, the chapter will outline the scheme of the BSA in relation to programming and then focus attention on five of the most significant programming issues, namely: • RC, X 18+ and R 18+ programs; • Australian content requirements for commercial and subscription television; 511

512

BSA, s 141(4). As is the case with individually licensed broadcasters, the ACMA may direct the licensee to implement effective administrative systems for monitoring compliance with a licence condition or direct the licensee to implement a system designed to give its employees, agents and contractors a reasonable knowledge and understanding of a condition which affects them: BSA, s 141(5). BSA, s 142(4).

513 514

BSA, s 142A. BSA, s 144.

515

This section deals only with program requirements that are specifically imposed on the broadcasting media. It is not concerned with general laws, such as the law of contempt or defamation, which affect the content of what can be broadcast.

516

Mallam, Dawson and Moriarty, Media and Internet Law and Practice (Thomson Reuters, subscription service), [1.3530]. Although the BSA creates conjoint roles for industry groups and the ACMA in developing codes of practice, the pre-eminent role is given to the ACMA, subject to the role of the Parliament under BSA, s 128: Harbour Radio Pty Ltd v Australian Communications and Media Authority (2012) 202 FCR 525 at 552. BSA, s 6.

517

882 [14.920]

Chapter 14 – Regulation of the Media

• local content requirements in regional areas; • the “cash for comment” program standards imposed on commercial radio broadcasters; and • the anti-siphoning regime.

Program standards [14.940] The ACMA is required to determine program standards in three situations. Firstly, the ACMA must, by legislative instrument, determine standards that are to be observed by commercial television broadcasting licensees in relation to programs for children and the Australian content of programs. 518 These standards are not limited to the primary service of a commercial television broadcasting licensee. The ACMA must comply with Ministerial directions in relation to the exercise of its power to determine these standards. 519 Standards made by the ACMA under this provision do not apply to commercial television broadcasting licences allocated under s 40(1) after 1 January 2007 during the calendar year in which they were allocated and for the next four calendar years. 520 Secondly, the ACMA must determine a standard if there is convincing evidence that a registered code of practice is not operating to provide appropriate community safeguards for a matter to which it relates in a particular section of the broadcasting industry, and the ACMA is satisfied that it should determine a standard in relation to that matter. 521 Thirdly, if no code of practice has been registered for a matter in a particular section of the broadcasting industry and the ACMA is satisfied that it should determine a standard in relation to that matter, the ACMA must determine a standard in relation to that matter. 522 The ACMA has determined standards pursuant to its powers under this provision. The standards apply respectively to open narrowcasting television services and to subscription television narrowcasting services. 523 The object of these standards is to prevent the broadcasting of programs which advocate the doing of a terrorist act or which encourage people to join or finance listed terrorists. The ACMA has no power to make standards that apply to the national broadcasters, although the ABC is obliged to take account of any standards approved by the ACMA. 524 518 519

BSA, s 122(1), (2). The standards must not be inconsistent with the BSA or the regulations s 122(4). BSA, s 122(7), (8).

520 521

BSA, s 122(11). BSA, s 125(1). These are the only relevant jurisdictional facts created by s 125; the reference to “convincing evidence” does not involve a jurisdictional fact: Harbour Radio Pty Ltd v Australian Communications and Media Authority (2012) 202 FCR 525. Standards have been determined for the commercial radio industry pursuant to this provision. See [14.1160]. BSA, s 125(2).

522 523

524

Broadcasting Services (Anti-terrorism Requirements for Open Narrowcasting Television Services) Standard 2011; Broadcasting Services (Anti-terrorism Requirements for Subscription Television Narrowcasting Services) Standard 2011. Australian Broadcasting Corporation Act 1983 (Cth), s 6(2)(a)(ii). The SBS is under no such obligation.

[14.940] 883

Australian Media Law

Program standards may relate to the content or delivery of programs, thus ensuring that the ACMA can exercise authority over the time at which programs are broadcast. 525 Before determining, varying or revoking a program standard, the ACMA must seek public comment on the proposed action. 526 Any determinations, variations or revocations must be notified in the Gazette. 527 Apart from standards relating to children, the ACMA is not permitted to determine a program standard that requires programs to be approved by the ACMA before they are broadcast. 528

Codes of practice [14.950] Parliament intends that radio and television industry groups representing commercial broadcasting licensees, community broadcasting licensees 529 and providers of subscription broadcasting services, subscription narrowcasting services and open narrowcasting services develop codes of practice to govern the broadcasting operations of each of those sections of the industry. 530 To avoid doubt, it is declared that “broadcasting operations” encompass each commercial television and radio service provided by a commercial television or radio licensee and each community radio service provided by a designated community radio broadcaster. 531 Codes of practice must be developed in consultation with the ACMA and must take account of any relevant research conducted by the ACMA. The industry groups and the categories of broadcasters they each represent are: Free TV Australia (commercial television broadcasters); Commercial Radio Australia (commercial radio broadcasters); the Community Broadcasting Association of Australia (community broadcasters); the Australian Subscription Television and Radio Association (ASTRA) (subscription broadcasting television and radio services subscription narrowcasting television and radio services); and the Australian Narrowcast Radio Association (ANRA) (open narrowcasting radio services). The ABC and SBS are not required to register codes of practice with the ACMA, but any codes they develop must be notified to the ACMA, as the ACMA takes cognisance of these codes when dealing with complaints about their services. 532 The Act lays down 12 matters which may be addressed by codes of practice. 533 It is not mandatory that each of these matters be covered by a code, since some are only relevant to certain sectors of the broadcasting industry. The 12 matters are: 1.

preventing the broadcasting of programs that, in accordance with community standards, are not suitable to be broadcast by that section of the industry;

525 526

BSA, s 6 (definition of “program standard”). BSA, s 126.

527 528

BSA, s 127. BSA, s 129.

529 530

Separate codes are to be developed for community licensees whose services target remote Indigenous communities. BSA, s 123(1).

531 532 533

BSA, s 123(5) – (7). See [14.1450]. BSA, s 123(2).

884 [14.950]

Chapter 14 – Regulation of the Media

2.

methods of ensuring that protecting children from exposure to program material which may be harmful to them is a high priority;

3.

methods of classifying programs that reflect community standards;

4.

promoting accuracy and fairness in news and current affairs programs;

5.

preventing the broadcasting of programs that simulate news or events in a way that misleads or alarms the audience, or that depict the actual process of putting a person into a hypnotic state or which are designed to induce a hypnotic state in the audience, or that use or involve the processes or techniques that attempt to convey information to the audience by broadcasting messages below or near the threshold of normal awareness;

6.

in the case of codes of practice developed by commercial broadcasting licensees, broadcasting time devoted to advertising;

7.

in the case of codes of practice developed by commercial radio broadcasting licensees, the broadcasting of Australian music;

8.

methods of handling complaints from the public about program content or compliance with codes of practice and reporting to the ACMA on complaints so made;

9.

captioning of programs for the hearing impaired; 534

10.

in the case of codes of practice developed by community broadcasting licensees, the kinds of sponsorship announcements that may be broadcast by those licensees or the kinds of sponsorship announcements that particular kinds of programs may carry;

11.

in the case of codes of practice developed by subscription broadcasting licensees, dealings with customers of the licensees, including methods of billing, fault repair, privacy and credit management; and

12.

such other matters relating to program content as are of concern to the community.

In developing codes of practice relating to the first and third matters, community attitudes to the following matters must be taken into account: the portrayal in programs of physical and psychological violence, sexual conduct, nudity, the use of drugs (including alcohol and tobacco), and matter that is likely to incite or perpetuate hatred against or which vilifies any person or group on the basis of ethnicity, nationality, race, gender, sexual orientation, age, religion, or physical or mental disability; the use of offensive language; and such other matters relating to program content as are of concern to the community. 535 In developing codes of practice relating to the first three matters, industry groups representing commercial television and community television broadcasting licensees and providers of open narrowcasting television services must ensure that when classifying films, their codes apply the film classification system provided for by the Classification (Publications, Films and Computer Games) Act 1995 (Cth) and provide advice to consumers on the reasons 534

A code of practice that relates to the captioning of programs for the hearing impaired has no effect to the extent to which it is inconsistent with a standard determined under s 130ZZA(1): s 123(3E).

535

BSA, s 123(3).

[14.950] 885

Australian Media Law

for films receiving a particular classification. 536 They must also ensure that their codes provide for methods of modifying films having particular classifications so that they are suitable to be broadcast either at all or at particular times. 537 Furthermore, the codes must require that films classified “M” or “MA 15+” are only broadcast between certain hours. 538 The ACMA is required to maintain a register of codes of practice. 539 If a group representing a section of the broadcasting industry develops a code of practice for that section of the industry, the ACMA must register the code if it is satisfied that it provides appropriate community safeguards for the matters it covers, that it is endorsed by a majority of the providers of broadcasting services in that industry sector and that members of the public have been given an adequate opportunity to comment on it. 540 The Register is to be open for public inspection and may be maintained by electronic means. 541 Codes of practice have been registered with the ACMA for all categories of broadcasting services. 542 The ABC and SBS have notified codes of practice to the ACMA. The codes are regularly reviewed by the broadcasters. The ACMA is specifically empowered to review the commercial television code in order to determine whether it is appropriate in its application to satellite commercial television licensees and, if not, may request Free TV Australia to develop a replacement code. 543 The Full Federal Court has recently stated that a code should be construed consistently with the BSA and that courts should apply “at least the general principles of construction applicable to documents of a legislative character”. Nevertheless, courts should give “principal effect to its character as a document drafted by stakeholders and community representatives which is intended to reflect community attitudes and standards, as members of the Australian community might express them”. 544

536 537

BSA, s 123(3A)(a), (e), (3C)(a), (e). BSA, s 123(3A)(b), (3C)(b).

538

539

BSA, s 123(3A)(c), (d); (3C)(c), (d). Films classified “M” may be broadcast only between 8:30 pm and 5:00 am, or between noon and 3:00 pm on school days, and films classified “MA 15+” may be broadcast only between 9:00 pm and 5:00 am. BSA, s 124(1).

540 541

BSA, s 123(4). BSA, s 124(2), (3).

542

Commercial Television Industry Code of Practice 2010 (as amended); Commercial Radio Codes of Practice and Guidelines 2013; Community Television Broadcasting Codes of Practice 2011; Community Radio Broadcasting Codes of Practice 2008; Subscription Broadcast Television Codes of Practice 2013; Subscription Narrowcast Television Codes of Practice 2013; Subscription Narrowcast Radio Codes of Practice 2013; Open Narrowcasting Radio Code of Practice 2009; Open Narrowcast Television Codes of Practice 2009. BSA, s 123B.

543 544

Channel Seven Brisbane Pty Ltd v Australian Communications and Media Authority [2014] FCAFC 179 at [53].

886 [14.950]

Chapter 14 – Regulation of the Media

Parliament’s power in relation to program standards and codes of practice [14.960] The BSA confers power on the Federal Parliament to amend program standards and registered codes of practice. 545 The amendment will be effective if both Houses agree to it, although it is only necessary for one House to express its agreement by affirmative action. The effect of this provision is that Parliament can not only disallow standards and codes, it can actually rewrite them. 546 Courts regard this provision as underlining the fact that Parliament is the ultimate guardian of “community safeguards”. 547

Authorisation by the Australian Competition and Consumer Commission [14.970] The Competition and Consumer Act 2010 (Cth) states that in deciding whether a person has contravened Pt IV of that Act, anything specified in and specifically authorised by, inter alia, a Commonwealth Act must be disregarded. 548 The BSA provides that nothing in Pt 9, which deals with program standards and codes of practice, is to be taken as specifically authorising any act or thing for the purpose of the Competition and Consumer Act 2010 (Cth). 549 The effect of this provision is that codes of practice and standards are subject to Pt IV of the Competition and Consumer Act 2010. It follows that if a code of practice contravenes a provision of Pt IV it will be subject to civil remedies under that Act unless an authorisation is obtained.

Enforcement of program standards and codes of practice [14.980] Compliance with applicable program standards is a condition of each broadcasting service licence. Accordingly, a licensee who breaches a program standard is liable to incur the penalties that apply to a breach of licence condition. 550 Codes of practice are enforced in the first instance by the licensees themselves through the complaints handling mechanisms contained in their respective codes. If a complaint is not resolved by the licensee to the satisfaction of the complainant, the complainant can take the complaint to the ACMA. 551 If the ACMA finds the complaint proved, various options are available to it. It may: impose a condition on an individual licensee requiring it to comply with

545 546

548 549

BSA, s 128. Armstrong, Communications Law and Policy in Australia (1992-), [5100]. Harbour Radio Pty Ltd v Australian Communications and Media Authority (2012) 202 FCR 525 at 553. See also: Channel Seven Brisbane Pty Ltd v Australian Communications and Media Authority [2014] FCAFC 179 at [51]. Competition and Consumer Act 2010 (Cth), s 51(1)(a). BSA, s 130.

550 551

See [14.890], [14.910]. The ACMA’s powers in relation to complaints are discussed in [14.1430]-[14.1450].

547

[14.980] 887

Australian Media Law

the code of practice; 552 in the case of a class licensee, issue a written notice directing that person to take action directed towards ensuring that the person does not breach the code, or is unlikely to breach the code in the future; 553 accept an enforceable undertaking by a person that the person will take or refrain from taking specified action in order to comply with a registered code of practice; 554 or determine a standard. 555

RC, X 18+ and R 18+ programs [14.990] Commercial television licensees, community television licensees, subscription television broadcasting licensees, subscription television narrowcasting licensees and open narrowcasting television licensees are each subject to a condition that they will not broadcast a program that has been classified RC or X 18+ by the Classification Board. 556 Commercial and community television broadcasting licensees and open narrowcasting television licensees are also subject to a condition that they will not broadcast films classified as R 18+ unless the films have been modified so that they are suitable to be broadcast, either at all or at particular times. 557 Subscription television licensees must ensure that access to programs classified R 18+ is restricted by disabling devices acceptable to the ACMA. 558 In any event, licensee cannot broadcast a program classified R 18+ until the ACMA has completed extensive Australia-wide research on community standards of taste and decency in relation to classifications for pay television and on what levels of violence and depiction of sex should be allowed, and the ACMA has recommended, and Parliament has approved, the broadcast of such programs. 559

Australian content on commercial television broadcasting services [14.1000] The BSA imposes a transmission quota on Australian content on commercial television services. It also obliges the ACMA to determine program standards that relate to the 552

BSA, ss 44(2)(a), 88(2)(a), 92J(2)(a), 100(2)(a), 119(2)(a). If the licensee is a class licensee, the condition will have general application to all licensees providing a service under that licence. A licensee who breaches a condition requiring it to comply with a code of practice can be issued with a remedial notice but has not committed an offence.

553

BSA, s 141(6), (7). Failure to comply with a notice is both an offence and a civil penalty: BSA, ss 142(4); 142A. BSA, s 205W(1)(d) – (f).

554 555 556

BSA, s 125(1). BSA, Sch 2 cl 7(1)(g); cl 9(1)(g); cl 10(1)(f); cl 11(3)(a), (4). Classification is discussed in more detail in Chapter 9.

557 558 559

BSA, Sch 2 cl 7(1)(ga); cl 9(1)(ga); cl 11(3)(b). See also: BSA, ss 123(3A)(b); 123(3C)(b). BSA, Sch 2 cl 10(1)(g). In 1994, the ABA recommended that programs classified R 18+ be approved by Parliament for broadcast by subscription television broadcasters: Australian Broadcasting Authority, R Classified Programs on Pay TV (1994). Subsequently, the Senate Select Committee on Community Standards Relevant to the Supply of Services Utilising Electronic Technologies recommended that the prohibition on R 18+ rated programs on subscription television be maintained. Parliament has not yet approved the broadcast of R 18+ rated programs on subscription television.

888 [14.990]

Chapter 14 – Regulation of the Media

Australian content of programs on commercial television. These standards are not limited to the primary channel; the ACMA can determine that they apply to the entire range of commercial television services provided by a licensee. Commercial television broadcasters are currently subject to two Australian content standards: the Broadcasting Services (Australian Content) Standard 2005 and Television Program Standard 23. These program standards supplement the transmission quota. Before discussing the quota and these standards, it is necessary to consider the rationale for the imposition of Australian content requirements.

Rationale for Australian content requirements [14.1010] One of the objects of the BSA is to promote the role of broadcasting services in developing and reflecting a sense of Australian identity, character and cultural diversity. Owing to the fact that commercial television services are taken to exercise more influence over the attitudes and cultural life of the Australian community than any other type of broadcasting service, it is considered imperative that these broadcasters be required to promote Australian images and culture and contribute to a sense of national identity. Clause 4 of the Broadcasting Services (Australian Content) Standard 2005 confirms that it is the importance of commercial television in the promotion of Australian culture that is the foundation of the ACMA’s regulation of Australian content. Aside from its contribution to Australian culture, the regulation of Australian content has economic by-products, as it supports the Australian creative industry and provides opportunities for Australian creative talent. Australia’s small population base means that there is a huge economic incentive to purchase cheap foreign programs, rather than produce Australian programs. 560 These rationales for Australian content rules have been challenged on a number of grounds. It has been argued that the increasing globalisation of program production, distribution and financing means that the strength of Australia’s domestic cultural industries will depend on its participation in global markets. It has also been argued that the emergence of niche broadcasting services, digital television and online entertainment spaces have fragmented mass audiences and weakened the case for the overwhelming influence of commercial television and its role in creating a shared sense of identity, thus making it harder to justify Australian content rules based on degree of influence. 561 Conversely, some maintain that Australian content requirements should be retained but should be extended to platforms that are not currently subject to such rules. Some options as to how this might be done are canvassed in the Convergence Review Discussion Paper Australian and Local Content (2011). In its Final Report, the Convergence Review recommended (inter alia) that the quotas and minimum expenditure obligations that currently apply to free-to-air and subscription television 560 561

See Convergence Review, Discussion Paper, Australian and Local Content (2011), p 7. Some of these issues are canvassed in: A Feros, “Effect of International Agreements and Convergence of Technologies on Australian Television Content” (2000) 5(2) Media and Arts Law Review 87; S Fitzpatrick, “Protecting Australian Culture in the 21st Century: Television Content Regulation in a Globalising World” (2000) 5(4) Media and Arts Law Review 223; G Abbott, “Trends in Multicultural Australia: Implications for Australian Content” (Paper presented at the Australian Broadcasting Authority’s Conference on Radio, Television and the New Media, 2001); Bosland (2006) 11 Media and Arts Law Review 440. For a New Zealand perspective see: D Aukett, “Seeing More of New Zealand on Air: Local Content Television Broadcast Quotas in an Era of Globalisation” (2002) 9(3) Auckland University Law Review 672.

[14.1010] 889

Australian Media Law

broadcasters should be repealed and replaced with a uniform content scheme that applies to content service enterprises that meet defined service and scale thresholds. These content service enterprises should be required to invest a percentage of their total revenue from professional television-like content in the production of Australian drama, documentary or children’s content or, where this is not practicable, contribute to a new converged content production fund. Of course, any changes to Australian content rules would need to be consistent with Australia’s international obligations which pertain to content or audio-visual services. These recommendations have not been implemented.

The Transmission Quota [14.1020] Section 121G(1) of the BSA directly imposes on commercial television broadcasting licensees an obligation to ensure that for each calendar year, not less than 55% of the programs transmitted on their primary service during targeted viewing hours are Australian programs. 562 Section 121G(2) provides that the total number of hours of Australian programs that must be transmitted otherwise than on the primary commercial television broadcasting service during targeted viewing hours must be not less than 1,460 hours per calendar year. 563 These requirements are enforceable as licence conditions. 564 “Targeted viewing hours” are the hours between 6 am and midnight. However, if a television program consists of coverage of a sporting event and the program begins before midnight on a particular day and ends on the next day, that part of the program transmitted between midnight and 2 am is taken to have been transmitted during targeted viewing hours on the first day. This concession recognises the commitment and expenditure required of broadcasters in bringing to Australian viewers quality coverage of international sporting events from distant time zones. 565 Owing to the fact that both first run and repeat programs qualify towards the transmission quota, the quota does not guarantee the production of new Australian programs. Commercial television licences allocated under s 40(1) on or after 1 January 2007 are not subject to these transmission requirements for the calendar year in which the licence is

562

563

564 565

Prior to 2013 this requirement was contained in the Australian Content Standard made by the ACMA. It was elevated from a legislative instrument into a legislative requirement by the Broadcasting Legislation Amendment (Convergence Review and Other Measures) Act 2013) (Cth). The Explanatory Memorandum to this Bill states that this elevation will increase regulatory certainty and provide greater transparency for the broadcasting and Australian content production sectors. If a first release Australian drama program is transmitted by the licensee during targeted viewing hours in a calendar year otherwise than on the primary commercial television broadcasting service provided by the licensee, then for the purposes of the transmission quota in s 121G(2) an assumption is made that the duration of the program is twice as long as its actual duration: s 121G(3). This provides licensees with an incentive to broadcast new Australian drama otherwise than on their primary channels. BSA, cl 7(1)(aa). Australian Broadcasting Authority, Australian Content: Review of the Program Standard for Commercial Television, Final Report (1995).

890 [14.1020]

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allocated and for any of the next four calendar years. 566 This concession ensures that new services can emerge and become established in the market before having to comply with Australian content requirements. 567 The ACMA is empowered to define, by legislative instrument, what constitutes an “Australian program’” an “Australian drama program” and a “first release” program for the purposes of the transmission quota. 568 In the absence of such an instrument, the default position is that the definitions of these terms are those contained in the Broadcasting Services (Australian Content) Standard 2005 as in force on 1 January 2013. 569

The Broadcasting Services (Australian Content) Standard 2005 [14.1030] The Broadcasting Services (Australian Content) Standard 2005 imposes two requirements on commercial television broadcasting licensees. 570 The first is a series of quotas for minimum amounts of first release Australian drama programs, documentaries and children’s programs to be broadcast on commercial television. 571 These three programming genres are regarded as the most culturally valuable, yet they are the genres least likely to be produced in the absence of compulsory quotas. 572 Secondly, the Standard requires all preschool programs broadcast on commercial television to be Australian. Licensees must provide the ACMA with compliance reports. 573 If a standard imposes a quantitative requirement in relation to a particular kind of program transmitted by a commercial television broadcasting licensee (such as an Australian drama program or a C or P program) and the requirement does not substantially correspond to s 121G(1) or (2), the transmission of the program on any of the licensee’s channels counts for the purposes of meeting the genre requirement; 574 it does not matter whether the program is transmitted on the primary service or on a multi-channel. 575 However, the transmission quotas for Australian programs imposed 566 567 568 569

570

571

BSA, s 121G(13). Explanatory Memorandum to the Broadcasting Legislation Amendment (Convergence and Other Measures) Bill 2013 (Cth), Item 5. The Minister may give directions to the ACMA in relation to the exercise of this power: s 121G(14)-(15). Such directions could relate to either the timing or the content of the definitions. BSA, s 121G(6)-(12). The definitions of associated terms such as an “Australian official co-production”, a “New Zealand program” or an “Australian/New Zealand program” also take their meaning from the Broadcasting Services (Australian Content) Standard 2005 as in force on 1 January 2013 in the absence of a legislative instrument: s 121G(6). Clause 9 of the Standard also contains a transmission quota which sets an annual overall minimum level of Australian programming that must be broadcast on commercial television between 6.00 am and 12.00 midnight. However, this quota has been replaced with the legislative quota discussed in [14.1020]. Pro rata adjustments are made to these quotas for new licensees that commence broadcasting part way through a calendar year or a three year obligation period.

572

Convergence Review, Discussion Paper, Australian and Local Content (2011), pp 8-9.

573 574

Broadcasting Services (Australian Content) Standard 2005 (ACS), cl 21. BSA, s 122(10). In determining whether a requirement substantially corresponds to the transmission requirements under s 121G(1) or (2), any differences as to percentage or viewing hours are to be disregarded: s 122(12).

575

Concern has been expressed that this arrangement will result in commercial television broadcasters transmitting less high-quality Australian drama: “This is because they will be able to transmit drama programs

[14.1030] 891

Australian Media Law

by s 121G on the primary service and on the multi-channels respectively must be met regardless of the manner in which the genre quotas are met. Moreover, the ACMA is not permitted to determine a standard that would have the effect of quantitatively increasing the transmission quotas discussed in [14.1020]. 576 Commercial television licences allocated under s 40(1) on or after 1 January 2007 are not subject to these transmission requirements for the calendar year in which the licence is allocated and for any of the next four calendar years. Before discussing the requirements imposed by the Standard, it is necessary to grapple with what makes a program “Australian”.

Australian programs [14.1040] In theory, there are two possible methods that could be used to assess whether a program is “Australian”. The first is by reference to the content of the program, that is, to what the audience sees and hears. On this test, a program would be “Australian” if it contains Australian ideas or aspects of life in Australia, or deals with the art, work, leisure or sporting activities of Australians, or if its scenes appear to be set in Australia or if it focuses on social, economic or political issues concerning Australians. 577 An alternative means of assessing whether a program is “Australian” is by reference to the personnel involved in its creation. This is usually referred to as a “creative control” test, although it was dubbed a “provenance” test by Brennan J in Project Blue Sky Inc v Australian Broadcasting Authority. 578 While Brennan CJ held that there is neither historical nor textual foundation for the proposition that the term “Australian content of programs” as used in s 122 of the BSA can be used to classify programs by reference to their provenance, the majority of the High Court in the Project Blue Sky case regarded the phrase as a flexible expression which could encompass both programs that have an Australian “look and feel”, and programs whose participants, creators and producers are Australian. 579 In fact, a creative control test is adopted in the Standard. 580 Under the Standard, a program is an Australian program if it is produced under the creative control of Australians 581 and the program was made without financial assistance from the Australian Commercial Television Production Fund. 582 A program is “produced under the and especially children’s television programs on the multichannels, and, because the audience on the multi-channels, at least at present, is quite a bit lower than it is on what they call the primary channels, they will therefore pay less money to the producers for those programs.” Commonwealth, Parliamentary Debates, House of Representatives, 19 March 2013, 2605 (Malcolm Turnbull). 576 577 578 579

580 581 582

BSA, s 122(9) Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490 at 514. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490 at 514 per McHugh, Gummow, Kirby and Hayne JJ. For a critique of the decision see: M Leiboff, “Football, Meat Pies, Kangaroos and Holden Cars? The Arts and Cultural Implications of Project Blue Sky v Australian Broadcasting Authority” (1998) 3 Media and Arts Law Review 135. A separate and equivalent creative control test has been introduced in relation to New Zealand programs in order to comply with Australia’s treaty obligations with New Zealand: see [14.1100]. An “Australian” means a citizen or permanent resident of Australia: ACS, cl 6. ACS, cl 7(1). The Television Production Fund is administered by the Australian Film Commission and is a source of funding for high quality Australian drama productions.

892 [14.1040]

Chapter 14 – Regulation of the Media

creative control of Australians” if it satisfies the creative elements test laid down in the Standard. The creative elements test is an objective test that is designed to provide certainty to program makers and broadcasters, while affording some flexibility regarding the use of writers, directors and actors. To satisfy the test, all programs must have an Australian producer or producers (whether or not the program is produced in conjunction with a co-producer or an executive producer who is not Australian). Either the director(s) of the program or the writer(s) of the program must be Australian. 583 Furthermore, not less than 50% of the leading actors (including voice actors) or on-screen presenters appearing in the program must be Australians and, in the case of a drama program, at least 75% of the major supporting cast appearing in the program must be Australians. In the case of an animated program, at least three of the following five persons must be Australians: the production designer, the character designer, the supervising layout artist, the supervising storyboard artist and the key background artist. Finally, the program must be produced and post-produced in Australia, although it may be filmed anywhere in the world. 584 If an Australian program (other than a news, current affairs or sports program) is comprised of segments, only those segments that comply with the creative elements test are treated as Australian programs. Common examples are music video programs that include Australian music clips and children’s cartoon programs that are presented by an Australian host. A documentary that satisfies the creative elements test is not regarded as an Australian program if it is a re-versioning of one or more existing documentaries that are not Australian programs, Australian official co-productions, New Zealand programs or Australian/New Zealand programs. 585

First release quotas [14.1050] A program is a first release program when it is first broadcast in a licence area provided it has been acquired within two years (or, in the case of feature films, five years) of the completion of its production. 586 The timing requirements effectively exclude back catalogue material from being counted as first release material. Telemovies and feature films which have already been broadcast in the licence area on a subscription television broadcasting service are still regarded as first release programs in recognition of the fact that subscription television has altered the distribution order of Australian telemovies and feature films.

First release quotas for minimum amounts of Australian drama [14.1060] The Standard requires a minimum level of first release Australian drama to be shown in prime time. 587 Three types of Australian programs qualify as “Australian drama programs”: 583 584

“Writer” is defined in such a way that it is not satisfied by someone who adapts an existing screenplay or teleplay: ACS, cl 6. News, current affairs and sports programs that are filmed outside Australia and produced or post-produced outside Australia because it is impractical to do otherwise are taken to be produced and post-produced in Australia: ACS, cl 6(5).

585

ACS, cl 7(4).

586 587

ACS, cl 8. ACS, cll 10, 11.

[14.1060] 893

Australian Media Law

• a program which has a fully scripted screenplay in which the dramatic elements of character, theme and plot are introduced and developed to form a narrative structure; • a program which has a partially scripted screenplay in which the dramatic elements of character, theme and plot are introduced and developed to form a narrative structure and has actors delivering improvised dialogue that is based on a script outline developed by a writer; and • a program where actors deliver improvised dialogue that is based on a script outline developed by a writer in which the dramatic elements of character, theme and plot are introduced and developed to form a narrative structure. 588 Fully scripted sketch comedy programs, 589 animated drama and dramatised documentaries are regarded as drama programs. Excluded from the definition are programs or program segments that involve the incidental use of actors, and an Australian children’s drama. The first release Australian drama quota is implemented through a points scoring system. The drama scores for all first release Australian drama programs broadcast by a licensee between 5:00 pm and 11:00 pm 590 must total at least 250 points per annum, and at least 860 points in each succeeding period of three years. The drama score is calculated by multiplying the format factor for the program by its duration. The format factor is a number between 1 and 4 depending on whether the drama program is a serial or series, a feature film or a telemovie, whether the program has been acquired from an independent producer, and the licence fee paid for the program. 591 The advantage of the points system is that there is no set minimum number of hours of Australian drama programs which applies equally across all licensees. For example, a heavy commitment to telemovies and mini-series means less hours, but more expenditure per hour, while a commitment to serial drama means more hours but less expenditure per hour. The points system does not therefore force programming into particular formats. 592 A pro rata formula is used to work out drama scores where a licensee commences to provide a commercial television broadcasting service on or after 2 January in a year. 593

588

ACS, cl 6.

589

A sketch comedy program is defined in ACS, cl 6.

590

Some leeway is afforded to feature films, serials, series and mini-series, narrative comedy programs and programs of at least 60 minutes’ duration which do not end until after 11:00 pm. In certain circumstances parts of the program are taken to have been broadcast in prime time: ACS, cl 10(3), (4), (5), (6), (7). For amounts of licence fees see: ACS, cl 17; Australian Communications and Media Authority, Australian Drama Format Factor and Licence Fees (2013). Australian Broadcasting Authority, Australian Content: Review of the Program Standard for Commercial Television, Final Report (1995). ACS, cl 10(1A), (2A). The pro rata formula is set out in cl 6C.

591 592 593

894 [14.1060]

Chapter 14 – Regulation of the Media

First release quotas for minimum amounts of Australian documentary programs [14.1070] Commercial television broadcasters must broadcast at least 20 hours of new Australian documentaries each year between 6 am and midnight, each of at least 30 minutes’ duration. 594 A documentary is a program that is a creative treatment of actuality, other than a news or current affairs program, sports coverage, or a magazine, infotainment or light entertainment program. 595

Australian children’s drama programs [14.1080] Commercial television broadcasters must broadcast at least 25 hours of first release Australian children’s drama in the C band in any year, and at least 96 hours in each succeeding period of three years. 596 Provision is made for a broadcaster to be credited with additional time in certain circumstances, 597 and for the quota hours to be deferred where a licensee or program supplier has a binding agreement with an independent producer for the provision of first release Australian children’s drama and the independent producer fails to provide the programs in accordance with the agreement. 598 Commercial television broadcasters must also broadcast at least 8 hours of Australian children’s drama programs that are not first release programs in the C band each year. 599 This requirement encourages the repetition of quality Australian children’s drama, since children enjoy seeing their favourite programs more than once. 600

Australian children’s programs and Australian preschool programs [14.1090] Under Children’s Television Standard 8, at least 260 hours of C programs must be broadcast each year. The Australian Content Standard requires at least 50% of these programs to be first release Australian C programs. 601 Under Children’s Television Standard 8, at least 130 hours of preschool children’s programs must be broadcast each year. The Australian Content Standard requires all of these programs to be Australian. 602 594 595

596 597 598 599 600 601 602

ACS, cl 16. A pro rata formula applies to commercial television services that commence on or after 2 January in a given year. ACS, cl 6. For guidance as to the meaning of each phrase in the definition of “documentary” see: Australian Broadcasting Authority, Documentary Guidelines: Interpretation of “Documentary” for the Australian Content Standard (2004). ACS, cl 12. A pro rata formula applies to commercial television services that commence on or after 2 January in a given year. For example, an Australian children’s drama program that is a feature film or telemovie of at least 80 minutes in length and which is broadcast in prime time is taken to be three times its actual duration: ACS, cl 12(3). ACS, cl 12A. ACS, cl 13. A pro rata formula applies to commercial television services that commence on or after 2 January in a given year. Australian Broadcasting Authority, Australian Content: Review of the Program Standard for Commercial Television, Final Report (1995). ACS, cl 14. ACS, cl 15.

[14.1090] 895

Australian Media Law

Australia’s international obligations [14.1100] In addition to Australian programs, Australian official co-productions, New Zealand programs and Australian/New Zealand programs all count towards the fulfilment of a licensee’s obligations under the Standard. 603 An Australian official co-production is a program made under an agreement or arrangement between the Australian government or government authority and the government or government authority of another country. This concession is designed to encourage Australian participation in the international production industry. The concession to New Zealand programs and Australian/ New Zealand programs is made in order that Australia might comply with the Trade in Services Protocol to the Australia New Zealand Closer Economic Relations Trade Agreement. 604 The CER agreement imposes an obligation on Australia to extend to New Zealanders and their services, market access and treatment that is no less favourable than that accorded to Australians and their services. 605 In order to reduce a licensee’s obligations, Australian official co-productions, New Zealand programs and Australian/ New Zealand programs must satisfy the same creative elements test that must be satisfied by Australian programs, except that the creative roles are undertaken by New Zealanders. 606

Australian content in commercial television advertising [14.1110] The Australian content of advertising on commercial television is governed by Television Program Standard 23. 607 The standard requires 80% of the total annual advertising time broadcast between 6:00 am and midnight to be occupied by Australian produced advertisements. An advertisement is defined as “matter that draws the attention of the public, or a segment of the public, to a product, service, person, organisation or line of conduct in a manner calculated to promote or oppose, directly or indirectly, that product, service, person, organisation or line of conduct.” Unpaid community service announcements, station identifications, program promotions, and the broadcasting of incidental advertising material and sponsorship announcements of no more than ten seconds are not regarded as advertisements for the purposes of the standard. Paid community service announcements for organisations 603

ACS, cl 18. Australia has reserved the right under the Australia United States Free Trade Agreement to adopt or maintain existing co-production arrangements with other countries and to introduce new ones.

604

At one stage, the Australian Content Standard did not include New Zealand or Australian/New Zealand programs. The High Court held that in so far as these programs were not eligible to count towards the transmission quota (which at that time was imposed by the Standard), the Standard was inconsistent with Australia’s international agreements and obligations, as laid down in (then) s 160(d) of the BSA: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490. Following the High Court’s decision, the government directed the ABA to revise the Standard to accommodate the decision. This was done in 1999.

605

Protocol on Trade in Services to the Australia New Zealand Closer Economic Relations Trade Agreement, Arts 4, 5(1).

606 607

ACS, cll 19, 20. This standard was originally imposed under the Broadcasting Act 1942 (Cth), but has been preserved and applied to commercial television broadcasting services under the BSA. The ACMA is required to ensure that at all times a standard is in force that is, or has the same effect as, the standard in s 5 ofTelevision Program Standard 23 – Australian Content in Advertising as in force on 4 August 2004: s 122(6).

896 [14.1100]

Chapter 14 – Regulation of the Media

that have a charitable, public health or educational purpose, advertisements for imported films, videos and recordings, and advertisements for live appearances by overseas entertainers are exempt from the standard. An advertisement is Australian if it is produced and filmed wholly in Australia or New Zealand or partly in Australia and partly in New Zealand (including pre- and post-production), or if Australians have exercised creative and administrative control over pre-production, filming and post-production. Creative and administrative control is regarded as exercised by Australians if any six of the following ten requirements are satisfied: the producer is Australian, the principal director is Australian, the director of photography is Australian, the writers are Australian, the visual editing is carried out by Australians, the production of the sound track is carried out by Australians, the talent featured in the advertisement is Australian, all performances on the soundtrack (including voice-overs) are by Australians, any music is composed by Australians or any animation and computer graphics forming a substantial and integral part of the advertisement are carried out by Australians. Advertisements produced in New Zealand or by citizens and residents of New Zealand are regarded as Australian. 608

The Australia-United States Free Trade Agreement and the Australian Content Standard [14.1120] A free trade agreement between Australia and the United States (“AUSFTA”) was signed on 18 May 2004 and came into operation on 1 January 2005. 609 The purpose of the agreement is to integrate the economies of the two countries and to break down trade barriers. However, each party was permitted to insert certain reservations and exceptions into the Agreement which would allow them to maintain or adopt measures that would otherwise be inconsistent with the AUSFTA. These reservations are contained in two Annexures. Annex I can be used to reserve the right to maintain existing non-conforming measures that are specifically identified in that Annex, although such measures cannot be made more restrictive. Annex II can be used to identify certain sectors or activities where a party reserves the right to maintain existing non-conforming measures, to make existing non-conforming measures more restrictive, or to introduce new non-conforming measures. The Australian Government inserted certain provisions into these Annexures in order to protect Australia’s broadcasting and audio-visual services. The following paragraphs outline the provisions in the Annexures that deal with Australia’s local content rules for commercial television broadcasting services. 610 Despite the government’s insistence that these provisions adequately protect local content on commercial television, many believe that the AUSFTA depletes the Australian Government’s ability to determine cultural policy for the audio-visual sector into the future. Indeed, many take the view that the Australian Government should have insisted on exempting all cultural industries from the AUSFTA, as it did in the Australia-Singapore Free Trade Agreement. 608 609 610

TPS 23(9) defines an “Australian” as a person who is a citizen of, or ordinarily resident in, Australia or New Zealand. US Free Trade Agreement Implementation Act 2004 (Cth). But for the Annexures, the Australian Content Standard would be inconsistent with the Cross Border Trade in Services chapter and the Investment chapter of the AUSFTA.

[14.1120] 897

Australian Media Law

Annex I [14.1130] Under Annex I.14, Australia is permitted to maintain the existing 55% local content transmission quota and the existing 80% advertising transmission quota on programming between 6 am and midnight on free-to-air commercial television on both analog and digital (but not multi-channelling) platforms. Australia can also continue the subquotas for particular program formats within the 55% transmission quota. 611 However, although this Annexure protects the current levels of Australian content on free-to-air television, they are capped at these levels and cannot be increased. Moreover, the reservation is subject to a ratchet provision, which means that if Australia ever reduces its local content rules (making them less inconsistent with its obligations under AUSFTA), they can never be increased again to the current levels. 612

Annex II [14.1140] Under Annex II, Australia has reserved the right to adopt or maintain a number of measures pertaining to audio-visual services, two of which are relevant to Australian content on commercial television. The first reserves Australia’s right to adopt transmission quotas for local content on commercial television multi-channels. The Annex provides that a transmission quota of no more than 55% may be imposed on the programming of an individual channel and may not be imposed on more than two channels or 20% of the total number of channels made available by an individual broadcaster (including the primary service), whichever is greater. 613 No transmission quotas can be applied to more than three channels of an individual service provider. Subquotas for particular program formats (for example, drama, documentary, children’s programs) may be applied within the transmission quota “in a manner consistent with existing standards”. 614 This provision has attracted criticism on the basis that it will leave many channels in a multi-channel environment unable to be subjected to Australian content rules; up to 80% would be under no such obligations. Accordingly, as channels become more numerous, local content will dilute. Annex II also reserves Australia’s right to impose transmission quotas for local content in relation to advertising, where more than one channel of programming on a particular service is made available by a provider of free-to-air commercial television broadcasting services. It provides that such quotas cannot exceed 80% of the advertising time on an individual channel of a service provider transmitted annually between 6 am and midnight, and may not be imposed on more than three channels made available by that provider. The second provision in Annex II that pertains to free-to-air commercial television broadcasting services is designed to accommodate technological advances and changes to the industry. It requires that where a free-to-air commercial television channel that is subject to a transmission quota is rebroadcast over another transmission platform or moved to another 611

It is unclear whether the AUSFTA would permit the Government to introduce new subquotas for different program genres within the 55% quota.

612 613

AUSFTA, Art 10.6.1(c). See [14.370] and [14.940] regarding the government’s current stance on the application of the Australian content standards to multi-channels. It is unclear whether this would prevent the introduction of new subquotas or changes to existing ones.

614

898 [14.1130]

Chapter 14 – Regulation of the Media

transmission platform, the quota may be applied respectively to the rebroadcast channel or that new channel. Thus if a commercial television broadcaster rebroadcasts an analog service in digital mode, the same content requirements can be applied to the digital mode.

Australian content on subscription television [14.1150] Australian content on subscription television is governed by Div 2A of Pt 7 of the BSA, which was inserted in 1999 615 following a review of a largely unenforceable condition that was embodied in the now repealed s 102. Basically, Div 2A requires subscription television broadcasting licensees who provide a subscription television broadcasting service that is devoted predominantly to drama programs, to ensure that a minimum of 10% of the total program expenditure for each financial year is spent on new eligible drama programs. Any expenditure on new eligible drama programs in excess of 10% can be carried forward to the next financial year. Compliance with the requirement is a licence condition of subscription television broadcasting licences. The purpose of the expenditure condition is to ensure that subscription television broadcasters contribute to the cultural objectives of the BSA, especially s 3(e) which relates to “developing and reflecting a sense of Australian identity, character and cultural diversity”, and support the Australian production industry. These two purposes are interrelated: the achievement of the cultural objectives depends on the development of the local production industry. However, the industry support objective is also valued for the employment opportunities it creates and for the fact that it provides local material for export. The condition differs from the Australian content requirements imposed on commercial television broadcasters in a number of respects. Firstly, the requirement imposed on subscription television broadcasters pertains to the expenditure of money, not to the transmission of programs. This means that there is no guarantee that the money spent on a program will translate into a viewing opportunity for subscribers, yet money expended on a program that is never televised is still eligible to be counted. A mandatory broadcast requirement was thought to be ill-adapted to subscription television, which is different in nature to commercial television. For example, subscription television has no concept of prime time, has a high repetition of programs over short amounts of time, and has specialist niche channels whose formats may not be suited to the broadcast of Australian programs. An expenditure requirement, on the other hand, is adapted to the particular size and characteristics of the individual channels, from the high spending movie channels to the low budget niche channels. It was thought that licensees could cope with a 10% requirement without rendering the service unviable or having to increase subscription fees. The second main difference is that the expenditure requirement relates only to drama programs, and does not extend to other channel types such as documentary, sport, art, or music channels. The decision to limit the expenditure requirement to drama channels reflects the view that drama has the greatest cultural impact and thus plays an important role in shaping a sense of “Australian identity, character and cultural diversity”. It also reflects the view that the economics of local program production and the cost differentials between Australian and 615

See Broadcasting Services Amendment Act (No 3) 1999 (Cth).

[14.1150] 899

Australian Media Law

foreign programs makes drama most vulnerable to import replacement. Minimum expenditure requirements have not been imposed on other channel types even though the subscription television industry is now well established. 616 A service is “devoted predominantly to drama programs” if drama programs constitute more than 50% of program material on the service (in terms of duration) over the relevant financial year. The definition of a drama program mirrors the definition used in the Australian content standard for commercial television broadcasters. 617 A drama program is “eligible” if it is an Australian program, an Australian/New Zealand program, a New Zealand program or an Australian official co-production. 618 An eligible drama program is “new” if the program has not been televised in Australia or New Zealand on a broadcasting service at any time before the expenditure is incurred. “Expenditure” means expenditure incurred in acquiring or producing a program or program material, certain pre-production expenditure incurred in relation to program material, or expenditure incurred by way of investment in program material. As a generalisation, pre-production expenditure cannot be counted unless principal photography has commenced. However, expenditure incurred in developing the screenplay or a script outline can be counted, subject to some conditions, even if the project has not progressed towards principal photography. 619 The application of the condition varies according to who provides the channels for a particular subscription television service. If a subscription television licensee provides a service devoted predominantly to drama and supplies the program material for the service, the application of the condition is straightforward. For each financial year of operation, the licensee’s new eligible drama expenditure in relation to the drama service must equal or exceed 10% of the licensee’s total program expenditure in relation to that service. However, it is far more common for a channel provider to package programs as channels and sell them to subscription television licensees. Where this is the case, the licensee does not incur any expenditure on the making of programs, and thus would avoid the expenditure requirement. In order to make the requirement effective, where a licensee has purchased a complete channel from a channel provider, the licence condition requires that, for each financial year of operation, the channel provider must spend at least 10% of its program expenditure in relation to that channel on new eligible drama programs. In other words, the 10% expenditure requirement is calculated by reference to the total expenditure incurred by the channel 616

617

In 2005 the Government decided that there was no compelling case for subjecting documentary channels to minimum levels of expenditure on new eligible documentary programs: Commonwealth Government, Department of Communications, Information Technology and the Arts, Review of Australian and New Zealand Content on Subscription Television Broadcasting Services (2005). See [14.1060].

618

The same test that is used to determine whether a program is an Australian or New Zealand program under the Australian Content Standard is used under this condition. New Zealand programs are included for the same reason that they count towards the fulfilment of the Australian Content Standard, namely, fulfilment of Australia’s obligations under the CER agreement.

619

BSA, ss 103B, 103H, 103JA. The intent is to encourage greater investment in script development and encourage licensees and content providers to become more involved in the early stages of drama production in Australia: Explanatory Memorandum to the Broadcasting Services Amendment (Subscription Television Drama and Community Broadcasting Licences) Bill 2006 (Cth), p 1.

900 [14.1150]

Chapter 14 – Regulation of the Media

provider on that channel. If the 10% expenditure requirement is not met for a particular financial year, the shortfall can be made up in the next financial year. The provision for shortfall recognises that, whilst the licensee bears legal responsibility for complying with the requirements, the licensee has limited control over the channel provider’s expenditure. If a channel provider does not maintain an Australian office or carry on business in Australia, the channel provider is referred to in the Division as a “pass through provider”. In this case, it is a condition of the licence that, for each financial year of operation, the licensee’s new eligible drama expenditure in relation to the service equals or exceeds 10% of the licensee’s total program expenditure in relation to the channel. The obligation is imposed on the licensee, not the pass through provider, in recognition of the fact that it is difficult for the ACMA to obtain program expenditure information from a provider that is based overseas. However, in calculating the 10%, it is permissible to take into account what the pass through provider has spent on new Australian drama. Shortfall provisions also apply to pass through providers. Appropriate adaptations are made to the scheme to accommodate licensees, channel providers and pass through providers which do not provide a whole channel, just a package of programs. Licensees and channel providers are required to lodge annual returns providing information about their program expenditure so that the ACMA is in a position to monitor compliance with the requirements. Under Annex II of the AUSFTA, Australia has reserved the right to maintain the current 10% local drama expenditure quota for subscription television. 620 The agreement creates scope for the Australian Government to increase the expenditure to a maximum level of 20% if it finds that the current quota does not meet the Government’s stated goal for that quota. 621 Even at 20%, Australia would still have a very low quota for subscription television compared with the rest of the developed world. The AUSFTA requires a finding to be made through a transparent process that includes consultations with any affected parties, including the United States. 622 It also requires any increase to be non-discriminatory and no more burdensome than necessary. 623 Australia has also reserved the right to impose a quota not exceeding 10% on four other program formats: the arts, children’s, documentary and educational programs. However, no one channel can be subject to an expenditure requirement for more than a single program format.

620 621 622

623

The wording of the Annex would appear to prevent the Australian Government from converting the expenditure quota into a transmission quota. What exactly are the stated goals for such expenditure? Could the Australian Government change its stated goals? This would include any US organisations involved in the Australian subscription television market, including US film and television producers. These organisations would presumably oppose any increase, thus the mechanism might actually reduce the likelihood of a rise in local content expenditure quotas. It has been suggested that any increase in Australian drama expenditure would be discriminatory and burdensome to US producers because US producers do not create Australian drama content. If so, the US could challenge a rise under the Dispute Process in AUSFTA, Art 21.

[14.1150] 901

Australian Media Law

Cash for comment [14.1160] In 1999 the ABA held a public inquiry, which became known as the “Cash for Comment” Inquiry, into allegations that John Laws and Alan Jones, both presenters on radio station 2UE at the time, had entered into commercial arrangements with several commercial entities pursuant to which they would make favourable comments on air in relation to those entities. These comments went beyond “live reads” whereby a presenter is paid by an advertiser to read out an advertisement in order that the product might be vested with the presenter’s credibility. 624 Live reads are “transparently commercial”, their “aims and motives understood by an audience well versed in the culture of advertising”. 625 The nature of the arrangements entered into made it impossible to determine whether these presenters were expressing genuine personal support for a product, a campaign or an idea (“editorial comment”), or delivering a paid advertisement. The ABA released its report on 7 February 2000. 626 It found that 2UE, through its presenters, had breached the BSA on five occasions by not properly identifying political matter, since many of the comments made by the presenters were found to be “political”. 627 The ABA also found that 2UE had, on 60 occasions, breached Code 2 of the Commercial Radio Codes of Practice (News and Current Affairs) which concerned fairness and accuracy in news and current affairs programs by failing to ensure that “relevant available facts” were not withheld. Finally, 2UE was found to have breached, on 30 occasions, Code 3 of the Commercial Radio Codes of Practice (Advertising) which required broadcasters to ensure that advertisements are not presented as news programs or other programs. The ABA also investigated three other radio stations as part of a wider inquiry into the commercial radio industry. 628 Pending completion of the commercial radio inquiry, the ABA imposed two new conditions on 2UE’s licence pursuant to its powers under s 43. 629 The commercial radio inquiry was completed, and a final report published, in August 2000. 630 Having found that the failure to ensure the effective operation of the radio industry’s codes of practice was systemic, the ABA decided that industry-wide measures were warranted. Accordingly, in November 2000 it determined three program standards for all commercial radio licensees: the Broadcasting Services (Commercial Radio Current Affairs Disclosure) Standard 2000, the Broadcasting Services (Commercial Radio Advertising) Standard 2000 and the Broadcasting Services (Commercial Radio Compliance Program) 624 625 626

R Baker, “Political Payola: The ’Cash for Comment’ Scandal and Australia’s Protection of Political Speech” (2002) 7(1) Media and Arts Law Review 27. Baker (2002) 7(1) Media and Arts Law Review 27. Australian Broadcasting Authority, Commercial Radio Inquiry: Report of the Australian Broadcasting Authority Hearing into 2UE Sydney (February 2000). The report is summarised and discussed in M Leiboff, “Commercial Radio Inquiry: Report of the ABA Hearing into 2UE and Impositions of Conditions” (2000) 5(2) Media and Arts Law Review 112; L Hitchens, “Commercial Broadcasting – Preserving the Public Interest” (2004) 32(1) Federal Law Review 79.

627 628

The obligation to identify political matter is outlined in [4.640]. They were: 6PR Perth, 3AW Melbourne and 5AD Adelaide.

629 630

See [14.810]. Australian Broadcasting Authority, Commercial Radio Inquiry: Final Report of the Australian Broadcasting Authority (August 2000).

902 [14.1160]

Chapter 14 – Regulation of the Media

Standard 2000. Eight years later, in December 2008, the ACMA announced its intention to conduct a comprehensive, first principles, evidence-based review of these standards. 631 A number of factors prompted this review. The main one was an investigation conducted by the ABA in 2004 in response to a complaint that arose out of the sponsorship by Telstra Corporation Ltd of the Alan Jones program on radio station 2GB, pursuant to which the Macquarie Radio Network, the licensee of the station, agreed to advertise and promote Telstra’s telecommunications services on Mr Jones’ program. This arrangement had not been disclosed on air. However, despite finding that Mr Jones’ commentary on Telstra had become “predominantly positive” since the agreement, the ABA concluded that the arrangement was not caught by the terms of the standard, in particular, the definition of “commercial agreement”, and therefore did not have to be disclosed. 632 This definition only caught agreements entered into by presenters. In this case the agreement was with the licensee; Mr Jones was not a party to the agreement and received no direct payment in respect of it. 633 Nor was the conduct caught by the Commercial Radio Codes of Practice. The commercial radio industry argued against the retention of the standards, maintaining that they were costly to implement. They contended that “cash for comment” should be addressed in the radio industry’s codes of practice. The review culminated in a report in 2011 which made a number of recommendations. 634 The outcome was that the Broadcasting Services (Commercial Radio Current Affairs Disclosure) Standard 2000 was revoked and replaced by the Broadcasting Services (Commercial Radio Current Affairs Disclosure) Standard 2012. Like its predecessor, the standard is designed to encourage all commercial radio broadcasting licensees who broadcast current affairs programs to be responsive to the need for fair and accurate coverage of matters of public interest by requiring the disclosure of commercial agreements or other arrangements that have the potential to affect the content of current affairs programs. That is, “cash for comment” is not prohibited, but must be disclosed. The specific obligations are fourfold. There must be on-air disclosure, during current affairs programs, of any commercial agreement that may affect the content of those programs and of the payment of production costs by an advertiser or sponsor. 635 Licensees must keep a register of commercial agreements between sponsors and presenters of programs and certain information and documents must be kept and given to the ACMA on request. Licensees must make it a condition of employment of a presenter that information or documents relating to any 631

Australian Communications and Media Authority, “ACMA to Review Commercial Radio Standards” (Media Release 158/2008, 18 December 2008).

632

Australian Broadcasting Authority, Investigation Relating to Sponsorship of the Alan Jones Program on Radio 2GB Pursuant to an Agreement between Telstra Corporation and Macquarie Radio Network Pty Ltd (April 2004). Mr Jones did have an equity sharing arrangement with the radio network, so would have received indirect benefits from its agreement with Telstra.

633 634

635

Australian Communications and Media Authority, Regulation Impact Statement: Proposed Changes to the Commercial Radio Standards (September 2011). For a more detailed description of events leading up to this report see Harbour Radio Pty Ltd v Australian Communications and Media Authority (2012) 202 FCR 525 at 529-532. The definition of a “commercial agreement” was drafted more widely to include both presenter agreements and licensee agreements.

[14.1160] 903

Australian Media Law

commercial agreement are provided to the licensee. Finally, licensees are required to ensure that presenters are compelled to assist them to comply with the obligations that relate to the broadcast of programs imposed on the licensee by the BSA, the codes and this standard. 636 The aim of the second standard was to encourage commercial radio broadcasting licensees to respect community standards by requiring advertisements to be presented in such a manner that the reasonable listener is able to distinguish them from other programs. It was replaced by the Broadcasting Services (Commercial Radio Advertising) Standard 2012 which, in turn was revoked and replaced with a commercial radio code of practice that imposes a similar obligation. 637 The third standard required commercial radio broadcasters to formulate, implement and maintain a written compliance policy to ensure that they comply with the BSA, the standards and codes. It was revoked in 2012 and not replaced.

Local content in regional areas [14.1170] One of the objects of the BSA is to encourage providers of commercial and community broadcasting services to be responsive to the need for an appropriate coverage of matters of local significance; another is to promote the availability to audiences throughout Australia of television and radio programs about matters of local significance. 638 The following paragraphs outline the measures that have been taken to ensure that these objects are realised.

Local content requirements for regional commercial television [14.1180] Local content on regional commercial television suffered under the regional equalisation plan introduced in the 1980s, which saw regional television markets increase in size and lose their local connections. 639 In 2003, following an investigation into the closure of a number of local news bureaus and services in regional areas, 640 the ABA imposed local content requirements on commercial television licensees in four aggregated licence areas – Regional Queensland, Northern New South Wales, Southern New South Wales and Regional 636

637 638 639

640

The ACMA’s decision to make the 2012 Standard was challenged in Harbour Radio Pty Ltd v Australian Communications and Media Authority (2012) 202 FCR 525. One basis for the challenge was that neither s 125 of the BSA, nor any other provision of that Act, conferred jurisdiction on the ACMA to make a decision imposing legal obligations contrary to the implied freedom of communication on government and political matters. The second basis was that neither s 125, nor any other provision in the BSA, conferred jurisdiction on the ACMA to create a legal instrument which imposed legal obligations contrary to the implied freedom. These arguments were rejected. The Court held that the ACMA’s decision to make the Standard was not invalid by reason of being incompatible with the implied freedom of political communication. Commercial Radio Code of Practice 2013, Code of Practice 3 Advertising. BSA, s 3(1)(ea), (g). Aggregation brought three commercial television services to many regional areas on the east coast by taking three small monopoly markets and allowing each licensee to expand its signal into the two neighbouring areas. Each of the three licensees proceeded to affiliate with one of the capital city networks at the expense of a close relationship with their communities. Australian Broadcasting Authority, Adequacy of Local News and Information Programs on Commercial Television Services in Regional Queensland, Northern NSW, Southern NSW and Regional Victoria (Aggregated Markets A, B, C and D) (2002).

904 [14.1170]

Chapter 14 – Regulation of the Media

Victoria – by means of a licence condition. 641 The condition subdivided these four large licence areas into a number of local areas that reflected the different communities of interest within each aggregated market, and imposed a requirement that the licensees must broadcast minimum amounts of material of local significance in each of those local areas. The licensees were obliged to keep records of the type and duration of local material broadcast in each local area served, and to provide compliance reports to the regulator. In 2004, the ABA conducted a further investigation into local content in solus and two operator markets, but concluded that the population, revenue, profitability and costs involved made it inappropriate to require licensees in those markets to provide additional material of local significance. 642 Schedule 2 of the Broadcasting Services Amendment (Media Ownership) Act 2006 (Cth) inserted the requirements contained in the aforementioned licence condition into the BSA, with some modifications. Section 43A obliges the ACMA to ensure that, from 1 January 2008, a licence condition is in force that has the effect of requiring certain regional commercial television licensees to broadcast a minimum level of material of local significance in each local area during the periods specified in the condition. The requirements are imposed on commercial television broadcasting licences with licence areas in Northern and Southern New South Wales, Regional, Eastern and Western Victoria, Regional Queensland and Tasmania. Other regional licensees do not have such obligations. It is left to the ACMA to define “local area” and “material of local significance” for the purposes of the condition, although the definition of the latter must be broad enough to cover news that relates directly to the local area concerned. This has been done in the Broadcasting Service (Additional Television Licence Condition) Notice 2014. 643 Material that is broadcast to a local area is regarded as material of local significance if it relates directly to the local area or to the licensee’s licence area. 644 The amount of material of local significance that must be broadcast is determined via a points-based system that operates during certain timing periods. This legislative instrument also imposes certain record-keeping requirements. The issue of local news was revisited when the s 38C satellite licences were introduced. A regional commercial television broadcasting licence whose licence area is wholly or partly within the licence area of a s 38C licence and who broadcasts a local news program in its licence area which has not been previously broadcast in the licence area, is required to provide the program to the s 38C licensee in digital mode for broadcast on the satellite service either simultaneously with the broadcast of the program by the regional commercial television 641 642

643 644

Australian Broadcasting Authority, Broadcasting Services (Additional Television Licence Condition) Notice 7 April 2003. Australian Broadcasting Authority, Adequacy of Local News and Information Programs on Commercial Television Broadcasting Services in Regional and Rural Australia (Solus Operator and Two Operator Markets) (2004). The Broadcasting Service (Additional Television Licence Condition) Notice 2014 replaced the Broadcasting Service (Additional Television Licence Condition) Notice 8 November 2007. The Explanatory comments that appear in Sch 3 of the Notice give a list of examples of material of local significance. Advertising or sponsorship matter, whether or not of a commercial kind, is not material of local significance unless it is a community service announcement. Nor is material, including a station promotion, that constitutes an announcement that material of local significance will appear later.

[14.1180] 905

Australian Media Law

broadcasting licensee in its licence area or as soon as practicable thereafter. 645 A local news program is a program that consists solely of local news and/or local weather information or a program that consists primarily of local news and/or local weather information with the remainder of the program consisting of other news and/or weather information. It does not include short segments or headline updates broadcast for the sole or primary purpose of promoting another program or that repeats news content previously broadcast by the licensee. The regional licensee does not have to supply all or part of a program if it has reasonable grounds to believe that the broadcasting of such a program or part of the program in any jurisdiction in the licence area of the s 38C licence could result in the s 38C licensee committing an offence, becoming liable to a civil penalty, breaching an order or direction of a court or being in contempt of court. 646 A regional commercial television broadcasting licence is also subject to a condition that, if the licensee broadcasts a local news program in the licence area on two or more occasions and the licence area is wholly or partly included in the licence area of a s 38C licence, the licensee will take reasonable steps to ensure that it does not supply the program to the s 38C licensee more than once. 647 Section 38C licensees are subject to a complementary licence condition that requires them to broadcast these programs. 648 In 2013 the Minister directed the ACMA to investigate the operation and effectiveness of s 43A of the BSA. 649 The ACMA found that the regulatory obligation was operating effectively, but did not recommend that it be extended to all regional commercial television broadcasting licensees in view of the cost of providing local content and the capital expenditure involved in extending it to smaller regional markets. 650

645 646

BSA, s 43AA. The obligation is imposed as a licence condition. However, it does not apply to a commercial television broadcasting licence allocated under s 40(1): s 43AA(6). BSA, s 43AA(3).

647

BSA, s 43AA(3B).

648

BSA, Sch 2, cl 7D. This clause provides that s 38C licensees are subject to the condition that, if a local news program is provided, or required to be provided, by a regional commercial television broadcasting licensee under s 43AA, the s 38C licensee will broadcast the program as soon as practicable after the regional licensee begins to broadcast the program unless the s 38C licensee has previously broadcast the program on an authorised service or the broadcasting of a particular program in any jurisdiction in the s 38C licence area could result in the licensee committing an offence, becoming liable to a civil penalty, breaching an order or direction of a court or being in contempt of court. Broadcasting Services (Material of Local Significance – Regional Aggregated Commercial Television Broadcasting Licences) Direction 2013. Australian Communications and Media Authority, Regional Commercial Television Local Content Investigation (2013) p 3. The ACMA also recommended a reduction in the reporting and record keeping requirements.

649 650

906 [14.1180]

Chapter 14 – Regulation of the Media

Local content and local presence requirements for regional commercial radio [14.1190] The repeal of the cross-media ownership laws and the consolidation considered likely to ensue raised the prospect of a decline in local content on regional commercial radio. 651 In an attempt to address this concern, Sch 2 of the Broadcasting Services Amendment (Media Ownership) Act 2006 imposed a number of requirements on regional commercial radio broadcasting licensees which are designed to ensure that they continue to provide local content, maintain a local presence and meet minimum service standards for local news and information. 652 These requirements were not well received by regional commercial radio licensees. These licensees regarded themselves as having been unfairly singled out from among the traditional media platforms and subjected to detailed intervention in their day-to-day running. 653 They argued that the high compliance costs would make local news and current affairs content even more costly to produce and that this would impact on their financial viability and deter new and smaller players from entering the market. 654 The requirements were reviewed in 2010 by the Department of Broadband, Communications and the Digital Economy and a report was tabled in 2011. 655 The review listed a number of key issues, many of which confirmed the earlier fears of the industry. They included: the high and sometimes prohibitive cost of complying with the requirements, particularly the onerous record keeping and reporting obligations; the need for broadcasters to have more flexibility in how they meet their local content obligations; the perpetual nature of the local presence and local news and information requirements; a discussion of whether the trigger event provisions should be repealed; and whether racing and remote area licences should be subject to the obligations at all. 656 The Broadcasting Legislation Amendment (Regional Commercial Radio Local Content) Act 2012 (Cth) was enacted as a result of the review. In line with the report it exempted regional commercial radio broadcasting licences that are “remote area service radio licences” and “regional racing 651

652

653

654

655

656

A regional commercial radio broadcasting licensee is any licensee whose licence area does not include the General Post Office of the five mainland States or the licence area known as Western Suburbs Sydney RA1. See [14.440]. The local content requirements are additional to the obligations set out in Commercial Radio Codes of Practice 4 which oblige commercial radio licensees to broadcast minimum levels of Australian music: Revised Explanatory Memorandum to the Broadcasting Services Amendment (Regional Commercial Radio) Bill 2011, Item 7. Senate Standing Committee on Environment, Communications, Information Technology and the Arts, Parliament of Australia. Broadcasting Services Amendment (Media Ownership) Bill 2006 and Related Bills (2006), [2.143]–[2.145]. Senate Standing Committee on Environment, Communications, Information Technology and the Arts, Parliament of Australia. Broadcasting Services Amendment (Media Ownership) Bill 2006 and Related Bills (2006), [2.148]. Review of Local Content Requirements for Regional Commercial Radio (2011). The review was mandated by BSA, s 61CT. The report followed a discussion paper released by the Commonwealth Government, Department of Broadband, Communications and the Digital Economy: Local Content Requirements for Regional Commercial Radio (2010). Some of these points were also made by the Productivity Commission, Annual Review of Regulatory Burdens on Business: Social and Economic Infrastructure Services (2009), pp 164-168.

[14.1190] 907

Australian Media Law

service radio licences” 657 from the requirements. The requirements also do not apply to regional commercial radio broadcasting licences allocated under s 40(1). 658 The Act also reduced some of the record keeping and reporting obligations on those regional commercial radio broadcasters that remain subject to the local content and local presence requirements, and introduced greater flexibility in meeting the requirements. The current requirements are described in [14.1200]-[14.1220]

Local content requirements [14.1200] Section 43C of the BSA provides that the ACMA must ensure that at all times on and after 1 January 2008 a licence condition is in force under s 43 which requires regional commercial radio broadcasting licensees to broadcast a minimum level of material of local significance during daytime hours on business days. The phrase “material of local significance” is not defined in the legislation; it is expressly left to be defined in the condition to be imposed by the ACMA. 659 Section 43C sets default requirements pertaining to the minimum amount of material of local significance that must be broadcast by regional commercial radio broadcasting licensees (4.5 hours) and the hours during which the material must be broadcast (6 am – 6 pm). In anticipation that these requirements might be too onerous, the Minister directed the ACMA to review the local content quota requirements for regional radio in advance of the required licence condition being imposed from 1 January 2008. 660 The ACMA delivered its report in June 2007. 661 It concluded that the default requirements in s 43C were too burdensome and they were duly altered. The current position is contained in the Broadcasting (Hours of Local Content) Declaration No 1 of 2007 and the Broadcasting Services (Regional Commercial Radio – Material of Local Significance) Licence Condition 2014. Regional commercial radio broadcasters are subject to a licence condition that during daytime hours on a business day, the licensee must broadcast the applicable number of hours of material of local significance. 662 The 4.5 hours default requirement is reduced to 30 minutes for regional commercial radio broadcasters whose licence areas have populations of fewer than 30,000, and three hours in the case of other regional commercial radio broadcasters. 663 The hours during which the local material must be 657 658 659

660 661 662 663

Remote area service radio licences are defined in BSA, s 6. Regional racing service radio licences are defined in BSA, s 8AF. See BSA, s 43C(2A)(c); s 50A. If a regional commercial radio broadcasting licensee is required to comply with s 61CD, which imposes minimum service standards for local news and information, the definition of “material of local significance” must be broad enough to cover material that the licensee must broadcast in order to comply with that section: BSA, s 43C(2). Broadcasting Services (Local Content on Regional Commercial Radio) Direction No 1 of 2006. Australian Communications and Media Authority, Local Content Levels Investigation Report (2007). Broadcasting Services (Regional Commercial Radio – Material of Local Significance) Licence Condition 2014, cl 8. A business day is a day that is not a weekend or a public holiday. Broadcasting (Hours of Local Content) Declaration No 1 of 2007. For racing and remote area service licences, the requirement was five minutes, and for s 40 licences the requirement was 30 minutes. However, as explained in [14.1190], remote area service radio licences, regional racing service radio licences and licences allocated under s 40(1) of the BSA are now completely exempt from the requirements.

908 [14.1200]

Chapter 14 – Regulation of the Media

broadcast have been expanded to between 5 am and 8 pm on business days. 664 In recognition that many staff take holidays during December and January, the Broadcasting Legislation Amendment (Regional Commercial Radio) Act 2012 (Cth) reduced the number of weeks per year in which licensees must provide the regulated amounts of local content from 52 to 47 weeks. 665 “Material of local significance” is defined as material that is hosted in, 666 produced in 667 or relates to 668 the licence area of the regional commercial radio licensee, or material that is broadcast in compliance with the licensee’s minimum service obligations relating to local news and information that apply after a trigger event has occurred. 669 If the material is advertising or sponsorship matter, and the licensee is to be paid for broadcasting it, the advertising or sponsorship matter must comprise not more than 25% of the applicable number of hours on a relevant business day. Licensees must compile a local content statement in relation to the material of local significance that is to be broadcast in its licence area during daytime hours on that relevant business day and must make and keep certain records and disclose them to the ACMA upon request.

Local presence after a trigger event [14.1210] Section 43B of the BSA obliges the ACMA to ensure that, at all times after the commencement of Sch 2 of the Broadcasting Services Amendment (Regional Commercial Radio) Act 2012, regional commercial radio broadcasting licensees are subject to a licence condition that has the effect of requiring that, if a trigger event for a regional commercial radio broadcasting licence occurs, then throughout the 24-month period beginning when the trigger event occurs, the licensee must maintain at least the existing level of local presence. 670 The 664 665

666 667

668

669

670

Broadcasting Services (Hours of Local Content) Regulations 2007 (Cth). BSA, s 43C(1A). The default exemption period commences on the second Monday in December each year. The ACMA may, however, specify a different five week period in relation to specified regional commercial radio broadcasting licensees. The ACMA has exercised this power: see Broadcasting Services (Regional Commercial Radio – Specification of Periods for Sub-sections 43C(1A) and 61CD(2)) Instrument 2012. Material is “hosted in” a licence area if each announcer of the material, including an announcer of a particular item of music that forms part of the material, is in the licence area when the material is broadcast: cl 7. Material is “produced in” a licence area if one or more individuals in the licence area direct the creative and administrative aspects of the production of the material and two or more of the following activities occur in the licence area: compilation, developing and implementing programming concepts, editing, researching, scripting, technical operation, and any other activity relating to the creative and administrative aspects of the production of material: cl 7. Material “relates to” the licence area if it relates to any of the following matters: an economic, government, political, social, educational, health or employment issue as it affects the licence area; an event in the licence area, including an event that has not yet occurred; a person or organisation associated with the licence area or their views; weather conditions in the licence area, a cultural interest or an issue relating to culture as it affects the licence area, a natural or built environment in the licence area; a body operating in the licence area that deals with community, welfare, religious, educational or other community service; or an emergency warning broadcast at the request of an emergency service agency. Other material can qualify if a direct and substantial relationship exists between the material and the licence area: cl 7. Broadcasting Services (Regional Commercial Radio – Material of Local Significance) Licence Condition 2014, cl 6. An announcement – including a station promotion – that material of local significance will be broadcast at a later time is not itself material of local significance: cl 6(4). The Minister is empowered to give the ACMA written directions concerning the fulfilment of its obligations under this provision, and any directions must be complied with: s 43B(8), (9).

[14.1210] 909

Australian Media Law

phrase “existing level of local presence” is left to be defined in the condition, although the definition is required to deal with staffing levels, studios and other production facilities. The current licence condition is contained in the Broadcasting Services (Regional Commercial Radio – Local Presence) Licence Condition 2014. 671 The condition is designed to ensure that existing staffing levels and studio and other production facilities are maintained following a trigger event. It contains a method of calculating staffing levels and use of studios etc. It also imposes reporting obligations on licensees at the end of the 24 month period to enable the ACMA to assess compliance. The requirement to maintain an existing level of local presence only applies to a regional commercial radio broadcasting licensee once a “trigger event” for that licence has occurred. A trigger event has occurred in any one of the following circumstances: 672 • a regional commercial radio broadcasting licence is transferred to another person; • a person starts or ceases to be in a position to exercise control of a regional commercial radio broadcasting licence (called a “control event”); 673 • a new registrable media group comes into existence and the licence is in the group; 674 • there is a change of controller of a registrable media group of which the licensee is part. 675 The Broadcasting Services (Regional Commercial Radio) Regulation 2013 excludes a number of scenarios from the definition of a trigger event. They include “transactions resulting from corporate group restructures where there is substantial continuity of control of the relevant licence (and associated station) or registrable media group, from higher up the corporate chain. Such transactions are considered likely to have relatively minimal effect on the day-to-day operations of a licensee company or group, such that they should not trigger regulatory obligations in relation to local presence and minimum service standards”. 676

671

672

The ACMA first gazetted a local presence licence condition in March 2007: Australian Media and Communications Authority, Broadcasting Services (Additional Regional Commercial Radio Licence Condition – Local Presence) Notice 22 March 2007. This condition was revoked and replaced with the Broadcasting Services (Regional Commercial Radio – Local Presence) Licence Condition 2012 which, in turn was revoked and replaced with the Broadcasting Services (Regional Commercial Radio – Local Presence) Licence Condition 2014. BSA, ss 43B(10); 61CB

673

A control event is not a “trigger event” if it is attributable to a transfer of shares from one person to a near relative without consideration (for example, a transfer by inheritance) or if the control event is attributable to circumstances beyond the control of each person who was, immediately before it occurred, in a position to exercise control of the regional commercial radio broadcasting licence concerned (for example, medical incapacitation) or if the event is exempted by the regulations.

674

For the meaning of “registrable media group” see [15.160]. This provision does not apply to a registrable media group that comes into existence only as a result of the ACMA having varied the designation of a licence area or licence area population, or to a registrable media group that is exempted by regulation.

675

This provision does not apply if the change of controller is attributable to circumstances beyond the control of each person who was, immediately before the change occurred, a controller of the registrable media group or to changes of controller that are exempted by the regulations. Explanatory Statement to the Broadcasting Services (Regional Commercial Radio) Regulation 2013.

676

910 [14.1210]

Chapter 14 – Regulation of the Media

Local news and information after a trigger event [14.1220] Division 5C of Pt 5 of the BSA requires regional commercial radio licensees to meet certain minimum service standards relating to local news and information if a trigger event in relation to that licence has occurred. 677 These minimum service standards relate to: • local news (the licensee must broadcast at least five “eligible local news bulletins”, which are local news bulletins that are broadcast on at least 5 days during the week during prime time hours, 678 have a total duration of at least 12.5 minutes per day, adequately reflect matters of local significance and which have not previously been broadcast in the licence area concerned); 679 • local weather (at least five local weather bulletins must be broadcast per week during prime time hours); • local community service announcements (at least one per week); • emergency warnings (as requested by emergency service agencies); and • if the Minister so declares, designated local content programs, which are programs about matters of local significance other than the aforementioned bulletins, announcements and warnings. 680 Content that meets these requirements counts towards the local content requirements under s 43C. The ACMA may define what is meant by “local” for the purposes of the application of these requirements to a licence area. 681 The Broadcasting Services (Meaning of Local) Instrument 2007 provides that news bulletins, weather bulletins, community service announcements and designated local content programs are local if they relate to a licensee’s licence area. As is the case with material of local significance, the obligation to provide local news and information only applies for 47 weeks of the year. If a trigger event for a regional commercial radio broadcasting licence occurs, the licensee also comes under an obligation to provide the ACMA with a draft local content plan for the licence within 90 days. 682 A local content plan must set out how the licensee will comply with its minimum service obligations. The ACMA must assess the commitment of local broadcasters to meeting their local content requirements by deciding whether to approve the draft local content plan. If the ACMA approves the draft it must register the plan in a register which is available for public inspection via the internet. If a licensee fails to provide a local content plan, or the ACMA refuses to approve a plan, the ACMA may determine a plan which becomes the approved local content plan for that licence. Provision is made for local content plans to be varied, especially if the minimum service standards are increased, and reviewed every three years by the ACMA. Annual compliance reporting requirements also apply. 677 678 679 680 681 682

BSA, s 61CD. Compliance with the requirement is a licence condition. Prime time hours are 5 am to 8 pm: Broadcasting Services (Hours of Local Content) Regulations 2007. If a licensee had broadcast more than this target number in the 12 months leading up to a trigger event, the licensee must maintain this higher number indefinitely: BSA, s 61CE(1). Any Ministerial decision to impose additional local content obligations on regional radio licensees must be informed by an ACMA investigation into the matter: s 61CR(1). BSA, s 61CC. Local content plans are dealt with in BSA, Pt 5, Div 5C, Subdiv C.

[14.1220] 911

Australian Media Law

The anti-siphoning regime The current regime [14.1230] When Parliament legislated to permit the introduction of subscription television, it had to decide what to do about major events that had traditionally been broadcast to the general public on free-to-air television. In the absence of legislative intervention, subscription television broadcasters might acquire exclusive rights to broadcast these events, with the result that persons wishing to view these events would be forced to subscribe to the service or miss out. This outcome was thought to be objectionable on social equity grounds. To prevent this from happening, Parliament imposed a condition on subscription television broadcasting licences that a licensee will not acquire the right to televise certain events specified by the Minister on its subscription television service unless the right has first been acquired by a national broadcaster or by commercial television broadcasting licensees (other than commercial television licences issued under s 40 683 or satellite commercial television broadcasting licences 684) who reach more than 50% of the Australian population. 685 Although the purpose of the list is to enable events of national importance and cultural significance to remain available on free-to-air television, 686 this has not prevented the Minister from adding new sports to the list which have no history of being broadcast on free-to-air television. It is important to emphasise what the anti-siphoning condition does not do. The condition does not prevent listed events from being broadcast on subscription television or stipulate which medium can or should broadcast an event first. Nor does the condition compel national or commercial broadcasters to acquire the right to broadcast the events on their services or oblige them to transmit events to which they have acquired broadcast rights. 687 The condition neither prevents nor obliges free-to-air broadcasters from on-selling events they have acquired, but do not wish to use, to subscription television broadcasters. These are all 683

The reason that the acquisition of rights to events on the anti-siphoning list by commercial television broadcasters that do not use the broadcasting services bands does not free up subscription television licensees to acquire rights is that the services provided under these licences are likely to be less accessible to audiences. To allow the acquisition of rights by these broadcasters to satisfy the precondition for subscription television licensees to be able to proceed to acquire rights was considered to be inconsistent with the purpose of the anti-siphoning rules: Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Television) Bill 2006 (Cth), Item 35.

684

Licences issued under s 38C are excluded from the audience reach test because they are regarded as niche services, since a conditional access scheme applies to their reception: Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Television) Bill 2006 (Cth), Item 74. BSA, Sch 2 Pt 6 cl 10(1)(e). For the purposes of this condition, if a program supplier for a commercial television broadcasting licensee that uses the broadcasting services bands has the right to televise an event, the licensee is also taken to have this right: Sch 2 Pt 6, cl 10(1B). For a history of the anti-siphoning regime see: M Westfield, The Gatekeepers: The Global Media Battle to Control Australia’s Pay TV (2000); Dr R Jolly, Sport on Television: To Siphon or Not to Siphon? (Research Paper No 14, Parliamentary Library, Australian Parliament, 2009-10). Commonwealth Government, Department of Broadband, Communications and the Digital Economy, Sport on Television: a Review of the Anti-siphoning Scheme in the Contemporary Digital Environment (2010), p 15. In fact, the licence condition says nothing about coverage. However, as explained in [14.360], events on the anti-siphoning list cannot be shown on free-to-air digital multi-channels before they have been shown on the broadcaster’s primary channel.

685

686 687

912 [14.1230]

Chapter 14 – Regulation of the Media

commercial decisions for the free-to-air broadcasters. The condition simply prevents subscription television broadcasters from acquiring the right to televise a listed event before it has been acquired by a national or commercial broadcaster. In so providing, the legislation assumes that the specified events are so prominent and attractive to audiences that they will in fact be acquired and broadcast by free-to-air broadcasters. This assumption has generally been correct in respect of the acquisition of rights, but not in relation to their broadcast, as many acquired events have not, for commercial reasons, been televised on free-to-air television. Subscription television broadcasters have consistently argued that “the scheme creates an anti-competitive environment in the market for sports rights and elevates free-to-air broadcasters as the indirect gate-keepers for the broadcast of the majority of sporting events” 688 which has hindered the growth of their industry. 689 Many sporting codes and bodies that own the rights to events also object to the regime, since it prevents them from negotiating with the subscription television operators prior to the de-listing period, thereby restricting their ability to negotiate freely and get a fair market price. 690 This has a flow on effect, since a proportion of the revenues derived from the sale of broadcast rights are inevitably re-invested in the development of the sport, often at a grass roots level. 691 By contrast, the free-to-air broadcasters argue that the list serves the public interest. It should also be noted that the condition does not prevent entities other than subscription television broadcasters from acquiring rights to listed events before the national and commercial broadcasters, although the licence condition imposed on subscription television broadcasters would prevent that entity from on-selling those rights to a subscription television broadcaster unless they have been first acquired by a free-to-air television broadcaster. 692 Other bodies that might purchase the rights include bodies related to the subscription television broadcasters – such as individual channel providers – and online media. Indeed, there have been a number of occasions on which a sporting body has sold the subscription television rights to a subscription television channel provider and then proceeded to offer the rights to free-to-air broadcasters on a non-exclusive basis. If the free-to-air broadcasters

688

Commonwealth Government, Department of Broadband, Communications and the Digital Economy, Sport on Television: a Review of the Anti-siphoning Scheme in the Contemporary Digital Environment (2010), pp 10-11. Similar views have been expressed by the Australian Competition and Consumer Commission, Inquiry into Emerging Market Structure in the Communications Sector (June 2003), pp 72-76 and by the Productivity Commission, Annual Review of Regulatory Burdens on Business: Social and Economic Infrastructure Services (August 2009), pp 154-164.

689

Senate Standing Committee on Environment, Communications, Information Technology and the Arts, Parliament of Australia, Broadcasting Services Amendment (Media Ownership) Bill 2006 and Related Bills (2006), [3.91]. Commonwealth Government, Department of Broadband, Communications and the Digital Economy, Sport on Television: a Review of the Anti-siphoning Scheme in the Contemporary Digital Environment (2010), p 10. See also: Independent Sports Panel, The Future of Sport in Australia (the Crawford Report) (2009).

690

691 692

Commonwealth Government, Department of Broadband, Communications and the Digital Economy, Sport on Television: a Review of the Anti-siphoning Scheme in the Contemporary Digital Environment (2010), p 9. Commonwealth Government, Department of Broadband, Communications and the Digital Economy, Sport on Television: a Review of the Anti-siphoning Scheme in the Contemporary Digital Environment (2010), pp 34-35.

[14.1230] 913

Australian Media Law

refuse to acquire non-exclusive rights, 693 the subscription television broadcaster could apply to have the event delisted. Opinions differ as to whether this practice undermines the integrity of the anti-siphoning regime. 694 The types of rights that might be acquired by a broadcaster in relation to an event include the right to broadcast the event live, the right to broadcast replays of the event, the right to broadcast highlights or news highlights of the event, or the right to broadcast the sound simultaneously on radio. 695 The licence condition is silent as to the nature and extent of the rights that must be acquired by a free-to-air broadcaster before a subscription television broadcaster is free to proceed to acquire rights. However, in Foxtel Cable Television Pty Ltd v Nine Network Australia Pty Ltd 696 the Full Federal Court held that a free-to-air broadcaster cannot be regarded as having acquired the right to televise an event for the purposes of the condition unless it acquires the right to broadcast the event as soon as it happens or as soon as is technically feasible. 697 In reaching this decision, the court was influenced by the purpose of the anti-siphoning provisions, which is to protect the public’s interest in being part of the events as they occur, not by seeing a subsequent television record of them. If a commercial or national broadcaster acquires all the broadcast rights to a listed event, then a subscription television broadcaster must negotiate with the free-to-air broadcaster for the on-sale of subscription television rights. By contrast, if the body owning the rights to an event has sold only the free-to-air rights to a commercial or national broadcaster, the subscription broadcaster is free to acquire its own rights from the body separately. The events to which the condition relates are events, or events of a kind, which are listed by the Minister as those which should be televised free to the general public. 698 There are no specific criteria for what should go on the list other than the broad brush concepts of “national importance” and “cultural significance”. However, while the specific events on the list have changed over time, only major domestic and international sporting events have ever been included. The list includes events from a number of different sports, including the summer and winter Olympic Games, the Commonwealth Games, the Melbourne Cup, the Australian Football League Premiership competition, Rugby League, Rugby Union, cricket, soccer, netball, tennis, golf and motor racing. 699 In some cases, each event in the sport is listed; in 693

Free-to-air broadcasters are likely to argue that it is not commercially viable for them to acquire non-exclusive rights because the prospect of simultaneous coverage would fragment their audience.

694

The matter is discussed at length in Senate Standing Committee on Environment, Communications, Information Technology and the Arts Legislation Committee, Parliament of Australia, Inquiry into the Provisions of the Broadcasting Services (Anti-siphoning) Bill 2004, Ch 2.

695 696

Australian Broadcasting Authority, Guide to Pay TV Anti-Siphoning Provisions (1996). Foxtel Cable Television Pty Ltd v Nine Network Australia Pty Ltd (1997) 73 FCR 429; 143 ALR 516. For the judgment at first instance see Nine Network Australia Pty Ltd v Australian Broadcasting Authority (1997) 143 ALR 8. It has been noted that this statement is in apparent contradiction with s 115(1B), which contemplates that a broadcast might be delayed for up to seven days: M Warburton, “Anti-siphoning Provisions – Deal by Foxtel and Seven Not Quite Cricket” (1997) 1 TeleMedia 12 at 13.

697

698 699

BSA, s 115(1), (1A). Parliament can disallow the listing of events: s 115(3). Broadcasting Services (Events) Notice No 1 2010 (as amended).

914 [14.1230]

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other cases only selected events are listed. The list is constantly amended and the trend has been to remove events from the list. In many cases, only finals games remain on the list. There are three ways an event can be removed from the list. First, an event is automatically removed from the list one week after it finishes, unless the Minister publishes a declaration that the event remains on the list. 700 Secondly, the Minister has a general power to remove an event from the list, although this power is subject to Parliamentary disallowance. 701 The BSA envisages two circumstances in which the Minister might exercise this power. The first is where the free-to-air television broadcasters have had a real opportunity to acquire the rights to televise an event but have not done so within a reasonable time, 702 and the Minister is of the opinion that the event is likely to be televised to a greater extent if it is removed from the list. The second is where a commercial television broadcasting licensee has acquired the right to televise an event but has either failed to televise it, or has televised only an unreasonably small proportion, and the Minister is of the opinion that the event is likely to be televised to a greater extent if it is removed from the list. The Minister can therefore use the power of removal to prevent the anti-siphoning provision from being used to hoard events. The process for delisting an event involves a subscription television licensee making an application to the Minister and the ACMA providing advice to the Minister in relation to the application. The delisting process is tedious, time consuming and inefficient, since it obliges subscription television operators to monitor the sale and purchase of free-to-air broadcast rights and to undergo a cumbersome application process. This may limit the time available to subscription television broadcasters to schedule and promote an event and negotiate advertising contracts, assuming that it is successful in having an event delisted pursuant to this process. Thirdly, in order to alleviate some of the delays involved in the second procedure, events are now automatically delisted 12 weeks before their commencement unless the Minister has made a declaration to the contrary, which can be done only if the Minister is satisfied that at least one commercial free-to-air commercial or national broadcaster has not had a reasonable opportunity to acquire the right to televise the event concerned. 703 A reasonable opportunity might not have been accorded if the rights holder has strung out negotiations with the deliberate intention of bringing the automatic delisting into play. The effect of this provision is that subscription broadcasters are no longer required to produce a paper trail demonstrating that the free-to-air broadcasters have declined reasonable offers to support a request to the Minister to remove an event from the list. 704 However, subscription television broadcasters 700 701

BSA, s 115(1B). BSA, s 115(2).

702

What constitutes a “real opportunity to acquire” and a “reasonable time” is discussed in the ABA’s Guide to Pay TV Anti-Siphoning Provisions (1996). The ABA indicated that a “real opportunity to acquire” means that free-to-air broadcasters must have been given a genuine chance to acquire rights, not merely a nominal chance. It foreshadowed that in the context of live rights acquisitions, the issue of exclusivity may be an element of “real opportunity to acquire”, meaning that if the rights have not been offered on an exclusive basis it may be arguable that the free-to-air broadcasters have not had a real opportunity to acquire them.

703 704

BSA, s 115(1AA), (1AB). Explanatory Memorandum to the Broadcasting Legislation Amendment Bill (No 2) 2001 (Cth).

[14.1230] 915

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and sporting bodies regard the 12 week period as insufficient to allow them to negotiate a rights deal, determine broadcast schedules, arrange advertising contracts and promote the event. 705 They maintain that six months is a more realistic timeframe.

Anti-hoarding measures [14.1240] As explained in [14.1230], the current anti-siphoning rules are concerned only with the acquisition of rights to an event. They do not ensure that an event is actually broadcast by the rights holder. The anti-hoarding rules were inserted into the BSA in 1999 in an attempt to ensure that listed events are not hoarded by free-to-air rights holders. 706 The premise underlying the anti-hoarding regime is that “free-to-air broadcasters who have taken advantage of their privileged position under the anti-siphoning rules and acquired live rights to a designated event should be made to bear the responsibility of that acquisition by providing free-to-air coverage themselves or enabling another national broadcaster to televise those events”. 707 The anti-hoarding scheme obliges a commercial television broadcasting licensee which has acquired the right to televise live a designated event or series of events (such as a tournament), but does not intend to exercise the right, either in whole or in part, to offer the ABC and the SBS the right to televise live at nominal charge, that part of the event which it does not intend to televise live. Similarly, if the ABC or SBS have acquired rights to an event and do not intend to use them, they must offer their unused live rights to each other. 708 National broadcasters were chosen to be the recipients of the “must offer” obligation because they are less constrained than commercial broadcasters by advertising arrangements and related scheduling decisions. 709 However, it must be emphasised that neither the ABC nor the SBS are obliged to accept an offer. Not every event on the anti-siphoning list is subject to the anti-hoarding provisions, only those events or series of events which are designated by the Minister. 710 However, only two events have ever been placed on the list: the 2002 and 2006 FIFA World Cup Soccer tournaments. 711

705 706 707 708

709 710 711

Commonwealth Government, Department of Broadband, Communications and the Digital Economy, Sport on Television: a Review of the Anti-siphoning Scheme in the Contemporary Digital Environment (2010), p 33. The anti-hoarding rules were inserted by Broadcasting Services Amendment Act 1998 (Cth) and are located in Pt 10A of the BSA. Explanatory Memorandum to the Broadcasting Services Amendment Bill (No 1) 1999 (Cth), Regulation Impact Statement for Schedule 1, [22]. In recognition of the fact that it is common practice in the commercial broadcasting industry for rights to sporting events to be acquired by companies other than the licensee, the anti-hoarding rules also apply to persons who supply programs to commercial television broadcasting licensees. For an extensive definition of “program supplier” see s 146D. Explanatory Memorandum to the Broadcasting Services Amendment Bill 1998 (Cth), Regulation Impact Statement for Schedule 1, [23]. BSA, s 146C. In fact, the two regimes operate quite independently of each other. Broadcasting Services (Designated Series of Events) Declaration No 1 of 2000.

916 [14.1240]

Chapter 14 – Regulation of the Media

Reform of the anti-siphoning regime [14.1250] The government was under a statutory obligation to review the anti-siphoning regime before 31 December 2009. 712 That review was conducted and a report – Sport on Television: a Review of the Anti-siphoning Scheme in the Contemporary Digital Environment – was released in November 2010. 713 The report re-iterated that “(s)port is central in Australian society” and declared that “the objective of ensuring free public access to events of national importance and cultural significance remains a relevant public policy objective”. 714 However, it acknowledged dissatisfaction with certain aspects of the scheme and its impact on sectors of the industry and flagged the need for changes to be made. First, the report noted that concern over the breadth of the list was a common theme of the public submissions made to the review and agreed that the list should be revised to remove the “blanket listings” of sporting events that have not, and will not, be shown on free-to-air television. Since then, numerous individual games and tournaments have been removed from the list. Conversely, the report maintained that key events of national importance and cultural significance should be added to the list as they gain popularity. Secondly, the report noted the legitimate concerns that free-to-air broadcasters, who are given preferential treatment in the acquisition of broadcast rights to listed events, are under no compulsion to cover the events to which they have acquired rights and frequently do not do so. The ACMA’s monitoring confirmed that coverage was patchy and varied between sports, jurisdictions and time zones. 715 Many submissions to the review argued that free-to-air broadcasters should be obliged to broadcast listed events live, in full and nationally. The review conceded that coverage of anti-siphoning listed events falls short of public expectations and considered that there were strong grounds for the introduction of mandatory coverage requirements to ensure an adequate level of coverage. 716 The report concluded that broadcasters should be required to meet coverage obligations for events over which they have acquired rights, or be required to offer those rights to other broadcasters. However, the government rejected as inappropriate the suggestion that there should be a blanket requirement that all listed events be broadcast live across the nation because of the complications that implementing this suggestion would involve including: the need for broadcasters to schedule programs in multiple time zones across the country; the fact that the popularity of various sports can differ markedly between jurisdictions; sports organisations often prefer delayed coverage to protect ground attendance and may not even 712

BSA, s 115A (now repealed).

713

The report followed a position paper: Sport on Television: Reform of the Anti-Siphoning Scheme in the Contemporary Digital Environment (2009) which sought public comment on matters concerning the anti-siphoning regime. Over 330 public submissions were received from stakeholders and interested members of the public.

714

Commonwealth Government, Department of Broadband, Communications and the Digital Economy, Sport on Television: a Review of the Anti-siphoning Scheme in the Contemporary Digital Environment (2010), p 36. Commonwealth Government, Department of Broadband, Communications and the Digital Economy, Sport on Television: a Review of the Anti-siphoning Scheme in the Contemporary Digital Environment (2010), p 19. Commonwealth Government, Department of Broadband, Communications and the Digital Economy, Sport on Television: a Review of the Anti-siphoning Scheme in the Contemporary Digital Environment (2010), p 36.

715 716

[14.1250] 917

Australian Media Law

sell the right to fully cover an entire event; and it is not physically possible to broadcast every match of a tournament such as the Australian Open tennis both in terms of there not being enough hours in the day to do so and the fact that games are played simultaneously. However, such a requirement should be imposed in relation to “events that are ‘nationally iconic’ and for which there is a strong tradition and expectation of live coverage”. 717 Thirdly, the report noted that there is “a clear expectation among members of the public and sectors of the industry that if a free-to-air broadcaster acquires a right to an anti-siphoning listed event but does not intend to use it, other broadcasters should be provided with an opportunity to do so” and concluded that the anti-hoarding rules should be strengthened and enhanced. 718 Fourthly, the report maintained that the prohibition on free-to-air broadcasters premiering listed events on their digital multi-channels no longer has the same rationale as it did a few years ago. It concluded that nationally iconic events, such as the Melbourne Cup and domestic football grand finals, should continue to be shown on the primary channels first until digital television switchover is completed but other listed events should be able to be premiered on digital multi-channels. 719 Finally, the report noted the potential for new media, such as IPTV, to subvert the effective operation of the anti-siphoning scheme. While at present the sports coverage on these services is supplementary to television, making it unlikely that sporting content will migrate exclusively to these new platforms in the short term, the report noted that the rapid pace of technological convergence means that the delivery of robust high quality audio-visual services over the internet is becoming increasingly feasible. 720 This observation has proven to be correct. Full details of the government’s reform model were outlined in a Media Release issued by the Minister for Broadband, Communications and the Digital Economy on 25 November 2010. The main changes envisaged by the government were: • Changes to the events on the list, namely, the addition of certain Twenty20 cricket matches and FIFA World Cup qualifying matches involving Australia, the deletion of some AFL and NRL games that were already being shown only on subscription television and the removal of a number of less popular overseas events.

717

Commonwealth Government, Department of Broadband, Communications and the Digital Economy, Sport on Television: a Review of the Anti-siphoning Scheme in the Contemporary Digital Environment (2010), p 36.

718

Commonwealth Government, Department of Broadband, Communications and the Digital Economy, Sport on Television: a Review of the Anti-siphoning Scheme in the Contemporary Digital Environment (2010), pp 36-37. Commonwealth Government, Department of Broadband, Communications and the Digital Economy, Sport on Television: a Review of the Anti-siphoning Scheme in the Contemporary Digital Environment (2010), p 37. Commonwealth Government, Department of Broadband, Communications and the Digital Economy, Sport on Television: a Review of the Anti-siphoning Scheme in the Contemporary Digital Environment (2010), pp 31-32.

719 720

918 [14.1250]

Chapter 14 – Regulation of the Media

• The introduction of a two tiered anti-siphoning list. Tier A would consist of nationally iconic events which free-to-air broadcasters must broadcast live and in-full across the country on their primary service. 721 Tier B would comprise regionally iconic and nationally significant events which free-to-air broadcasters would be permitted to televise on their digital multi-channels, thereby increasing their ability to show more live sport on free-to-air television. Events on tier B must be shown in full with a maximum delay of four hours, which would allow broadcasters to accommodate audience preferences and negotiate time zone issues. • Free-to-air broadcasters who do not meet the relevant coverage requirements would be required to offer the rights to other free-to-air broadcasters in the first instance and then to subscription television broadcasters or face a fine. • The automatic de-listing period would be extended to 26 weeks for all events except seasonal tournaments with complex fixtures systems, where a 52 week delisting period would apply. 722 • Online service providers such as IPTV would be prevented from acquiring exclusive access to listed events, but could purchase supplementary or non-exclusive rights. The implementation of these reforms required legislative amendment to the BSA and significant alterations to the anti-siphoning list. While the anti-siphoning list has been updated continuously since 2010, the Broadcasting Services Amendment (Anti-siphoning) Bill 2012, which was introduced into Parliament in 2012 and again in 2013, lapsed in November 2013 and has not been re-introduced. However, the fact that a plethora of games and tournaments have been removed from the list since 2012 has significantly reduced the problems outlined in [14.1250].

Regulation of datacasting What is datacasting? What are datacasting services? [14.1260] Datacasting has been described as a form of “computer based television”. 723 It is like television in that it is viewed on a television screen, although the genre restrictions outlined below deliberately and severely limit its potential to provide “television like” content. It is “computer based” in that it is an interactive and internet style of communications technology. At the time, it was described as a more attractive proposition than the more limited, personal style of communication that exists in alternatives to broadcasting such as computer-based

721 722 723

Senator the Hon Stephen Conroy, Anti-siphoning Scheme – Fact Sheet. Senator the Hon Stephen Conroy, Anti-siphoning Scheme – Fact Sheet. M Leiboff, “The Law of Genre: Datacasting and the Broadcasting Services Act 1992 (Cth)” (2000) 5(4) Media and Arts Law Review 243.

[14.1260] 919

Australian Media Law

webcasting, 724 since it has a superior digital signal, better scope for interactivity, and a higher quality of picture. 725 However, this is probably no longer the case. At the technical level, there is no real distinction between digital television and datacasting. Datacasting is simply “an augmentation of the traditional broadcast licence” which “makes use of the inherent capabilities of digital broadcasting technology”. 726 This is evident in the definition of a datacasting service in the BSA, which is wide enough to cover any content that might conceivably be included in a digital television transmission. 727 A datacasting service is defined in s 6 as “a service that delivers content whether in the form of text, data, speech, music or other sounds, visual images (animated or otherwise) or in any other form or combination of forms using the broadcasting services bands to persons having equipment appropriate for receiving that content”. Despite its broad definition, datacasting in Australia has acquired a different and more specialised meaning, one that is artificially constructed. Datacasting is actually a new category of service that was introduced into the BSA in conjunction with the commencement of digital television. 728 Although wide enough to encompass radio and television programs, a datacasting service provided in accordance with a datacasting licence under the BSA is taken not to be a broadcasting service, a television service or a radio service. 729 In fact, datacasting services are regulated separately from broadcasting services and their content is legislatively restrained in order to prevent them from becoming de facto commercial television and radio services. The catalyst for the introduction of datacasting services was the advent of digital television and the regulatory regime can only be understood against the background of the conversion to digital transmission. During the simulcast period, most licence areas had two unassigned digital channels in the broadcasting services bands that were not required for digital conversion, and when planning for the introduction of digital television, the government decided to reserve these channels for new and innovative services that did not resemble commercial television services. These services were designated as datacasting services and were to be provided under datacasting transmitter licences, which were to be allocated on a competitive basis under the Radiocommunications Act 1992 (Cth). Commercial and national television broadcasters are not permitted to hold a datacasting transmitter licence, but are permitted to provide datacasting services on their digital spectrum that is not taken up with

724 725

726 727 728 729

Leiboff (2000) 5(4) Media and Arts Law Review 243 at 244. Leiboff (2000) 5(4) Media and Arts Law Review 243 at 244. In order to enjoy the interactive aspect of datacasting the consumer would need to be connected to the datacasting network, presumably via the telephone. C Morton, “Datacasting in Australia” (Paper delivered to the Australian Broadcasting Summit, February 2003). G Tanner, “Digital Action, Licence A and Licence B” (Speech given at Network Insight Conference, 14 March 2007). See Broadcasting Services Amendment (Digital Television and Datacasting) Act 2000 (Cth). BSA, Sch 6 cl 6.

920 [14.1260]

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broadcasting without having to obtain a datacasting transmitter licence. 730 However, a commercial television broadcasting licensee that uses its transmitter to provide a datacasting service that is authorised by a datacasting licence under Sch 6 of the BSA must pay a charge for using the spectrum to provide such a service. 731 The advent of digital radio also created additional spectrum, and a sub-set of datacasting services, called “restricted datacasting services”, was introduced. Commercial radio broadcasting licensees are not permitted to control a restricted datacasting licence during the digital radio moratorium period. Schedule 6 of the BSA regulates the provision of datacasting services and is discussed in [14.1270]-[14.1340].

Datacasting: The regulatory regime Datacasting licences and datacasting transmitter licences [14.1270] As explained in [14.280], as a result of digital technology’s efficient use of spectrum, a digital dividend of spectrum became available following analog television switchoff. The government determined that this “digital dividend” would be used for a variety of new services, primarily mobile telephony and broadband services. The spectrum was auctioned in April 2013, ahead of analog switch off. Following switchover, a contiguous block of spectrum in the 700MHz band had to be cleared of all existing television services, which were moved (or “restacked”) to their final channels. In the expectation that this process would not be complete until 31 December 2014, the licences issued to successful bidders at the auction of spectrum in the 700MHz band were not scheduled to commence until 1 January 2015. 732 However, the ACMA notified potential bidders for the auctioned spectrum that in the event that a television broadcaster vacated spectrum in the 700MHz band before the commencement of a successful bidder’s licence period, it would consider applications for interim licences on a case-by-case basis. 733 However, if this occurred, the holders of these interim licences might be subject to regulation under Sch 6 as datacasting services, because at that stage, the spectrum authorised by the licence remained in the broadcasting services

730

731 732 733

Radiocommunications Act 1992 (Cth), s 100A and s 102(3), (5) respectively provide for the NBS transmitter licences which authorise the national broadcasters to provide television broadcasting services and for the transmitter licences that are granted to (inter alia) commercial television broadcasters as a result of holding a commercial television broadcasting licence to be used to provide designated datacasting services in digital mode. The charge is imposed by the Datacasting Charge (Imposition) Act 1998 (Cth). Optus and Telstra were the successful bidders. ACMA, Digital Dividend Auction: Auction Guide, Melbourne, April 2013 as cited in Dr R Jolly , Department of Parliamentary Services (Cth), Bills Digest, No 79 of 2012-13, 27 February 2013.

[14.1270] 921

Australian Media Law

bands. 734 If so, they would need to obtain a datacasting licence and would be subject to licence conditions, program standards, codes of practice and suitability requirements. 735 To avoid this result, the BSA was amended by the Broadcasting Amendment (Digital Dividend) Act 2013 (Cth) to limit the circumstances under which a person needs to hold a datacasting licence under Sch 6. 736 The upshot is that only “designated datacasting services” – defined as datacasting services provided by a commercial television or radio broadcasting licensee or a national broadcaster or a service of a kind specified by the Minister – are now required to be licenced. 737 Datacasting services that fall outside this definition – including telecommunications services in spectrum identified as the digital dividend while that spectrum is still part of the broadcasting services bands 738 – are not required to hold a datacasting licence. Moreover, the datacasting regime will not apply to any services using “digital dividend” spectrum once the Minister removes the declared parts of the 700MHz band from the broadcasting services bands. Datacasting licences that authorise the provision of a datacasting service are issued by the ACMA on written application. 739 A datacasting licence cannot be allocated to an applicant unless the applicant is a qualified entity, namely: a company that is registered under Pt 2A.2 of the Corporations Act 2001 (Cth) and has a share capital; the Commonwealth, a State or a Territory; the ABC; the SBS; or any other body corporate established for a public purpose under Australian law. 740 Moreover, a licence cannot be allocated if the ACMA decides that the applicant is unsuitable. 741 The ACMA must maintain a public register of datacasting licences and a separate public register of restricted datacasting licences. 742 As well as holding a datacasting content licence that authorises the provision of the service, a person who wants to provide a datacasting service must also hold a datacasting transmitter licence under the Radiocommunications Act 1992 (Cth) which authorises the use of a radiocommunications transmitter for transmitting the datacasting service. 743 Transmitters 734 735 736 737

ACMA, Digital Dividend Auction: Auction Guide, Melbourne, April 2013 as cited in Dr R Jolly , Department of Parliamentary Services (Cth), Bills Digest, No 79 of 2012-13, 27 February 2013. ACMA, Digital Dividend Auction: Auction Guide, Melbourne, April 2013 as cited in Dr R Jolly , Department of Parliamentary Services (Cth), Bills Digest, No 79 of 2012-13, 27 February 2013. Consequential amendments were also made to the Radiocommunications Act 1992 (Cth). BSA, Sch 6 cl 2A.

738

These amendments did not affect “the existing regulation that applies to datacasting services currently provided by the commercial broadcasters such as the Seven Network’s 4ME, WIN Television’s GOLD, the Nine Network’s Extra and Network Ten’s Television Shopping Network”: Commonwealth, Parliamentary Debates, House of Representatives, 13 February 2013, p 1113 (Mr Albanese).

739 740

BSA, Sch 6 cll 7 – 12A. BSA, Sch 6 cll 2, 8(1).

741

The suitability requirements are identical to those that apply to broadcasters: see [14.700]. The ACMA can refuse to allocate a datacasting licence to an applicant if a datacasting licence held by the applicant or a related body corporate was cancelled at any time during the previous 12 months: cl 8(2).

742

BSA, Sch 6 cll 12, 12A.

743

In certain circumstances, the ACMA can make “nominated datacaster declarations” that allow a datacasting service licence and a datacasting transmitter licence to be held by different persons: BSA, Sch 6 Pt 7. The ACMA must maintain a register of nominated datacaster declarations.

922 [14.1270]

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authorised under datacasting licences must operate in the broadcasting services bands. As explained in [14.1260], commercial television broadcasters and national broadcasters are an exception. They need not hold a datacasting transmitter licence; 744 in fact, they are not generally permitted to do so. 745 Moreover, restricted datacasting services can be provided only on digital radio multiplex transmitters, which are allocated and regulated separately from datacasting transmitter licences.

Datacasting content Prohibited content [14.1280] Datacasting services, although widely defined in s 6 of the BSA, are subject to extensive content restrictions which are imposed in the form of licence conditions. These restrictions prohibit the provision of certain genres of television programs and curb audio content. The BSA justifies the content restrictions in positive terms, stating that they are designed to encourage datacasting licensees to provide a range of innovative services that are different to traditional television broadcasting services. However, it has been asserted that the restrictions are simply artificial devices designed to stifle the place of datacasting in the new converged media environment in order to “curtail the ability of datacasters to provide an effective alternative to free-to-air commercial television” thereby preserving the domain of the national and commercial television broadcasters. 746 Each datacasting licence is subject to the condition that the licensee will not transmit matter that, if it were broadcast on a commercial television broadcasting service, would be a Category A or a Category B television program. 747 These are referred as the “genre conditions”. A Category A television program is defined to encompass most entertainment program types that are currently shown on television, namely: a drama program, a sports program, a music program, an infotainment or lifestyle program, a documentary program, a reality television program, a children’s entertainment program, a light entertainment or variety program, a compilation program, a quiz or games program, or a comedy program. 748 Information-only programs and educational programs are specifically excluded from the

744

Radiocommunications Act 1992 (Cth), ss 100A, 102(3), (5).

745

BSA, s 54A, Sch 6 cl 41. This prohibition does not apply to a Channel B datacasting transmitter licence unless the relevant transmitter(s) is operated for transmitting a datacasting service that is capable of being received by a domestic digital television receiver: BSA, s 51A, Sch 6 cl 41(3). Commercial television broadcasters can provide datacasting services pursuant to transmitter licences issued to them under s 102B of the Radiocommunications Act 1992. Section 100A of the Radiocommunications Act 1992 deals with transmitter licences for datacasting services transmitted by national broadcasters. Leiboff (2000) 5(4) Media and Arts Law Review 243 at 244. More cynically, datacasting has been defined as “anything that was boring to ensure that anything that was interesting or entertaining continued to appear only on free-to-air television”: Jolly, Going Digital: Tracing the Transition to Digital Terrestrial Television in Australia (Research Paper No 7, Parliamentary Library, Parliament of Australia, 2010-11), p 19, citing journalist Alan Kohler. BSA, Sch 6 cll 13 – 16.

746

747 748

Datacasters are permitted to show short, self-contained extracts from Category A television programs under certain conditions.

[14.1280] 923

Australian Media Law

definition and can therefore be provided under a datacasting licence. 749 A Category B television program is a news or current affairs program, a financial, market or business information bulletin, a weather bulletin, or a bulletin or program that consists of a combination of any of the above bulletins or programs. These programs are prohibited 750 unless the program is an information-only program, an educational program, or a foreign-language news and current affairs program. 751 A licensee can also transmit a Category B bulletin or program of any length provided it is not presenter-based, 752 can only be accessed by an end-user who makes a selection from a menu on the screen and consists of either a single item of news (including sports news), a single topic of financial, market or business information, a compilation of items on the same or a directly related subject which is no longer than 10 minutes, or a weather bulletin or program. Each datacasting content licence is subject to an “audio content condition” which prohibits the licensee from transmitting matter that, if it were broadcast on a commercial radio broadcasting service, would be a designated radio program, which is defined as a radio program other than an information-only program, and an educational program or a foreign-language news or current affairs program. 753 Restricted datacasting licences are subject to the same restrictions and are also not permitted to provide datacasting content in a form specified by the Minister in a legislative instrument. 754 These conditions have been criticised both in principle and in practice. 755 In principle, it has been argued that the exclusion of entertainment from the mix of datacasting content makes datacasting technology unattractive to potential new entrants, with the result that datacasting will eventually be consigned to being used as an adjunct to enhance existing free-to-air television. 756 In practice, the genre restrictions have been criticised on the basis that the various categories of Category A programs are pliable and the subject of constant variation over time, thus making it a question of interpretation as to where the boundary lines of the law will fall. 757 However, the ACMA is empowered to make a determination that a specified program or matter is or is not a Category A or B program, or that a specified radio 749

They are defined in BSA, Sch 6 cll 3 and 4.

750

Short extracts of Category B bulletins or programs can be broadcast under certain conditions.

751 752

They are defined in BSA, Sch 6 cll 3, 4 and 5. A presenter-based bulletin or program is one which consists of, or includes, a combination of introductory and/or closing segments, spoken by a host or an anchor presenter who is visible on the screen, and video images (whether or not with accompanying sound): BSA, Sch 6 cl 16(4).

753

BSA, Sch 6 cll 21 – 23A. This audio content condition does not apply to the transmission of audio content that is incidental to, or provided as background to, matter displayed on the screen. BSA, Sch 6, cl 24A(b).

754 755

See, for example, Productivity Commission, Inquiry into Broadcasting (2000), Ch 7. Some of the adverse reactions to the datacasting legislation are contained in: Senate Environment, Communications, Information Technology and the Arts Legislation Committee, Parliament of Australia, Report into the Broadcasting Services Amendment (Digital Television and Datacasting) Bill 2000.

756 757

Leiboff (2000) 5(4) Media and Arts Law Review 243 at 244, 247. Leiboff (2000) 5(4) Media and Arts Law Review 243 at 254.

924 [14.1280]

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program or matter is or is not a designated radio program, thus giving it scope to clarify the boundaries and inject some certainty into the regime. 758

Permissible content [14.1290] Datacasting licensees are free to provide information-only programs, educational programs, and foreign-language news and current affairs programs, since these are specifically excluded from Category A and B programs. An information only program is matter the sole or dominant purpose of which is to provide factual information or directly-related comment about any of a wide range of matters, 759 or which enables people to carry out transactions, 760 where there is not a significant emphasis on dramatic impact or entertainment. 761 An educational program is matter whose sole or dominant purpose is to assist a person in education or learning, whether or not in connection with a course of study or instruction. 762 Seven other program types are specifically excluded from the genre and/or audio content conditions and can be transmitted by a datacasting licensee. 763 They are: 1.

live matter that consists of the proceedings of a Parliament, a court, an official inquiry or Royal Commission in Australia or a hearing conducted by a body established for a public purpose by a Commonwealth, State or Territory law;

2.

matter that consists of text or still visual images, whether or not accompanied by associated sounds (this would allow internet websites);

3.

advertising or sponsorship material;

4.

interactive computer games;

5.

internet carriage services (other than a declared internet carriage service);

6.

ordinary email; and

7.

matter that has been copied from the internet, provided the content is selected by the datacasting licensee and there is in force an ACMA exemption order in relation to the transmission of the matter. 764

758

BSA, Sch 6 cll 13(4), (5); 15(4), (5); 21(4), (5).

759

The matters to which the program can relate include: products (including real property); services; community activities; domestic or household matters (such as home shopping); private recreational pursuits or hobbies; legal rights, obligations or responsibilities; first aid, health or safety matters; emergencies or natural disasters; rural matters; travel matters; or crime prevention matters: BSA, Sch 6 cl 4(1)(a).

760

Transactions include commercial, banking, or insurance transactions; a dealing about employment matters; or a dealing with governments and government authorities: BSA, Sch 6 cl 4(8).

761

BSA, Sch 6 cl 4.

762 763

BSA, Sch 6 cl 3. BSA, Sch 6 cll 17 – 20AA, 22 – 23A.

764

BSA, Sch 6 cl 27A. The ACMA may make an exemption order in relation to content that is copied from the internet which a datacasting licensee proposes to select and transmit and which would otherwise breach the genre or audio content condition, provided the breach would be of a minor, infrequent or incidental nature and the transmission of the matter would not be contrary to the purpose of the genre or audio content conditions.

[14.1290] 925

Australian Media Law

Datacasting conditions [14.1300] Datacasting licensees are subject to numerous conditions, including: • the genre and audio content conditions; • the standard licence conditions that are imposed on broadcasting services by Sch 2 of the BSA, with appropriate modifications; 765 • specific licence conditions, many of which are similar to those imposed on broadcasters. 766 They include: the prohibition on tobacco advertising; compliance with technical standards pertaining to digital transmission; a prohibition on using the datacasting service in the commission of an offence; not transmitting datacasting content that has been classified as RC or X18+; not transmitting datacasting content that has been classified R unless the content has been modified so that it is suitable to be transmitted or access to the program is subject to a restricted access system; 767 • that the licensee will remain suitable; 768 • restricted datacasting licensees are subject to a specific set of conditions, including that they provide their datacasting content using a digital modulation technique. 769 Further conditions can be imposed by the ACMA in similar circumstances to those under which it may impose additional conditions on broadcasters. 770 Conditions are also imposed on datacasting transmitter licences. 771

Codes of practice and standards [14.1310] Parliament intends that an industry group be formed to represent datacasting licensees and that this industry group will develop codes of practice to govern aspects of the datacasting operations of datacasting licensees. 772 The matters to which the code may relate are similar to the matters to which a broadcasting code of practice can relate and include issues such as community standards, protecting children from harmful material, promoting fairness and accuracy in news and current affairs, advertising and sponsorship matter, and complaints handling. 773 If no code of practice has been registered for a particular matter, or if a registered code is not operating to provide appropriate community safeguards, the ACMA 765

766

BSA, Sch 6 cl 24(1)(a). These relate to the broadcast of political and electoral matter and advertisements relating to therapeutic goods: see [14.720]. These conditions do not apply to datacasting services in so far as they consist of an internet carriage service or the transmission of ordinary email: BSA, Sch 6 cl 24(4), (5). BSA, Sch 6 cl 24(1)(b) – (h).

767

The conditions pertaining to compliance with program standards, and the transmission of datacasting content classified as RC or X 18+ or R do not apply in relation to the transmission of so much of a datacasting service as consists of an internet carriage service or the transmission of ordinary email. The condition pertaining to tobacco advertising does not apply in relation to the transmission of ordinary email.

768 769

BSA, Sch 6 cl 25. BSA, Sch 6, cl 24A.

770 771

BSA, Sch 6 cl 26. See [14.810]. Radiocommunications Act 1992 (Cth), s 109A.

772 773

BSA, Sch 6 cl 28(1). The matters are listed in BSA, Sch 6 cl 28(2).

926 [14.1300]

Chapter 14 – Regulation of the Media

can determine a program standard in relation to that matter. 774 A program standard can be varied or revoked by the ACMA or disallowed by Parliament. 775

Remedies for breach of the licensing provisions [14.1320] Part 8 of Sch 6 provides for remedies for breaches of the licensing provisions. They relate to matters such as the provision of a designated datacasting service without a datacasting licence 776 and intentionally engaging in conduct that breaches the genre and audio content conditions and the standard and specific conditions. 777 The ACMA possesses similar powers in relation to designated datacasters who provide unlicensed services or who breach licence conditions as it does in relation to broadcasters. They include: prosecution for an offence, the imposition of civil penalties, the issuing of remedial directions, suspension or cancellation of the datacasting licence and the right to seek injunctions from the Federal Court.

Datacasting: the experience to date The unsuccessful auctions in 2001 [14.1330] Datacasting has been largely unsuccessful. Auctions of spectrum for use for datacasting planned for 2001 had to be cancelled due to a lack of interest. In a report presented to Parliament in December 2002, the government conceded that commercially viable strategies to provide datacasting services that are independent of a traditional television business were virtually non-existent. 778 A number of options to widen the range of services able to be provided by datacasters were considered in the report, but the government was unwilling to implement them, as they could not be adopted without effectively breaching the statutory moratorium on the provision of new commercial television broadcasting services that was in place at the time. Owing to continued depressed interest in establishing datacasting businesses, the government decided not to proceed with the long-term allocation of datacasting transmitter licences at that stage. In the meantime, the spectrum was used for 774

Standards are dealt with in BSA Sch 6 cll 31 – 34.

775

The provisions relating to codes of practice and standards do not apply to datacasting services that consist of an internet carriage service, or to the transmission of ordinary email, or to datacasting services provided by the ABC or the SBS: BSA, Sch 6 cll 35, 35A. The ABC or SBS must develop their own codes of practice for their datacasting services: Australian Broadcasting Corporation Act 1983, s 8(1)(e); Special Broadcasting Service Act 1991, s 10(1)(j). BSA, Sch 6 cl 49. The prohibition does not apply to the provision of a broadcasting service in accordance with the conditions of a broadcasting licence, or to a class licence, or to the provision of a national broadcasting service: Sch 6 cl 51. Designated teletext services, which are teletext services that were already being provided by commercial television broadcasters before the commencement of Sch 6, can continue to be provided without a datacasting licence: Sch 6 cl 51A.

776

777 778

BSA, Sch 6 cl 52. Commonwealth Government, Department of Communications, Information Technology and the Arts, Report on Review of the Operation of Schedule 6 of the Broadcasting Services Act 1992 (Datacasting Services) (December 2002).

[14.1330] 927

Australian Media Law

datacasting trials in the Sydney area by a broadcast infrastructure company called Broadcasting Australia. 779 The trial involved a number of services, collectively known as Digital Forty Four. 780

Channels A and B [14.1340] On 12 September 2006, the Minister announced that the government would make the two unassigned channels of datacasting spectrum available for new and innovative nation-wide digital television services. 781 These services would be allocated as datacasting transmitter licences and were designated as Channels A and B. 782 The Minister’s announcement was subsequently implemented through amendments to the Radiocommunications Act 1992 (Cth). 783 Prior to these amendments, the only services that could be provided using a datacasting transmitter licence were the very restricted services permitted under a datacasting service licence described in [14.1280]-[14.1290]. 784 The 2006 amendments to the media landscape altered the arrangements for datacasting. The types of services that can be provided by a datacasting transmitter licence are still restricted, but would have been wider than datacasting content services. The permitted and restricted uses are imposed as datacasting transmitter licence conditions under s 109A of the Radiocommunications Act 1992. Separate conditions are imposed regarding the types of services that can be provided under a Channel A or Channel B datacasting transmitter licence. 785 Channel A was conceived as a new digital only free-to-air service to domestic digital television receivers. 786 It was envisaged that the only types of services that could be offered on Channel A were datacasting content services provided in accordance with the conditions of a BSA datacasting content licence, open narrowcasting television services 787 and community television broadcasting services. 788 Commercial television and national broadcasters are not allowed to control the Channel A datacasting licence, since they already have access to digital spectrum to provide datacasting services and multi-channelled services. 779 780 781 782 783 784 785 786 787

788

Jolly, Going Digital: Tracing the Transition to Digital Terrestrial Television in Australia (Research Paper No 7, Parliamentary Library, Parliament of Australia, 2010-11), p 43. The services that were trialled are described in Jolly, Going Digital: Tracing the Transition to Digital Terrestrial Television in Australia (Research Paper No 7, Parliamentary Library, Parliament of Australia, 2010-11), p 43. Senator Helen Coonan, “New Digital Television Services for Australians” (Media Release 86/2006, 12 September 2006). Radiocommunications Act 1992 (Cth), ss 98A, 98B. The amendments were made by the Broadcasting Legislation Amendment (Digital Television) Act 2006 (Cth). Radiocommunications Act 1992, s 109A(1)(h) (now repealed). Radiocommunications Act 1992, s 109A(ia) (regarding Channel A); Radiocommunications Act 1992, s 109A(1)(ib) – (ie) (regarding Channel B). A “domestic digital television receiver” is defined in Radiocommunications Act 1992, s 5 to mean reception equipment that is not hand held and that can receive television programs in digital mode. Examples include religious, ethnic or home shopping services: Commonwealth Government, Department of Communications, Information Technology and the Arts, Meeting the Digital Challenge: Reforming Australia’s Media in the Digital Age (March 2006), p 21. This explains why the ACMA issued guidelines for open television narrowcasting services. See [14.120]. Radiocommunications Act 1992, s 109A(1)(ia).

928 [14.1340]

Chapter 14 – Regulation of the Media

It was envisaged that the permissible content for Channel B would vary according to whether it is capable of being received by a domestic digital television receiver. Channel B can provide datacasting services under a BSA datacasting licence or another licence allocated by the ACMA authorising provision of that service, 789 or a service provided in accordance with a class licence under the BSA. It is not permitted to provide commercial broadcasting services, subscription television broadcasting services that are capable of being received by a domestic digital television receiver, services provided by commercial television broadcasting licensees or national broadcasters to domestic digital television receivers or re-transmissions of an existing commercial or national television broadcasting service to domestic digital television receivers. However, it is not prohibited from re-transmitting commercial television services to a mobile handheld device in the relevant licence area. 790 The most likely service envisaged for Channel B are “out of home television services”, which essentially means the delivery of television content to a handheld mobile television device, probably on a subscription basis and probably integrated with 3G mobile phone services. Commercial and national television broadcasters are permitted to control Channel B provided it is not used to provide in-home services to domestic digital television receivers. It was intended that licences for both channels would be allocated as separate national licences by way of a price based allocation process in the latter half of 2007. 791 However, they had not been allocated by the change of government in 2007, and the new government subsequently announced that it would not proceed with the auction process in the near future. In the meantime, the government made two decisions regarding these unassigned channels that changed the datacasting landscape yet again. First, in November 2009 the government announced that the Channel A spectrum would be loaned to community television until analog switch-off at the end of 2013 as a means of providing community broadcasters with a pathway to digital transmission. 792 This decision signalled the end of the Sydney datacasting trials on 30 April 2010. 793 Second, in January 2010 the Department of Broadband, Communications and the Digital Economy released a Digital Dividend Green Paper, which anticipated that following analog switch off, Channel B might be packaged as part of the digital dividend target and Channel A might be made available for broadcasting services. However, as noted by the ACMA:

789 790 791

792 793

This effectively means a subscription television broadcasting licence: G Tanner, “Digital Action, Licence A and Licence B” (Speech, Network Insight Conference, 14 March 2007). Australian Communications and Media Authority, Allocation of Spectrum for New Digital Television Services (2006), pp 1, 3. As explained earlier, Licences A and B are datacasting transmitter licences issued under the Radiocommunications Act 1992, not broadcasting services licences. However, depending on the type of service being provided, a broadcasting services licence may also be required. See [14.390]. Australian Communications and Media Authority, “Sydney Datacasting Trial to End” (Media Release 16/2010, 29 January 2010). Once it became clear that there was no likelihood of long-term datacasting licences being auctioned in the near future, there was no rationale for continuing the datacasting trials, as the trials had been extended in order to allow Broadcasting Australia to bid for a long-term licence.

[14.1340] 929

Australian Media Law While broadcasting services could include datacasting services, the price-based allocation of long-term datacasting transmitter licences is not one of the purposes outlined in the Green Paper for the future of this digital channel. 794

It would seem that the price-based allocation of long term datacasting licences is an unlikely prospect due to the lack of market demand. For similar reasons, no restricted datacasting licences have been issued. However, each commercial television network now has a datacasting channel. Most are advertorial channels and broadcast primarily infomercials, along with home shopping, educational, health, religious and community programming. 795

The Australian Communications and Media Authority [14.1350] The ACMA is charged with responsibility under the BSA for monitoring the broadcasting, datacasting, internet and commercial content service industries. 796 To that end, it has a range of functions and powers that are to be used in a manner that will produce stable and predictable regulatory arrangements and that will deal effectively with breaches of the rules established by the BSA. 797 Where it is necessary for the ACMA to use any of its powers to deal with a breach of the Act or the regulations, the ACMA must use these powers in a manner that is commensurate with the seriousness of the breach. 798

Establishment, membership and staffing [14.1360] The ACMA is established under the Australian Communications and Media Authority Act 2005 (Cth) (ACMA Act). 799 It consists of a Chair, a Deputy Chair and between one and seven other members, all of whom are appointed by the Governor-General. Associate members may be appointed by the Minister for a specific inquiry, investigation or hearing or a matter that relates to the performance of the ACMA’s functions or the exercise of its powers. In addition to its members, the ACMA has staff who are engaged under the Public Service Act 1999 (Cth). 800

794

Australian Communications and Media Authority, “Sydney Datacasting Trial to End” (Media Release 16/2010, 29 January 2010).

795

They are: TV4ME a digital advertorial datacasting service that launched in regional areas in September 2011 and in metropolitan areas on December 2011 as part of the Seven Network/Prime Network; Extra, a datacasting channel launched by the Nine Network in March 2012, Gold, a datacasting channel launched in May 2012 by WIN Corporation; Gold 2, a second datacasting channel of WIN Corporation which commenced in July 2013; and TVSN, a datacasting channel of the Network Ten which commenced in September 2012. BSA, s 5(1)(a). The ACMA is also responsible for regulating the telecommunications industry and for managing the radiofrequency spectrum but these responsibilities are not discussed.

796 797 798 799

BSA, s 5(1)(b). BSA, s 5(2). The establishment, constitution and membership of the ACMA are dealt with in the ACMA Act, ss 6, 19 – 35.

800

ACMA Act, s 54.

930 [14.1350]

Chapter 14 – Regulation of the Media

Functions [14.1370] The ACMA has functions in relation to telecommunications, spectrum management, broadcasting, internet content and datacasting. 801 In respect of broadcasting, internet content and datacasting, the functions divide into the following categories. 802 First, the ACMA must plan the availability of segments of the broadcasting services bands on an area basis. 803 The ACMA also has numerous licensing functions. They include: to allocate, renew, suspend and cancel licences and take other enforcement action under the BSA; to conduct investigations or hearings into the allocation of licences for community broadcasting services; to design and administer price-based systems for the allocation of commercial broadcasting licences; and to collect any fees payable in respect of licences. In relation to program regulation, the functions of the ACMA are to assist broadcasting and datacasting service providers to develop codes of practice that are in accordance with community standards and to monitor compliance with those codes of practice and to develop and monitor compliance with program standards relating to broadcasting in Australia. The ACMA has similar functions in respect of the internet. 804 The ACMA must also monitor and investigate complaints concerning broadcasting and datacasting services (including those provided by the national broadcasters), and must conduct investigations as directed by the Minister under s 171 of the BSA. 805 Finally, the ACMA has monitoring and research responsibilities. In particular, it must conduct or commission research into community attitudes on issues relating to programs and datacasting content, inform itself and advise the Minister in relation to the broadcasting, internet and datacasting industries and on technological advances and service trends in those industries, and monitor and report to the Minister on the operation of a number of Acts, including the BSA. The ACMA also has research functions in respect of the internet 806 and is required to liaise with international bodies to develop co-operative arrangements for the regulation of the internet industry. In addition to these functions, the ACMA has such other functions as are conferred on it by a number of specific Acts and has power to do all things that are incidental or conducive to the performance of its functions. The Minister is empowered to give directions to the ACMA in relation to the performance of its functions and the exercise of its powers. 807 If the direction pertains to the ACMA’s broadcasting, content and datacasting functions or powers, the direction can be of a general nature only, except where the Minister is empowered to give specific directions under the

801

ACMA Act, Pt 2, Div 2.

802

ACMA Act, s 10.

803 804

The planning responsibilities of the ACMA are discussed in [14.170]-[14.230]. BSA, Sch 5, cl 94; Sch 7, cl 114.

805

The ACMA’s power to conduct investigations is discussed in [14.1400].

806

BSA, Sch 5 cl 94, Sch 7, cl 114.

807

ACMA Act, s 14. Directions have to be published in the Gazette.

[14.1370] 931

Australian Media Law

BSA. 808 In addition to government policies and Ministerial directions, the ACMA is subject to parliamentary interference with the performance of many of its functions. 809 The ACMA is required to perform its broadcasting, content and datacasting functions in a manner consistent with Australia’s obligations under the CER Trade in Services Protocol. 810 The ACMA has a number of functions in relation to the regulation of online content. 811 They include monitoring compliance with registered codes and standards; advising parents and responsible adults in relation to the supervision and control of children’s access to internet content, conducting and/or co-ordinating community education programs about internet content and internet carriage services; in consultation with industry and consumer groups and government agencies; conducting and/or commissioning research into issues relating to internet content and internet carriage services; liaising with regulatory and other relevant bodies overseas about co-operative arrangements for the regulation of the internet industry (including, collaborative arrangements to develop multilateral codes of practice and internet content labelling technologies); and informing itself and advising the Minister on technological developments and service trends in the internet industry.

Powers [14.1380] The ACMA has a range of enforcement powers at its disposal to deal with breaches of the BSA including: referring a breach to the DPP for prosecution; seeking the imposition of a civil penalty; issuing remedial notices and designated infringement notices; seeking an injunction from the Federal Court; and accepting enforceable undertakings 812 from a person that the person will take, or refrain from, taking specified action in order to comply with the BSA or a registered code of practice. 813

Information gathering [14.1390] The BSA empowers the ACMA to investigate anything that is of concern to it at any time and, in particular, to consult with other persons, bodies and groups, form consultative 808

The circumstances in which the Act empowers the Minister to give specific directions to the ACMA relate to matters such as the clarification and determination of service category criteria (s 19(3)), the price based allocation system for commercial licences (s 36(2)) and the priority of particular community interests in allocating community licences that are broadcasting services bands licences (s 84(1)).

809

Many of the decisions and determinations of the ACMA that are subject to parliamentary disallowance have been identified throughout this chapter. ACMA Act, s 16.

810 811 812

BSA, Sch 5 cl 94; Sch 7 cl 114. BSA, s 205W(1). If the ACMA considers that the person has breached an undertaking it can apply to the Federal Court for any one of a number of orders, including an order that the person comply with the undertaking, an order that the person pay the ACMA, on behalf of the Commonwealth, an amount of money up to the amount of any financial benefit that the person obtained as a result of the breach of the undertaking, or an order directing the person to compensate a person who has suffered loss or damage as a result of the breach of the undertaking: BSA, s 205X.

813

For a comprehensive list of the principles that the ACMA will apply in deciding whether to exercise its enforcement powers, see: Australian Communications and Media Authority, Guidelines Relating to ACMA’s Enforcement Powers Under the Broadcasting Services Act 1992 (2011).

932 [14.1380]

Chapter 14 – Regulation of the Media

committees, conduct investigations and hold hearings, and generally to inform itself on any matter relevant to its functions as it thinks fit. 814 The only proviso is that the procedure that the ACMA adopts in informing itself must be that which it considers will be the quickest and most economical in the circumstances and which will promote the due administration of the Act. 815 The ACMA Act contains extensive provisions that govern the disclosure of information by the ACMA. 816

Investigations and hearings [14.1400] Although the ACMA has a wide discretion as to the manner in which it gathers information, the BSA contemplates that information will primarily be gathered through investigations. 817 An investigation can be conducted by the ACMA for the purpose of the performance or exercise of any of its broadcasting, content or datacasting functions either on its own volition or at the direction of the Minister. The ACMA can be directed by the Minister to investigate any matter over which Parliament has power to make laws by virtue of s 51(v) of the Commonwealth Constitution and, in particular, any matter that the Minister is satisfied should be investigated in the interests of the due administration of the BSA. There are no formal requirements for the commencement of an investigation; neither the public nor affected persons need be notified that an investigation has begun. The ACMA is permitted to call for written submissions from members of the public. Provision is also made for the ACMA to hold hearings for the purposes of the performance or exercise of any of its broadcasting, content or datacasting functions and related powers. 818 The Minister may direct the ACMA to hold a hearing if the Minister is satisfied that a hearing should be held in the interests of the due administration of the Act. However, it is more likely that the ACMA will conduct investigations in performing or exercising its functions or powers, as hearings will not usually be the quickest and most economical way of obtaining information. 819 If a hearing is held, it must be conducted with as little technicality and formality as possible, and as quickly and economically as the requirements of the Act and a proper consideration of the matters before the ACMA permit. In holding a hearing, the ACMA is not bound by rules of evidence. A hearing must ordinarily take place in public, although it may be conducted in private if the evidence that may be given or a matter that may arise during the hearing is of a confidential nature, or if the ACMA is satisfied that a public hearing would not be conducive to the due administration of the Act. If the hearing is to be held in public, the 814 815

BSA, s 168(1). See also ACMA Act, s 58 regarding the appointment of advisory committees. BSA, s 168(2).

816

ACMA Act, Pt 7A. ACMA shares information with the ACCC during media merger investigations: Australian Media and Communications Authority, “ACCC and ACMA Seeking to Share Confidential Media Merger Information” (Media Release 18/2007). Investigations are dealt with in BSA, ss 170 – 180 and the information in this section is drawn from these provisions.

817 818 819

Hearings are dealt with in BSA, ss 182 – 199 and the information in this section is drawn from these provisions. Even where the ACMA has conducted an investigation or hearing, the ACMA is not limited to material obtained by it through that investigation or hearing, but is permitted to take into account any matter it considers relevant in making a decision, including the knowledge and experience of its members: BSA, s 169.

[14.1400] 933

Australian Media Law

ACMA must give the public reasonable notice of its conduct. If the hearing is to be held in private, the ACMA must give directions as to who may be present and may also restrict the disclosure of evidence or other material presented at the hearing. Even where a hearing takes place in public, the ACMA may prohibit the publication or restrict the disclosure of evidence or other material presented at the hearing if it considers that it is of a confidential nature. A person who wishes to participate in a hearing may be represented by another person. As far as practicable, the ACMA must ensure that unrepresented persons are not disadvantaged. The ACMA is invested with power to summon a person to answer questions or produce documents or other relevant information at its investigations and hearings, and to examine a person on oath or affirmation. The examination of a person for the purposes of an investigation must be conducted in private, but the person is entitled to have an adviser present and a record of the examination must be made. Provision is made for the ACMA to prepare reports on hearings and investigations.

Protections afforded to investigations and hearings [14.1410] It is an offence to obstruct a member of a panel conducting a hearing, disrupt a hearing or essentially do any other thing that would amount to a contempt in the face of a court. 820 It is also an offence, and a civil penalty provision, for a person who is required to give evidence or produce documents at a hearing to fail to attend without reasonable excuse, or, in relation to an investigation or a hearing, to refuse or fail, without reasonable excuse, to take an oath or affirmation, answer a question or produce a document when required to do so. 821 The Act declares that it is a reasonable excuse for a person to refuse to answer a question or produce a document if to do so would tend to incriminate the person. 822 Moreover, it is a reasonable excuse for a journalist to refuse to answer a question or produce a document if this would tend to disclose the identity of a person who supplied information in confidence to the journalist and the information has been used for the purposes of a television or radio program or datacasting content. 823 Common law privileges such as legal professional privilege can also be claimed as they are not displaced by the Act. The participants in an investigation or hearing – including a member of a panel conducting a hearing, a lawyer appearing at a hearing and a person who is summoned to appear at a hearing or who gives evidence or produces documents at an investigation or hearing – enjoy the same respective protections and immunities as a judge of the High Court, a barrister appearing before the High Court and a witness in a proceeding in the High Court. 824 The ACMA, amongst others, is protected from civil or criminal liability in respect of the publication of a transcript or a report of an investigation or hearing. 825 820 821

BSA, s 201. BSA, s 202(1) – (2B).

822 823

BSA, s 202(3). BSA, s 202(4).

824 825

BSA, s 200. BSA, s 203.

934 [14.1410]

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Appeals from decisions of the Australian Communications and Media Authority [14.1420] The BSA permits specified persons to apply to the Administrative Appeals Tribunal (AAT) for the review of any one or more of dozens of types of decisions made under the Act in relation to broadcasting, datacasting and the internet. 826 The decisions from which an appeal lies to the AAT relate to certain aspects of the licensing of broadcasting and datacasting services, the control of commercial broadcasting services, the variation of class licence conditions, the imposition of new conditions, and certain decisions pertaining to programming and licence fees. When the ACMA makes a reviewable decision, it must include in the document by which the decision is notified, a statement setting out the reasons for the decision and a statement to the effect that an application can be made to the AAT for a review of the decision. 827 AAT review is merits review; that is, it involves a general review of the whole of the decision in question. The AAT has power to substitute its own decision for that of the ACMA and can correct errors of fact and law. The Federal Court has jurisdiction to review decisions of Commonwealth decision-makers, including the ACMA. 828 However, unlike an appeal to the AAT, judicial review is available only where there is an error of law in the decision-making process. Accordingly, before the Federal Court can alter a decision of the ACMA it must find a ground of review.

Complaints about broadcasting services and datacasting services [14.1430] One of the objects of the Act is to encourage the provision of means of addressing complaints about broadcasting services, and one of the primary functions of the ACMA is to monitor and investigate complaints about broadcasting and datacasting services. 829

Broadcasters and datacasters other than national broadcasters [14.1440] Persons who wish to complain about a matter pertaining to broadcasting or datacasting content or compliance with a registered code of practice in respect of a broadcaster or datacaster must first lodge their complaint with the provider of the broadcasting or datacasting service. 830 This reflects the co-regulatory character of the BSA. If there is a relevant code of practice dealing with the handling of complaints of that kind, the complaint must be made in accordance with that code. The codes of practice generally require the complaint to be made in writing or electronically within a certain time after the broadcast and contain provisions designed to ensure that service providers maintain adequate procedures for responding to complaints. If the person has not received a response within 60 days after making the complaint or if the person has received a response within that period but considers 826 827

BSA, s 204. See also BSA, Sch 4 cl 62; Sch 5 cl 92; Sch 6 cl 58, Sch 7 cl 113. BSA, s 205; Sch 4 cl 63; Sch 5 cl 93; Sch 6 cl 59.

828 829 830

Administrative Decisions (Judicial Review) Act 1977 (Cth). The exception is international broadcasting services: BSA, s 121FR. BSA, s 148 (broadcasters); Sch 6 cl 37 (datacasters).

[14.1440] 935

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it to be inadequate, the person may take the complaint to the ACMA. 831 These complaints procedures do not apply to datacasting services that consist of internet carriage services or the transmission of ordinary email; 832 nor does the provision apply if the datacasting licensee is the ABC or the SBS. 833 The procedure is different if a complainant believes that a person is providing a designated datacasting service without a datacasting service licence, or if a complainant believes that the provider of a broadcasting or datacasting service has committed an offence against the BSA or the regulations or breached a licence condition or, in the case of a broadcaster, has breached a civil penalty provision. In this situation, the complainant may lodge a complaint directly with the ACMA and need not go to the broadcaster or datacaster concerned in the first instance. 834 The ACMA may investigate a complaint if it thinks that it is desirable to do so. 835 If the ACMA upholds the complaint, it can exercise its regulatory powers in respect of the broadcaster or datacaster concerned. Complaints that do not fall into any of the aforementioned categories are not handled by the ACMA. 836

National broadcasters [14.1450] Complaints about national broadcasting services are treated differently. A person who wishes to complain that the ABC or the SBS has, in providing a national broadcasting service or a datacasting service, acted contrary to a code of practice that has been notified to the ACMA should lodge the complaint with the broadcaster concerned. 837 This means that the extent of the ACMA’s ability to handle complaints is directly tied to the content of the codes. Complaints about the ABC on any matter can be made in a public forum on a number of interactive forums on the ABC’s website, as well as on the spaces the ABC hosts on various social networking sites. If one to one engagement with the ABC is preferred, complaints can be made and dealt with by telephone to the relevant program making division, or, if more serious or complex, in writing to the ABC Audience & Consumer Affairs, which is independent of the ABC’s program-making divisions. If the complaint concerns a code of practice and the person has not received a response within 60 days or has received a response which that person considers inadequate, the 831

832 833 834

BSA, s 148 (broadcasters); Sch 6 cl 37 (datacasters). If there is a code of practice dealing with complaints, the complaint to the licensee must be made in accordance with that code in order to make a subsequent complaint to the ACMA: Harbour Radio Pty Ltd v Australian Communications and Media Authority (2010) 184 FCR 537; [2010] FCA 478. BSA, Sch 6 cl 37(2). Complaints about datacasting content transmitted by the ABC and SBS are dealt with under BSA, ss 150 – 153, not Sch 6. BSA, s 147 (broadcasters); Sch 6 cl 36 (datacasters).

835

BSA, s 149; Sch 6 cl 38. The ACMA is no longer under an obligation to investigate a complaint.

836

These include complaints about choice of programming, defamation claims, false and misleading advertising and billing claims in relation to subscription based services.

837

BSA, s 150.

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person may take the complaint to the ACMA. 838 The ACMA may investigate the complaint if it thinks that it is desirable to do so 839 If the ACMA is satisfied that the complaint is justified and that it should take action to encourage the ABC or SBS to comply with the relevant code of practice, the ACMA may recommend that the ABC or SBS take action to comply with the relevant code and take such other action as is specified in the notice, including the broadcasting or publishing of an apology or retraction. 840 If the ABC or SBS fails to take appropriate action within 30 days after receiving the recommendation, the ACMA may report the failure to the Minister, who must lay the report before Parliament. 841 The ACMA has no power to compel the broadcaster concerned to take any action.

Regulation of the print media [14.1460] There is no single piece of legislation which regulates the print media in Australia as a specific and separate area of the law. It has been suggested that this phenomenon is a reflection of the constitutional history of England, where removal of newspaper licensing and regulation in the late 1600s was regarded as an advance in civil liberties. 842 This may also explain why direct legislative power over the press was withheld from the Commonwealth Parliament at the time of federation. As a result of this laissez faire attitude, the press are not subject to a licensing process or specific content obligations, or to oversight by a statutory body akin to the ACMA. However, the print media are not entirely without regulation. A number of Acts impact on the ownership and control of the press, including the BSA, 843 the Competition and Consumer Act 2010 (Cth) and the Foreign Acquisitions and Takeovers Act 1975 (Cth), and some Australian States and Territories have legislation which imposes certain requirements in relation to printing and newspapers. 844 The print media is also subject to general laws such as contempt, defamation and copyright, as well as to a degree of voluntary regulation by the Press Council. Some newspapers have developed their own editorial policies and codes of conduct which they require their employees to observe. This position has remained largely unchanged in spite of the inquiries into the print and online media described in [14.10].

838

839

BSA, s 150(2). If the complaint concerns an alleged breach of Pt 9D (which deals with captioning), the complaint may be taken to the ACMA if a response has not been received within 30 days after the complaint was made: s 150(2). BSA, s 151.

840 841 842

BSA, s 152(1), (2). BSA, s 153. Armstrong, Lindsay and Watterson (3rd ed, 1995), p 207. For an overview of the history of the regulation of printing in England see: Brennan (2000) 22 Adelaide Law Review 63.

843

The provisions of the BSA that pertain to the ownership and control of newspapers draw on several general constitutional heads of power to support the regulation: BSA, s 52A. Ownership and control of the press is discussed in Chapter 15 and the printers and newspapers legislation is discussed in [14.1470]–[14.1490].

844

[14.1460] 937

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Printing and newspapers legislation [14.1470] Four Australian jurisdictions have legislation which is designed to prevent printed matter and newspapers from being printed and published by unknown persons. 845 The legislation was influenced by statutes passed to help repress dissent in England around the time of the French Revolution. 846

Imprint requirements for documents, papers and books [14.1480] In New South Wales, the Northern Territory and Queensland printed documents, papers and books 847 must bear an imprint identifying the name of the printer or the name under which the printer carries on business, the address at which the document, paper or book is printed and, in New South Wales and Queensland, the year in which it is printed. 848 The printer must also cause the name and address of the person for whom a document, paper or book was printed to be written or printed on a copy of that document, paper or book and must keep that copy for six months. 849 In New South Wales and Queensland, the copy must be produced or surrendered to a police officer upon request. Non-compliance with these requirements is an offence punishable by fine. It is also an offence for a person to sell, deliver, offer for sale or delivery, post, affix to an object or structure or leave in a public place, or expose to public view a paper that does not bear the printer’s name and the address at which the paper was printed. 850 There are extensive exemptions from the requirements. 851 In Victoria, a person who publishes a document in paper form (including a newspaper) for sale or distribution to the general public or a class of persons, or for public display, must print 845 846 847

848

Printing and Newspapers Act 1973 (NSW), Printers and Newspapers Act (NT), Printing and Newspapers Act 1981 (Qld), Wrongs Act 1958 (Vic). Armstrong, Lindsay and Watterson (3rd ed, 1995), p 211. In New South Wales and Queensland, the imprint requirements apply to “documents”, which are defined to include books, pamphlets, leaflets, circulars, advertisements, posters, magazines or other periodical publications but not newspapers: Printing and Newspapers Act 1973 (NSW), s 2; Printing and Newspapers Act 1981 (Qld), s 5. In the Northern Territory the requirements apply to “papers” which are defined to include a book, periodical, pamphlet, handbill, sheet of letterpress and paper of any description: Printers and Newspapers Act (NT), s 3. Printing and Newspapers Act 1973 (NSW), s 3(1)(d); Printers and Newspapers Act (NT), s 4(1); Printing and Newspapers Act 1981 (Qld), s 6(1)(d). In New South Wales and Queensland, this requirement applies only where the printer knows or has reason to believe that the document is intended to be sold or distributed to the general public or to a restricted class or number of persons, or is to be publicly displayed. In the Northern Territory, the requirement is imposed on a person who prints the document, paper or book for publication or dispersion, whether gratuitously or for money.

849

Printing and Newspapers Act 1973 (NSW), s 3(1)(a), (b); Printers and Newspapers Act (NT), s 5; Printing and Newspapers Act 1981 (Qld), s 6(1)(a), (b). In New South Wales and Queensland, this requirement is imposed only where the printer knows or has reason to believe that the document is intended to be sold or distributed to the general public or to a restricted class or number of persons, or is to be publicly displayed. In the Northern Territory, the requirement applies only where the paper is printed for hire, gain or profit.

850

Printing and Newspapers Act 1973 (NSW), s 3(2); Printers and Newspapers Act (NT), s 9; Printing and Newspapers Act 1981 (Qld), s 6(2). In New South Wales and Queensland, it is a defence if the person charged proves that the document was not printed in that State: Printing and Newspapers Act 1973 (NSW), s 3(3)(b); Printing and Newspapers Act 1981 (Qld), s 6(3). Printing and Newspapers Act 1973 (NSW), s 3(4); Printers and Newspapers Act (NT), s 3 (see definition of “paper”); Printing and Newspapers Act 1981 (Qld), s 6(4).

851

938 [14.1470]

Chapter 14 – Regulation of the Media

on the document sufficient information to enable that person to be identified. 852 This requirement is satisfied if that person’s name and address or registered business name and address are printed on the document in a conspicuous place in legible and durable characters. 853 Non-compliance with this requirement is a summary offence. 854

Imprint and registration requirements for newspapers [14.1490] In New South Wales, the Northern Territory and Queensland, separate and specific imprint requirements are imposed on newspapers. 855 Newspapers must bear an imprint of the name of the printer, the address at which the newspaper is printed and the name and address of the publisher. 856 Non-compliance with this requirement is an offence punishable by fine. 857 In New South Wales and Queensland it is also an offence to print, sell, deliver, offer for sale or delivery, post, affix to an object or structure in a public place, leave in a public place or expose to public view, a newspaper that does not contain these particulars. 858

The Press Council Establishment and membership [14.1500] The Australian Press Council was established by the print media in July 1976. 859 The Council is a voluntary, self-regulatory, non-profit, private association of organisations and persons. The core funding is provided by its constituent bodies, which comprise most of the major newspaper and magazine publishers in Australia as well as the Media Entertainment and Arts Alliance. The Council currently has a membership of 23, which includes: an Independent Chair who is chosen by the Council and who has always been a judge or university professor; nine nominees selected by the media organisations which are the constituent bodies of the Council (these are bodies which have agreed to provide funding to 852 853 854 855 856

857 858

859

Wrongs Act 1958 (Vic), s 13C(1). Documents which consist only of a representation of a work of art are not subject to the requirement: s 13B(1). Wrongs Act 1958 (Vic), s 13C(2). Wrongs Act 1958 (Vic), s 13C(4). It is a defence if the person proves that the document was not published in Victoria. In Victoria, newspapers are included in the definition of “document” and are subject to the imprint requirements outlined in [14.1480]. Printing and Newspapers Act 1973 (NSW), s 4(1); Printers and Newspapers Act (NT), s 6; Printing and Newspapers Act 1981 (Qld), s 7(1). The part of the newspaper in which these particulars must be printed varies between the jurisdictions. Printing and Newspapers Act 1973 (NSW), s 4(1); Printers and Newspapers Act (NT), s 6; Printing and Newspapers Act 1981 (Qld), s 7(1). Printing and Newspapers Act 1973 (NSW), s 4(2); Printing and Newspapers Act 1981 (Qld), s 7(2). It is a defence to a charge under this provision if the person charged proves that the newspaper was not printed in that State: Printing and Newspapers Act 1973 (NSW), s 4(3)(b); Printing and Newspapers Act 1981 (Qld), s 7(3). Except where otherwise stated, the information in this section is taken from the Press Council website: http://www.presscouncil.org.au.

[14.1500] 939

Australian Media Law

the Council, to co-operate with its consideration of complaints against them and to publish any adjudications that relate to their particular publications); 860 nine public members, who have no affiliation with a media organisation; and four independent journalist members who are not employed by a media organisation. The public members and independent journalists are appointed by the Council on the nomination of the Chair. The Council attempts to ensure that its members have a broad cross-section of qualifications, experience and community interests and that there is an appropriate balance of gender, ethnic and regional representation. All members are expected to act and vote as individuals, not as representatives of any organisation or interest.

Aims and objects of the Press Council [14.1510] The work of the Press Council is threefold. Firstly, it devises standards of good media practice to ensure that the press acts responsibly and ethically. 861 Secondly, the Council handles complaints about print publications and related digital outlets (such as websites) of publishers which are constituent bodies of the Council. Thirdly, the Council undertakes research and consultation, develops policies and publicly advocates on a range of issues that relate to the public’s access to information and freedom of expression, including submissions to parliamentary committees, commissions and other public bodies. The Council issued a Charter for a Free Press in Australia in 2003.

Standards of practice [14.1520] The Council has developed Standards of Practice which are binding on all print and online publishers who are members of the Council. They apply to text, headlines, photographs, graphics, captions, audio, video and all other forms of published material, but not to advertising. The Standards are applied by the Council when considering and adjudicating on complaints. They comprise the Statement of General Principles, the Statement of Privacy Principles and Specific Standards of Practice. The latter apply the two Statements of Principles to particular aspects of media practice. 862 The Council also issues Advisory Guidelines which may be taken into account but which are not binding Standards. 863 The Statement of General Principles applies to all print and online material published on or after 1 August 2014. It is reproduced in full: 860

The constituent bodies are: APN News and Media; Australian Associated Press; Australian Rural Publishers Association; Bauer Media; Community Newspapers of Australia; Country Press Association; Fairfax Media; Focal Attractions; Media Entertainment and Arts Alliance; News Corp; ninemsn; New Daily; New Matilda; Private Media; propertyreview.com.au; Urban Cinefile; and WorkDay Media. These organisations are responsible for approximately 90% of all print media sales in Australia. Seven West Media withdrew from the Press Council in 2012. It encompasses Seven Network, Pacific Magazines and West Australian Newspapers.

861

These standards are contained in the Council’s Statements of Principles, Specific Standards and Advisory Guidelines. They are applied by the Council when considering complaints. The Council began issuing Specific Standards in 2011. They bind all publications which are subject to the Council’s jurisdiction. At present there are two Specific Standards: one on the coverage of suicide and the other on contacting patients. Further Specific Standards are being developed, one relating to specific aspects of digital publishing and the other concerning conflicts of interest. Advisory Guidelines have been issued in respect of the following matters: adequate response/letters to the editor; advertorials ; “asylum seekers”, “illegal immigrants” and entry to Australia without a visa; bias; digital

862

863

940 [14.1510]

Chapter 14 – Regulation of the Media Preamble to the General Principles In a democratic society, all people have the right to freedom of expression and to be informed. These rights cannot be secured unless the press is free to publish facts and opinions without fear or favour. Freedom of the press, however, carries responsibilities to the public. Liberty does not mean licence, and due regard must be given to other important freedoms, rights and values which are in the public interest. Accordingly, the Press Council has laid down the following General Principles to which all publisher members are committed by the Council’s Constitution. The General Principles Publications are free to publish as they wish by reporting facts and expressing opinions, provided they take reasonable steps to comply with the following Principles and the Council’s other Standards of Practice: Accuracy and clarity 1.

Ensure that factual material in news reports and elsewhere is accurate and not misleading, and is distinguishable from other material such as opinion.

2.

Provide a correction or other adequate remedial action if published material is significantly inaccurate or misleading. Fairness and balance

3.

Ensure that factual material is presented with reasonable fairness and balance, and that writers’ expressions of opinion are not based on significantly inaccurate factual material or omission of key facts.

4.

Ensure that where material refers adversely to a person, a fair opportunity is given for subsequent publication of a reply if that is reasonably necessary to address a possible breach of General Principle 3. Privacy and avoidance of harm

5.

Avoid intruding on a person’s reasonable expectations of privacy, unless doing so is sufficiently in the public interest.

6.

Avoid causing or contributing materially to substantial offence, distress or prejudice, or a substantial risk to health or safety, unless doing so is sufficiently in the public interest. Integrity and transparency

7.

Avoid publishing material which has been gathered by deceptive or unfair means, unless doing so is sufficiently in the public interest.

8.

Ensure that conflicts of interests are avoided or adequately disclosed, and that they do not influence published material.

Explanatory Notes “Person” includes a group or category of people (provided it is reasonably specific and limited in number) and a corporation or other legal entity. “Sufficiently in the public interest”: The necessary level of justification in the public interest is proportionate to the gravity of the potential breach of the Principles. Relevant factors to consider may include, for example, the importance in the public interest of: alteration of images; drugs and drug addiction; health and medical matters; identifying a person with an intellectual disability; Nazi concentration camps; opinion polls; reader-based articles in lifestyle magazines; recalls of goods; religious terms in headlines; reporting elections; reporting of “race”; and witness payments in trials.

[14.1520] 941

Australian Media Law (a)

ensuring everyone has genuine freedom of expression and access to reliable information;

(b)

protecting and enhancing independent and vigorous media; public safety and health; due administration of justice and government, personal privacy, and national security; and

(c)

exposing or preventing crime, dishonesty and serious misconduct or incompetence (especially by public figures).

The Privacy Standards deal with privacy in the context of the activities of media organisations. 864 They were created for the purposes of the Privacy Act 1988 (Cth), which exempts media organisations from acts done, or practices engaged in, in the course of journalism if the media organisation is publicly committed to observing written standards that deal with privacy. 865

Complaints about the print media What can be complained about [14.1530] The Press Council receives complaints about “news reports, articles, editorials, letters, cartoons, images and other published material”. It does not handle complaints about advertising material, “except where the complaint is that the material is not clearly identifiable as advertising”. The Council considers complaints about material published in print or digital form by publishers which are “constituent bodies” of the Council. It “can also consider complaints about the methods used by publications to obtain information”. Most Australian newspapers and magazines, and their associated websites, are constituent bodies and so are some of the leading digital-only publishers. The Council “may also consider complaints about material published by other publishers”, but unlike the constituent bodies, those publishers are not under a legal obligation to cooperate with the Council or to publish any adjudication made by it. Complaints are treated by the Council as being “against the publication, not any individual journalist or editor”. However, in most cases, the Council’s consideration is likely to focus on the actions of journalists, editors or other media practitioners.

Who can complain? [14.1540] In general, any person may lodge a complaint about published material, free of charge, by completing the Council’s Complaint Form and sending it to the Council. However, “(w)here a complainant is not personally identified or directly affected by the published 864 865

These Standards are reproduced on the Press Council’s website. They deal exclusively with personal information about individuals. Privacy Act 1988 (Cth), s 7B(4). The Australian Law Reform Commission favours the retention of this exemption but has recommended that two new limitations to the exemption for acts and practices in the course of journalism be introduced, namely, that a definition of “journalism” should be introduced for the purposes of the Privacy Act; and media organisations must be committed to “adequate privacy standards”. Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, Report No 108 (2008).These recommendations have not been acted upon to date.

942 [14.1530]

Chapter 14 – Regulation of the Media

material, the complaint is considered as a ‘secondary complaint’ and some different procedures apply”. 866 The Council will not consider complaints by one publisher member of the Council against another except in exceptional circumstances. Since the Council’s complaints process “seeks to be as informal, prompt and economical as possible”, complaints must be “made and pursued by complainants themselves or their family or friends, not by lawyers or other professional representatives”. For their part, publications are “usually required not to communicate with the Council through lawyers”.

When can a complaint be made? [14.1550] A person can complain to the Council after complaining to the relevant publication, at the same time as a complaint is made to the publication or without having complained to the publication. Where a complaint is made directly to the Council, the Council may decide to consider the complaint or may ask the complainant to raise the complaint directly with the publication and come back to the Council only if its further involvement is sought. Complaints must usually be made within thirty days of the first publication of the relevant material. 867 The Council “does not require complainants to undertake that they will not commence legal proceedings in relation to the material about which they are complaining”, but it does require them to inform the Council “if they have done so or may do so”. If “proceedings have commenced or there is a reasonable possibility that they may be commenced, the publisher may request that the Council withholds action or does not take any action unless the complainant meets specified conditions”, including, for example, that “the complainant signs a confidentiality agreement or, if the complainant prefers, a commitment not to commence legal proceedings”.

How are complaints handled? [14.1560] The Council’s procedures for handling of complaints are threefold: reception of complaints; 868 Level 1: consideration by Council staff; 869 and Level 2: consideration by the Adjudication Panel of 5-7 members. 870 The great majority of the complaints received each year by the Press Council are finalised at Level 1. Many complaints result in some remedial action being taken by the publication as a product of the involvement of Council staff, such as the provision of an explanation, a right of reply, a correction or an apology. If a complaint 866

867

The complaints-handling process may not involve the complainant after a particular stage in the process has been reached unless the Executive Director decides that this approach is desirable to effectively clarify and interpret the relevant issues and Standards of Practice. Thus secondary complainants are usually not involved in negotiation and adjudication. However, they are kept informed of the stage which the Council’s consideration has reached and of the final outcome. A longer period is allowed in certain circumstances.

868

See http://www.presscouncil.org.au/reception-of-complaints/.

869

See http://www.presscouncil.org.au/informal-consideration-of-complaints-level-1/.

870

See http://www.presscouncil.org.au/referral-to-adjudication-panel-level-2/. The members of the Council’s Adjudication Panel are the Chair of the Council, all public and independent journalist members of the Council, three of the industry nominees on the Council and a number of people from community and media backgrounds who are not current Council members.

[14.1560] 943

Australian Media Law

proceeds to an adjudication, the adjudication must be published by the publication in accordance with the Council’s specific requirements. 871 Where a complaint is upheld, the adjudication may include a reprimand or censure, and may explicitly call for (but not require) apologies, retractions, corrections or other specified remedial action by the publisher. The Council may also call for specific measures to prevent recurrence of the type of breach in question. However, it has no power to order compensation, fines or other financial sanctions. It has been described as more akin to an ombudsman than a tribunal. 872

The success of self regulation in the print media [14.1570] From time to time there has been debate as to whether the Press Council should be placed on a statutory footing and endowed with punitive powers. 873 Some regard the absence of punitive sanctions as a strength, arguing that self-regulation is the only practicable defence against the agitation for control of the press by any outside authority. 874 Moreover, self-regulation is cheap, quick and efficient since it does not involve the presence of lawyers and bureaucrats. Others argue that the Press Council has no teeth and should be replaced by a statutory regime with the power to fine publishers and order the publication of adjudications. 875 This debate was re-ignited in 2011 and 2012 when the Finkelstein and Convergence Inquiries were being conducted, but no significant changes resulted. 876

Regulation of journalists [14.1580] There is very little regulation of the conduct of individual journalists. Although most journalists hold a degree in journalism, no formal qualifications are required before a person can engage in journalism and there is no supervisory body that oversees the practice of journalism. The only form of accountability is imposed on journalists who are members of the Australian Journalists’ Association section of the Media Entertainment and Arts Alliance 871

A link to the adjudication must remain permanently on the digital version of the original material: Professor J Disney, Media Standards: Some Challenges and Opportunities, Address to the National Press Club, 4 February 2015.

872

Professor J Disney, Media Standards: Some Challenges and Opportunities, Address to the National Press Club, 4 February 2015. For a range of views see: see: Z Cowen, “The Responsibility of the Press: Some Current Reflections” (1993) 15 Australian Journalism Review 73; D Flint and J Mo, “Australian Press Council: A Pioneer in Alternative Dispute Resolution” (1995) 2 Commercial Dispute Resolution Journal 1; R Lucas, “The Press Council: Guarding the Fourth Estate – Evaluation of the Self Regulation of the Industry Through the Press Council” (1986) 11 Legal Service Bulletin 15; P O’Malley, “Regulation, Pseudo-regulation and Counter-regulation: The Operation of the Australian Press Council” (1987) 9 Media Culture and Society 77; M Pearson, “Press Self-regulation in Australia” (1992) Journal of Media Law and Practice 115; N Waters, “Press Self-regulation: Fatally Flawed?” (1996) 127 Communications Update 18; JH Wooten, “The Australian Press Council” (1986) University of New South Wales Law Journal 17; Hon R Finkelstein QC, Report of the Independent Inquiry into the Media and Media Regulation (February 2012); Professor J Disney, Media Standards: Some Challenges and Opportunities, Address to the National Press Club, 4 February 2015. Australian Press Council, Annual Report No 6 (1982), p 5. Senate, Information Technology Committee, Parliament of Australia, In the Public Interest: Monitoring Australia’s Media (2000). See [14.10].

873

874 875 876

944 [14.1570]

Chapter 14 – Regulation of the Media

(MEAA), which is a union and professional organisation which covers people in the media, entertainment, sports and arts industries. 877 Not all journalists in the print and electronic media are members of MEAA. One of the consequences of membership is that journalist members must comply with the MEAA Code of Ethics. The code was first adopted in 1944 and revised in 1999 following a comprehensive review by an Ethics Review Committee. 878 The Code is formally enshrined in the rules of MEAA and is the principal document establishing journalistic standards in Australia.

The Code of Ethics [14.1590] The full text of the revised Code is as follows: Respect for truth and the public’s right to information are fundamental principles of journalism. Journalists describe society to itself. They convey information, ideas and opinions, a privileged role. They search, disclose, record, question, entertain, suggest and remember. They inform citizens and animate democracy. They give a practical form to freedom of expression. Many journalists work in private enterprise, but all have these public responsibilities. They scrutinise power, but also exercise it, and should be accountable. Accountability engenders trust. Without trust, journalists do not fulfil their public responsibilities. Alliance members engaged in journalism commit themselves to: Honesty Fairness Independence Respect for the rights of others Journalists will educate themselves about ethics and apply the following standards: 1.

Report and interpret honestly, striving for accuracy, fairness and disclosure of all essential facts. Do not suppress relevant available facts, or give distorting emphasis. Do your utmost to give a fair opportunity for reply.

2.

Do not place unnecessary emphasis on personal characteristics including race, ethnicity, nationality, gender, age, sexual orientation, family relationships, religious belief or physical or intellectual disability.

3.

Aim to attribute information to its source. Where a source seeks anonymity, do not agree without first considering the source’s motives and any alternative attributable source. Where confidences are accepted, respect them in all circumstances. 879

4.

Do not allow personal interest, or any belief, commitment, payment, gift or benefit to undermine your accuracy, fairness or independence.

877

See https://www.alliance.org.au/index.php?option=com_jefaqpro&view=category&layout=categorylist&task= lists&catid=1&Itemid=.

878

The Ethics Review Committee drafted a revised Code with 20 specific standards: Ethics Review Committee, Issues Paper (1993). The draft code was subsequently modified by an Ethics Working Party consisting of MEAA journalists. The Working Party replaced the 20 specific standards with 12 standards which were more prescriptive in nature.

879

This absolute ethic has brought journalists into conflict with courts, as discussed in Chapter 7. It can also conflict with clause one, as identity of a source may be “a relevant available fact” which should not be suppressed.

[14.1590] 945

Australian Media Law 5.

Disclose conflicts of interest that affect, or could be seen to affect, the accuracy, fairness or independence of your journalism. Do not improperly use a journalistic position for personal gain.

6.

Do not allow advertising or other commercial considerations to undermine accuracy, fairness or independence.

7.

Do your utmost to ensure disclosure of any direct or indirect payment made for interviews, pictures, information or stories.

8.

Use fair, responsible and honest means to obtain material. Identify yourself and your employer before obtaining any interview for publication or broadcast. Never exploit a person’s vulnerability or ignorance of media practice.

9.

Present pictures and sound which are true and accurate. Any manipulation likely to mislead should be disclosed.

10

Do not plagiarise.

11.

Respect private grief and personal privacy. Journalists have the right to resist compulsion to intrude.

12.

Do your utmost to achieve fair correction of errors.

Guidance Clause Basic values often need interpretation and sometimes come into conflict. Ethical journalism requires conscientious decision-making in context. Only substantial advancement of the public interest or risk of substantial harm to people allows any standard to be overridden. 880

One of the main problems with the Code of Ethics is that it does not bind the persons who are most vital to its effectiveness, namely, media proprietors, editors and producers. These persons exercise real and final power over what methods are used in journalism, how the results are published or broadcast, and how initial complaints are handled. Individual journalists lack control over many of the issues canvassed in the Code, as most journalists are employees who are subject to direction and veto by their employers. 881 A further limitation is that the Code can only bind members of the MEAA. Journalists who are not members of the union are outside its reach.

Enforcement procedures [14.1600] The procedures for handling complaints against journalists for violation of, or refusal to observe, the Code of Ethics are contained in the MEAA Rules. 882 A person who 880

Clause by clause explanatory notes to the Code appear in Ethics Review Committee, Ethics in Journalism, Final Report (1997), pp 14-78, although it must be borne in mind that the 20 standards described therein have been replaced by 12 standards which, though similar in many respects, are not identical. For discussions of the revised code see: P Chadwick, “MEAA Reviews Ethics Process” (1997) 131 Communications Update 21; M Hirst, “MEAA Code of Ethics for Journalists: An Historical and Theoretical Overview” (1997) 83 Media International Australia 63; N Lucas, “Australian Journalists Association Section of the Media Entertainment and Arts Alliance: Final Report of the Ethics Review Committee” (1997) 1(2) Telemedia 30.

881

For example, ideally, the code should require errors to be corrected, but a journalist who discovers an error may not be in a position to insist or ensure that this occurs. The relevant rules are contained in Section 8, rr 64-69, http://www.fwa.gov.au/documents/organisations/ current_rulebooks/129v.pdf.

882

946 [14.1600]

Chapter 14 – Regulation of the Media

wishes to complain about an individual journalist’s violation or refusal to observe the Code of Ethics can do so in writing to the Ethics Panel. 883 The Ethics Panel is made up of nine journalist members of the Alliance and four persons from the general community appointed by the National Journalists’ Section Committee. The Ethics Panel must receive and investigate a written complaint unless the majority are of the view that it does not come within the Code or is frivolous, vexatious or trivial. Upon receiving a written complaint, the Ethics Panel must inform the journalist concerned and convene a Complaints Panel within eight days. A Complaints Panel consists of three members of the Ethics Panel, at least one of whom is not a member of MEAA. The Complaints Panel can dismiss the complaint, attempt to mediate the complaint, seek further information from the parties or other persons, have the parties appear personally before the Panel and allow the parties to call and examine witnesses. It is not bound by the rules of evidence, but must follow the formalities associated with legal proceedings where this is necessary to protect the journalist against whom the complaint has been made. The object of the hearing is to ascertain the truth and substance of the matter and to this end, the rules of natural justice must be observed. Neither party has the right to legal representation. The Complaints Panel decides by majority vote whether to uphold or dismiss the complaint. If upheld, the Panel must decide by majority vote what penalty to impose. A journalist who is found to have committed an offence against the Code of Ethics is liable to receive any of the following penalties: a warning, a reprimand, a fine of up to $1000, suspension from MEAA for up to one year or expulsion from MEAA. No provision is made for ordering the publication of a correction. The parties must be advised of the Complaints Panel’s decision within 28 days. Any party to a matter considered by a Complaints Panel shall have the right to appeal against any decision of the Panel, with the exception of a decision to dismiss the complaint. An appeal must be lodged with the Federal Secretary within 28 days of being notified of the decision. If a party lodges an appeal, the Ethics Panel must convene an Appeals Panel, which consists of five members of the Ethics Panel, at least two of whom must not be members of MEAA. No member of the original Complaints Panel can sit on the Appeals Panel. The Appeal Panel is restricted to correcting error in the decision of the Complaints Panel. The Appeals Panel can uphold or dismiss the appeal, vary the original decision of the Complaints Panel, direct a new Complaints Panel to be convened to reconsider the complaint, seek further information, have the parties appear personally before the panel and allow the parties to call and cross-examine witnesses and furnish written statements. The processes of the Complaints Panel apply to the Appeals Panel. Decisions and recommendations must be published in accordance with any guidelines issued by the National Journalists Section Committee. It is understood that since the MEAA rejoined the Press Council in 2005, most complaints are dealt with under the Press Council’s complaints regime and these procedures are rarely invoked.

883

Oral or anonymous complaints are not accepted. The complainant is not asked to waive their legal rights.

[14.1600] 947

Media Ownership and Control

15

[15.10] INTRODUCTION .................................................................................... 950 [15.20] BACKGROUND TO THE REGULATION OF MEDIA OWNERSHIP AND CONTROL ................................................................................ 951 [15.30] Concentration of ownership ................................................................. 952 [15.40] Foreign ownership ................................................................................. 954 [15.50] MEDIA OWNERSHIP AND CONTROL UNDER THE BROADCASTING SERVICES ACT ...................................................... 956 [15.50] Overview ................................................................................................ 956 [15.60] Statutory control rules for commercial television and radio broadcasting licences ....................................................................... 957 [15.70] [15.120]

Ownership and control of commercial television broadcasting licences ........................................................ 958 Ownership and control of commercial radio broadcasting licences ........................................................ 960

[15.150] Transactions that result in unacceptable media diversity situations and unacceptable three-way control ............................. 961 [15.160] [15.170] [15.180] [15.190] [15.200]

[15.210]

[15.280]

[15.320]

Unacceptable media diversity situations: the 5/4 rule ........ 961 Unacceptable three-way control ........................................ 966 Associated newspapers ...................................................... 966 Disclosure of cross-media relationships .............................. 967 Regional protections .......................................................... 968 The concept of control ....................................................................... 968 [15.220] The legislative essay on control ......................................... 969 [15.230] Rules for deciding who is in a position to exercise control .............................................................................. 971 [15.240] Deemed control ................................................................ 973 [15.250] Tracing of ownership ......................................................... 973 [15.260] Company interests ............................................................ 974 [15.270] Obtaining an opinion on control ....................................... 975 Enforcement of the ownership and control restrictions .................. 976 [15.290] Prior approval of temporary breaches ................................ 976 [15.300] Offences ............................................................................ 978 [15.310] Notices to remedy ............................................................. 978 Enforcement tools ............................................................................... 980 [15.330] Notification requirements .................................................. 980 [15.340] Registers ............................................................................ 981 Ownership and control of community broadcasting licences ........ 981

[15.360] [15.370] MEDIA OWNERSHIP AND CONTROL UNDER THE COMPETITION AND CONSUMER ACT 2010 ................................. 982 [15.370] The Competition and Consumer Act 2010 and subscription television broadcasting licences ...................................................... 982 [15.380] The relationship between the Competition and Consumer Act 2010 and the Broadcasting Services Act 1992 ........................ 983 949

Australian Media Law

[15.390] The Competition and Consumer Act 2010 and the print media .... 983 [15.400] Section 50 of the Competition and Consumer Act 2010 ................ 983 [15.400] [15.410]

Elements of section 50 ...................................................... Merger clearances and authorisations ................................ [15.450] The ACCC’s traditional approach to media mergers ....................... [15.460] The ACCC’s media merger guidelines ............................................... [15.490] Section 50 and the non-economic consequences of mergers ........

983 984 987 988 991

[15.500] MEDIA OWNERSHIP AND CONTROL UNDER THE FOREIGN ACQUISITIONS AND TAKEOVERS ACT 1975 ................. 992 [15.500] Foreign investment and the BSA ....................................................... 992 [15.510] The general regulatory regime governing foreign ownership in Australia ...................................................................... 992 [15.520] FUTURE REFORM ................................................................................. 995 [15.520] The Need for Reform .......................................................................... 995 [15.530] Attempts at reform .............................................................................. 996

Introduction [15.10] Governments have traditionally relied heavily on television, radio and newspapers as their primary means of communicating with the electorate. This does not mean that the media are the passive conduits of information supplied to them by politicians and bureaucrats. On the contrary, to a large extent the media are the arbiters of what is newsworthy, as it is they who construct the agenda for political debate, determining which issues are covered, in what depth and with what perspective. 1 To the extent that the media are able to shape public discourse and influence public opinion and the way in which the electorate votes, the fate of a government is, to a significant degree, in their hands. Governments therefore have a vested interest in who controls the media. As a result, government policy in relation to media ownership and control is prone to be dictated not by policy considerations devised at arms’ length in the public interest, but by a desire to secure continued favour with powerful media magnates. 2 Even if a government was committed to formulating its media policies in a generalised, abstract manner, the fact that there are so few players in the Australian media means that it could not fail to be aware of the effect of its policies on specific persons and transactions. The result is that media ownership and control has always been a politically charged issue. 1

For some recent accounts of the power of Rupert Murdoch see: D McKnight, Rupert Murdoch: An Investigation of Political Power (2012); R Manne, “Why Rupert Murdoch Can’t be Stopped: The Political Empire of the News Corp Chairman” (November 2013) 95 The Monthly 22; M Hobbs, ““Kick this mob out”: The Murdoch Media and the Australian Labor Government (2007 to 2013)” (2014) 8(2) Global Media Journal Australian Edition 1. It is not only media owners who wield power; individual journalists sometimes have a higher profile than the organisation for which they work.

2

The view that the formation of media policy in Australia has been unduly influenced by the power and authority of media barons is widely held: S Cunningham and G Turner (eds), The Media in Australia: Industries, Texts, Audiences (2nd ed, 1997), p 32. See also D Bowman, The Captive Press (1988); P Chadwick, Media Mates: Carving Up Australia’s Media (1989); T Barr, Newmedia.com.au: The Changing Face of Australia’s Media and Communications (2000), Ch 1; F Papandrea, “Digital Television Policy: A Squandered Opportunity” (2001) 8(1) Agenda 65; P Jones, “Australian Cross-Media Ownership Rules and Freedom of Political Communication” (2005) 28(3) University of New South Wales Law Journal 916 at 919.

950 [15.10]

Chapter 15 – Media Ownership and Control

To some extent, the internet is challenging the ability of the traditional media providers to set and control the parameters of public dialogue. Politicians and political parties are increasingly utilising websites and social media as a more direct means of communicating with the public and the proliferation of parliamentary press secretaries and media advisors who are now interposed between politicians and journalists exercise a significant degree of control over the information that enters the public domain. 3 Moreover, the participatory culture wrought by the internet and social media has enabled citizens to customise the news content they receive, to generate news and to make a more meaningful and widespread contribution to public debate. It has also facilitated the entry of new voices. 4 Nevertheless, the traditional media continue to dominate the most popular online news spaces 5 and media ownership and control remains a politically sensitive matter. 6 This chapter begins by providing some background to the regulation of media ownership and control in Australia. The bulk of the chapter is then devoted to explaining the current regulatory regime. The chapter will conclude by outlining some recent attempts to reform the media ownership and control rules in view of the advent of new media services and technologies.

Background to the regulation of media ownership and control [15.20] Two aspects of media ownership and control have traditionally been the subject of regulatory attention: concentration of ownership 7 and the appropriate level of foreign ownership. 8 3

4 5

6

7

8

I Ward, “Mapping the Australian PR State” in S Young (ed), Government Communication in Australia (2007) ch 1; S Stockwell, “Spin Doctors, Citizens and Democracy” in S Young (ed), Government Communication in Australia (2007), ch 9. Examples include New Daily and The Guardian Australia. In Australia, most of the top 10 news websites are owned and operated by the major newspapers and television networks: Australian Government, Department of Communications, Media Control and Ownership, Policy Background Paper (June 2014), pp 27, 36. See also Australian Government, Convergence Review Final Report (2012) ix. The UK Leveson report – Right Hon Lord Justice Leveson, An Inquiry into the Culture, Practices and Ethics of the Press (2012) – and the criminal investigations and prosecutions that have ensued since that report, bear witness to the dangers that can arise when powerful press barons, editors and journalists wield excessive influence over politicians. Concentration of ownership and control of the broadcasting media has always been of particular concern to governments. Legislation restricting the number of radio licences that could be held by any one person dates back to 1935: see Statutory Rules 1935, No 120, made pursuant to the Wireless Telegraphy Act 1905 (Cth). The need to avoid undue concentration of ownership and control of commercial television broadcasting licences was anticipated by the 1954 Royal Commission into Television, and when television was first introduced in Australia in 1956, the Menzies Government immediately imposed limits on the number of television stations that any one person could control. The purpose of the limit was to ensure that ownership and control of television stations was in as many hands as practicable and that “it should not be possible for any one organization to obtain control of any substantial number of stations”: Commonwealth, Parliamentary Debates, House of Representatives, 19 April 1956, p 1537 (Mr Davidson). Foreign ownership and control of commercial television licences was restricted from its inception in 1956. Even prior to the introduction of commercial television, a motion was passed in the House of Representatives

[15.20] 951

Australian Media Law

Concentration of ownership [15.30] There is an enduring concern about concentration of ownership, both within a particular medium and between different media. The principal objection to a high concentration of media ownership is not economic. Diversity of ownership is primarily valued, not for its propensity to encourage competition and, as a consequence, lower prices for the consumer, but because it is assumed to be a necessary means of securing a diversity of views, ideas and opinions on a broad range of issues, which is regarded as essential for the effective functioning of a modern democracy. Conversely, it is assumed that a high concentration of ownership will result, at worst, in the deliberate dissemination of one-sided views, 9 or, at best, in the inadvertent suppression of different shades of opinion, resulting in an uninformed citizenry. 10 The proposition that diversity of ownership will produce a range of ideas and opinions remains unverified, largely because ideas and opinions are intangible and do not lend themselves to empirical analysis or objective measurement. However, although somewhat of an “article of faith”, the proposition has intrinsic logic. Accordingly, governments have historically been prepared to accept that media ownership and control restrictions will have a prophylactic effect 11 and should be permitted to operate on the basis that actual proof of their effectiveness is not required. 12 The pursuit of diversity of ownership has always been in tension with the need for commercial viability in the media sector. Economic forces favour concentration of ownership, as concentration of ownership tends to increase economies of scale. 13 This trend of

and the Senate indicating that, in the opinion of each House, it was undesirable that any person not an Australian citizen should have any substantial measure of ownership or control over any Australian broadcasting station, whether such ownership or control be direct or indirect: Commonwealth, Parliamentary Debates, House of Representatives, 28 November 1951, p 2915 (Mr Wentworth); Commonwealth, Parliamentary Debates, Senate, 28 November 1951, p 2863 (Senator Gorton). For a review of the history of the foreign ownership of Australia’s media see J Given, “Foreign Ownership of Media and Telecommunications: An Australian Story” (2002) 7(4) Media and Arts Law Review 253. 9

This may occur at the express direction of a powerful media magnate or as a result of a tendency on the part of journalists to self censor if they perceive that there is a lack of alternative employment opportunities were they to be dismissed for publishing material that is inimical to the commercial or political interests of their employer. The evidence suggests that both these phenomena occur. See, for example: C Warren, “The Price of Freedom: New Media Ownership Laws and a Free Australian Press” (2007) 30(1) University of New South Wales Law Journal 269 at 270-271 and the survey referred to therein.

10

For a more rigorous analysis of the meaning of diversity in the context of mass media policy see: F Papandrea, “Media Diversity and Cross-media Regulation” (2006) 24(3) Prometheus 301.

11

See, for example, Federal Communications Commission, 2002 Biennial Regulatory Review: Report and Order and Notice of Proposed Rulemaking, FCC 03-127, Washington, DC, 2003 11 as cited in Papandrea (2006) 24(3) Prometheus 301 at 311. L Grey, “Ownership and Control: Media and Markets” (Paper presented at Broadcasting and Its Regulation in the New Era, Centre for International Research on Communication and Information Technology, November 1991). This is particularly true of Australia, which, owing to its small population, is unable to sustain a large number of media owners.

12

13

952 [15.30]

Chapter 15 – Media Ownership and Control

consolidation amongst traditional media organisations is long standing. 14 This is particularly true of the print media, where economic forces inexorably favour monopoly newspapers within a market, and group ownership of newspapers in different markets. 15 If primacy is given to the need for economies of scale, there will be a cost in terms of diversity. For example, unless precluded by regulation, large media organisations will reduce the number of their newsrooms and journalists, and will tend to network the same stories and information throughout all their newspaper titles or broadcasting outlets. However, it should be noted that not everyone concurs with the long standing assumption that concentration of ownership is inimical to the production of a diversity of content and to the dissemination of a wide range of viewpoints. Some would argue that larger entities are needed to achieve the economies of scale that are necessary to foster a greater quantity and quality of news, information and current affairs. 16 But Hitchens, for example, asserts that it is not readily apparent why consolidation of ownership and control would translate into increased program expenditure and greater diversity of content, rather than just secure a better return for investors. 17 The appropriate balance between diversity of ownership and commercial viability and efficiency has always been a bone of contention between governments, media proprietors and free speech advocates. The tension between the two is reflected in the disparate objects of the Broadcasting Services Act 1992 (Cth) (BSA), one being to “encourage diversity in the control of the more influential broadcasting services”, 18 another being to “provide a regulatory environment that will facilitate the development of a broadcasting industry that is efficient, competitive and responsive to audience needs”. 19 Prior to the enactment of the Broadcasting Services Amendment (Media Ownership) Act 2006 (Cth), the BSA addressed concentration issues through a range of specific rules that applied to commercial radio broadcasters, commercial television broadcasters, associated newspapers, and, to a lesser extent, subscription television broadcasters. However, many of these rules were repealed by the Broadcasting Services Amendment (Media Ownership) Act 2006 (Cth) as part of the Howard Government’s media reform package, leaving media concentration issues to be governed to a greater extent by general legislation, namely, the Competition and Consumer Act 2010 (Cth) (formerly the Trade Practices Act 1974 (Cth)).

14

Senate Standing Committee on Environment, Communications, Information Technology and the Arts, Parliament of Australia, Broadcasting Services Amendment (Media Ownership) Bill 2006 and Related Bills (2006), [2.43].

15

House of Representatives Select Committee on the Print Media, Parliament of Australia, News and Fair Facts: The Australian Print Media Industry (1992), [6]. Dr R Jolly, Media Ownership Deregulation in the United States and Australia: in the Public Interest? (Research Paper No 1, Parliamentary Library, Parliament of Australia, 2007-08), p 53. See Jones (2005) 28(3) University of New South Wales Law Journal 916. L Hitchens, “Australian Media Reform: Discerning the Policy” (2007) 30(1) University of New South Wales Law Journal 246 at 254.

16

17 18 19

BSA, s 3(c). BSA, s 3(b).

[15.30] 953

Australian Media Law

Foreign ownership [15.40] The Australian Government’s attitude to foreign ownership of the media has undergone a gradual shift from one of strict limitation, to the current position, which is one of greater acceptance and encouragement. The objection to foreign ownership has historically been based on the power of the media to shape public opinion on issues such as defence, finance, immigration, trade and the environment, all of which affect Australia’s international relationships. It is said that if foreign ownership and control is not restricted, foreign persons who are un-Australian in sympathy and outlook could impose their views and perspectives on the Australian community, although interestingly, the Productivity Commission considered that foreign owners actually might be less likely to seek to interfere in domestic affairs or to have conflicts of interest in the local market than their Australian counterparts. 20 Persons who hold concerns about the detrimental impact of foreign ownership on Australia’s national sovereignty would argue that the Australian public is entitled to assume that their broadcasters and newspapers are presenting Australian views, rather than the perspectives of persons who have no connection with, or allegiance to, Australia. Today, the emphasis is more likely to be on the need to prevent Australian culture from being swamped by foreign information and entertainment. The remaining objections are economic. It is assumed that foreign persons will not have the same commitment as Australians to invest money in the development of Australian creative resources, foster new Australian talent and produce high quality Australian productions. There is also a concern that the profits to be derived from broadcasting and newspapers will be taken overseas rather than distributed within the Australian community. Until 2006, these objections were addressed in the BSA via the imposition of specific foreign ownership and control restrictions on commercial and subscription television broadcasting services. 21 Foreign ownership of commercial radio licences was restricted under the Broadcasting Act 1942 (Cth) but these restrictions were never carried across to the BSA. Foreign investment in mass circulation national, metropolitan, suburban and provincial newspapers was subject to specific limits that were contained in the Australian Government’s Foreign Investment Policy. 22 In 2006, the Howard Government secured the repeal of all the specific foreign ownership restrictions imposed on broadcasters under the BSA, leaving foreign ownership to be 20 21

22

Productivity Commission, Broadcasting, Report No 11 (2000), p 334. See also: Explanatory Memorandum to the Broadcasting Services Amendment (Media Ownership) Bill 2002, Regulation Impact Statement, [65]. A foreign person was not permitted to be in a position to exercise control of a commercial television broadcasting licence and two or more foreign persons were not permitted to have company interests greater than 20% in a commercial television broadcasting licence. Moreover, not more than 20% of the directors of a commercial television broadcasting licensee could be foreign persons. Foreign persons could not have more than 20% company interests in a subscription television broadcasting licence, while aggregate foreign ownership of such licences could not exceed 35%. The restrictions on subscription television proved to be ineffective, as they were confined to “company interests” and did not encompass other means of control. The maximum permitted foreign interest non-portfolio investment involvement in national and metropolitan circulation newspapers by a single shareholder was 25%, and unrelated foreign interests were allowed to have non-portfolio shareholdings of up to 5%, that is, a maximum of 30%. Aggregate foreign direct involvement in provincial and suburban newspapers was limited to less than 50% for non-portfolio shareholdings.

954 [15.40]

Chapter 15 – Media Ownership and Control

regulated solely by the Foreign Acquisitions and Takeovers Act 1975 (Cth) and the associated Foreign Investment Guidelines. At the same time, the specific restrictions on foreign investment in newspapers were removed from the Foreign Investment Guidelines. The Government advanced a number of justifications for removing the specific restrictions on foreign ownership. 23 They included: • the policy of Australian ownership is at odds with the policy of diverse ownership. Owing to its small population base, Australia is unlikely to produce a large number of media proprietors. Accordingly, a certain level of foreign ownership is needed to broaden the scope for increased competition by increasing the pool of potential media owners, thereby acting as a safeguard against excessive media concentration. 24 The repeal of the foreign ownership restrictions would allow this to occur; • repeal of the restrictions would assist Australian media organisations to access foreign capital and managerial expertise and improve their capacity to adopt new technologies; • the objective of Australian ownership is at variance with the worldwide trend towards globalisation. Businesses are increasingly taking on a global dimension and, unless precluded by regulation, media organisations will naturally form part of this trend, rendering a higher level of foreign ownership inevitable. The foreign ownership and control restrictions in the BSA inhibited Australian media enterprises from forging strategic, international partnerships; • the foreign ownership restrictions applied inconsistently between different sections of the media. For example, commercial and subscription television broadcasting services were subject to specific foreign ownership limits under the BSA, whereas commercial radio broadcasting services were subject only to the general provisions of the Foreign Acquisitions and Takeovers Act 1975 (Cth); • specific foreign ownership limits were at odds with general Government policies that encourage international competition in other sectors of the economy. 25 It is explained below that the Australian Government’s general stance on foreign investment is that it makes a significant contribution to the development of Australia and should generally be encouraged. 26 The removal of the media-specific foreign ownership restrictions in the BSA would bring the media sector into line with other industries. Of course the countervailing argument is that the media industry is not like other industries, owing to its unique capacity to impact democracy and the political process. 27 23 24

25 26 27

Many of these reasons had already been espoused by the Productivity Commission in an earlier report. See: Productivity Commission, Broadcasting, Report No 11 (2000), Ch 10. Explanatory Memorandum to the Broadcasting Services (Media Ownership) Bill 2006, Regulation Impact Statement 17, p 18; Senator The Hon Helen Coonan, “Reforming Australia’s Media Legislation to Meet The Challenge of a Multi-Media Revolution” (2007) 30(1) University of New South Wales Law Journal 232 at 237. Explanatory Memorandum to the Broadcasting Services (Media Ownership) Bill 2006, Regulation Impact Statement 17, p 18. See [15.510]. See Warren (2007) 30(1) University of New South Wales Law Journal 269 at 273; S Barber, “Foreign Ownership: Meeting the Challenges of Globalisation” (2007) 30(1) University of New South Wales Law Journal 307 at 310-313.

[15.40] 955

Australian Media Law

The Howard Government took the view that any detrimental effects of foreign ownership of the media could be eliminated or alleviated by means other than specific ownership and control restrictions. For example, it maintained that any concerns about foreign ownership based on national security or national interest grounds that may arise in relation to particular investment proposals could be adequately addressed through the national interest test in the Foreign Acquisitions and Takeovers Act 1975 (Cth). Moreover, any cultural problems associated with foreign investment in the broadcasting sector could be surmounted by the Australian content rules which require a certain percentage of Australian programs to be broadcast. 28 In any event, it is often maintained that all media owners will respond to commercial imperatives; accordingly, if consumers demand content of relevance to Australians, the owners will provide it, irrespective of their nationality. A counter argument is that although Australian content rules can address the problem of adverse cultural impact, they cannot ensure that news and current affairs are presented from an Australian perspective, nor impact on decisions regarding which newsworthy events are selected for coverage. The next three sections of this chapter, [15.50]-[15.510] describe the ownership and control restrictions that are currently imposed on the broadcasting media by the BSA and discuss the impact of two pieces of general legislation on media ownership and control – the Competition and Consumer Act 2010 (Cth) and the Foreign Acquisitions and Takeovers Act 1975 (Cth) – as these two statutes have assumed greater importance in relation to media ownership and control following the Howard Government’s 2006 reforms.

Media ownership and control under the Broadcasting Services Act Overview [15.50] Commercial radio and television broadcasting services remain subject to a number of specific rules which are designed to prevent concentration of ownership. These rules restrict the number of broadcasting channels in any single market that a particular media entity is permitted to control and, in the case of television, the extent of the national audience that one organisation is permitted to reach. Before the commencement of the Broadcasting Services Amendment (Media Ownership) Act 2006, the BSA also prohibited persons from controlling combinations of interests in commercial television broadcasting licences, commercial radio broadcasting licences and newspapers in the same licence area. 29 The introduction of these rules in the 1980s forced media companies to choose one of these three forms of media as their primary business. However, these cross-media ownership rules were repealed with effect from 4 April 2007, and the BSA now permits cross-media acquisitions to occur, provided that an appropriate level of media diversity is maintained. As explained in [15.40], the BSA 28

The Australian content rules that apply to commercial and subscription television are outlined in [14.1000]-[14.1150].

29

The Act also imposed a number of complementary cross-media directorship restrictions. For a discussion of the history of the cross-media ownership rules see: J Given, “Cross Media Ownership Laws: Refinement or Rejection?” (2007) 30(1) University of New South Wales Law Journal 258 at 259-260.

956 [15.50]

Chapter 15 – Media Ownership and Control

subjected commercial television and subscription television broadcasting licensees to specific foreign ownership and control restrictions, but these restrictions were repealed by the Broadcasting Services Amendment (Media Ownership) Act 2006. 30 Ownership and control of community broadcasting services is controlled to some extent through the licensing process. Other categories of broadcasting services are not subject to any specific ownership and control rules under the BSA. 31 The upshot is that after the commencement of the Broadcasting Services Amendment (Media Ownership) Act 2006 (Cth), the only service categories that remain subject to specific ownership and control restrictions under the BSA are commercial television and radio broadcasting services and even then, the restrictions imposed by Pt 5 do not apply to commercial radio or television services that do not use the broadcasting services bands or to commercial television licences provided with the use of a satellite. 32 Commercial radio and television broadcasting services are subject to two categories of restrictions: 1.

the “statutory control rules”; 33 and

2.

restrictions on transactions that result in unacceptable media diversity situations and unacceptable three-way control situations.

Irrespective of whether they are subject to ownership and control restrictions under the BSA, all categories of broadcasting services are subject to general competition legislation in the form of the Competition and Consumer Act 2010 (Cth). 34

Statutory control rules for commercial television and radio broadcasting licences [15.60] Most of the statutory control rules imposed on commercial television and radio broadcasters are local in nature and rely on the concept of a licence area. 35 Licence area plans and populations are determined by the Australian Communications and Media Authority (ACMA), thus making it unnecessary to conduct a factual inquiry about geography, actual reception areas or population in order to discover the impact of the rules. 36 Licence areas in 30

The amendments did not alter the requirement in the BSA that a broadcasting licensee must be an Australian company, but this simply means that a foreign owner must establish an Australian subsidiary to hold the licence.

31

Note, however, that the barriers to entry to the subscription television industry are high as a result of Foxtel’s dominance in controlling the major sources of content: F Papandrea, Deregulation and Concentration in Electronic Media (Paper presented at the Communications Policy and Research Forum 2010, Federation Conference Centre, Surry Hills, 15-16 November 2010).

32

BSA, s 50A. See Department of Communications, Information Technology and the Arts, Meeting the Digital Challenge: Reforming Australia’s Media in the Digital Age, p 9.

33

34

This has been described as an “amalgam expression” which captures those ownership and control rules that were not repealed by the Broadcasting Services Amendment (Media Ownership) Act 2006: I McGill, “Cross Media Mergers Under the 2006 Amendments to the Broadcasting Services Act 1992” (2007) 30(1) University of New South Wales Law Journal 280 at 285. See [15.380].

35 36

See [14.200]. M Armstrong, Communications Law and Policy in Australia (1992–), [6080].

[15.60] 957

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densely populated areas frequently overlap. In order to avoid double-counting of the populations of overlapping licence areas when applying the statutory control rules, if more than 30% of the population of a licence area is attributable to an overlap area, or if one licence area is entirely within another licence area, the control restrictions apply to the two licence areas (but not between those licence areas and other licence areas) as if they were one. 37

Ownership and control of commercial television broadcasting licences [15.70] When the BSA was enacted, commercial television was considered the main vehicle for information about news and current affairs, political events and culture, and was consequently regarded as having the greatest ability to influence community views. Commercial television broadcasting services were therefore subjected to the most extensive restrictions on control. This stance is becoming increasingly difficult to justify. The increasing shift to the online environment as a source of both news and entertainment has resulted in a decline in commercial television viewing and a concomitant decline in its influence. This trend is likely to intensify with the roll out of the National Broadband Network, which will facilitate speedy access to content with high bandwidth requirements, such as television programs and movies. 38

Audience reach restriction [15.80] A person must not be in a position to exercise control of commercial television broadcasting licences whose combined licence area populations exceed 75% of the population of Australia. 39 This audience reach limit effectively allows a person to control a commercial television broadcasting licence in each mainland capital city of Australia, but does not effectively permit a metropolitan television network to also control a regional television network. Whilst the audience reach limit has operated to “prevent the extent to which networks can be formed under common ownership”, it “has not stopped the formation of programming networks with a population reach in excess of the limit”. 40 As a result, the same programs are essentially broadcast throughout the country. The audience reach rule was “conceived before nationally available subscription television and internet delivered content were available”. 41 As broadcast content becomes increasingly 37 38

BSA, s 51. Australian Government, National Broadband Network, Key Questions, http://www.nbn.gov.au/content/nbn-keyquestions-and-answers-faqs#q6.

39

BSA, s 53(1). The Seven and Nine networks are currently close to this limit. The main regional owners – WIN Corporation, Prime Media Group and Southern Cross Austereo – although they collectively hold 53 of the 66 allocated commercial television licences, are nowhere near the maximum permissible audience reach: Australian Government, Department of Communications, Media Control and Ownership Policy Background Paper No 3 (June 2014), p 19.

40 41

Papandrea (2006) 24(3) Prometheus 301 at 310. Convergence Review Discussion Paper, Media Diversity, Competition and Market Structure (2011), p 20.

958 [15.70]

Chapter 15 – Media Ownership and Control

obtainable on platforms which have no geographic constraints, “the ongoing effectiveness of the rule is proportionally diminished”. 42 This has led to proposals that the rule should be repealed. 43

One to a licence area restriction [15.90] A person must not be in a position to exercise control of more than one commercial television broadcasting licence in the same licence area. 44 Where an additional licence has been allocated to an existing licensee in a solus licence area under the additional licence regime, the existing licence and the additional licence are treated as one licence, thus ensuring that licensees who provide additional services are not in breach of the “one to a licence area” restriction. 45 In a similar vein, where an additional commercial television licence has been allocated in a two station market, then for the purposes of the control restrictions and the directorship restrictions, the additional licence is disregarded until such time as the person who was in a position to control it at the time of its allocation ceases to be in that position. 46

Datacasting transmitter licence restriction [15.100] A person must not be in a position to exercise control of a commercial television broadcasting licence and a datacasting transmitter licence. 47 This restriction does not prevent commercial television broadcasters from providing a datacasting content service under the BSA using spare transmission capacity on their digital transmission channels, since they do not require a datacasting transmission licence to do this. 48 The restriction does not apply to a Channel B datacasting transmitter licence unless the relevant transmitter(s) is operated for transmitting a datacasting service that is capable of being received by a domestic digital television receiver. 49 The Government considers that where the services on Channel B are not provided to domestic digital television receivers, it is not necessary to exclude commercial television from controlling the supply of such services.

42 43

Convergence Review Discussion Paper, Media Diversity, Competition and Market Structure (2011), p 20. See [15.530].

44

BSA, s 53(2).

45

BSA, s 73. This concession ceases to apply to the licences at any time after they are first held by different persons, whether or not they continue to be so held. The additional licence regime is discussed in [14.550]. BSA, s 73A. See Macquarie Media Holdings Ltd v Australian Communications and Media Authority (2009) 173 FCR 582. BSA, s 54A. There is no reference to a licence area; the restriction applies irrespective of the area served by the licence.

46 47 48 49

See [14.300], [14.1270]. BSA, s 51A. See Supplementary Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Television) Bill 2006, p 7. The national broadcasters are also prohibited from being in a position to control a datacasting transmitter licence (BSA, Sch 6 cl 41), but, for the same reasons, these limitations do not apply to Channel B datacasting transmitter licensees unless the service is capable of being received by a domestic digital television receiver. See [14.1340] for a discussion of Channel B.

[15.100] 959

Australian Media Law

Directorship restrictions [15.110] The BSA imposes several restrictions on the directorships that can be held in companies that control commercial television broadcasting licences. 50 Some of these restrictions complement the audience reach restriction and the “one to a licence area” restriction. Thus a person cannot be a director of a company or companies that are in a position to exercise control of commercial television broadcasting licences whose combined licence area populations exceed 75% of the population of Australia. Likewise, a person must not be a director of two companies that are each in a position to exercise control of a commercial television broadcasting licence if each of those licences has the same licence area. The restrictions also prohibit combinations of directorships and control. Other directorship restrictions complement the prohibition on control of a commercial television broadcasting licence and a datacasting transmitter licence. 51 The BSA provides that nothing in the ownership and control regime invalidates the appointment of a person as a director of a company, thus enabling directors to continue to function in a company that is in breach of the control restrictions. 52

Ownership and control of commercial radio broadcasting licences Two to a licence area restriction [15.120] A person must not be in a position to exercise control of more than two commercial radio broadcasting licences in the same licence area. 53 This restriction allows for a “small degree of economies of scale to be realised in markets where competition is not a concern, but … still protects smaller markets from undue concentration of ownership”. 54 No maximum audience reach restriction is imposed on commercial radio. 55 Moreover, in order to encourage investment and competition in the radio sector there have been no specific restrictions on foreign control since 1992. 56

Restricted datacasting licences during the digital radio moratorium period [15.130] If a commercial radio broadcasting licence was in force immediately before the digital radio start-up day for a licence area, then during the digital radio moratorium period for that licence area, a person must not be in a position to exercise control of the commercial 50 51

BSA, s 55. BSA, s 56A.

52 53

BSA, s 78. BSA, s 54.

54 55

Explanatory Memorandum to the Broadcasting Services Bill 1992 (Cth), cl 54. National and State limits were imposed on radio licences under the Broadcasting Act 1942 but these were never included in the BSA. The absence of specific foreign ownership restrictions in the BSA, coupled with the government’s relaxed approach to foreign ownership and control under the Foreign Acquisitions and Takeovers Act 1975 (Cth), has produced a high level of foreign ownership and control in the radio industry.

56

960 [15.110]

Chapter 15 – Media Ownership and Control

radio broadcasting licence and a restricted datacasting licence. 57 This restriction is designed to allow “new entrants to make use of the digital radio platform for new types of non-radio services called ‘restricted datacasting services’”. 58

Directorship restrictions [15.140] The BSA imposes three restrictions on the directorships that can be held in commercial radio broadcasting licensees. 59 Each restriction complements the “two to a licence area” restriction and prohibits combinations of directorships and control.

Transactions that result in unacceptable media diversity situations and unacceptable three-way control [15.150] The repeal of the cross-media restrictions by the Broadcasting Services Amendment (Media Ownership) Act 2006 60 was accompanied by the introduction of a range of safeguards designed to protect diversity of ownership within licence areas. Primary among them is a prohibition on transactions that would result in an “unacceptable media diversity situation” coming into existence, or, if an unacceptable media diversity situation already exists, a prohibition on transactions that would result in a further reduction of diversity. 61 There is a further prohibition on the acquisition of substantial interests in more than two out of three types of media operations in the same licence area. The result is that the BSA now permits cross-media mergers to occur, provided a sufficient number of separately controlled media groups will remain in the relevant licence area after the merger is completed. 62

Unacceptable media diversity situations: the 5/4 rule [15.160] An “unacceptable media diversity situation” exists in relation to a metropolitan licence area of a commercial radio broadcasting licence if the number of points in the licence area is less than five. 63 A metropolitan licence area is essentially a mainland State capital city and the licence area known as Western Suburbs Sydney RA1. 64 An “unacceptable media diversity situation” exists in relation to a regional licence area of a commercial radio broadcasting licence if the number of points in the licence area is less than four. 65 A regional 57 58

BSA, s 54B. Digital radio is discussed in [14.400]-[14.510]. Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Radio) Bill 2007 (Cth), Item 41.

59 60 61

BSA, s 56. Broadcasting Services Amendment (Media Ownership) Act 2006, Sch 2. See [15.50]. See generally, BSA, Pt 5 Div 5A, Media Diversity.

62

Of course any proposed merger will also have to run the gauntlet of s 50 of the Competition and Consumer Act 2010 (Cth). See [15.370]-[15.490]. BSA, s 61AB(1). The overlapping licence area provision in s 51 that applies in relation to the statutory control limits does not apply to the unacceptable media diversity provisions: BSA, s 61AF. BSA, s 61AA. Western Suburbs Sydney RA1 incorporates much of the Sydney metropolitan area. It was considered that to treat this licence area as a regional licence area, and thereby subject it to the regional content protection measures outlined in Chapter 14, would have been contrary to the policy intention of the legislation. BSA, s 61AB(2).

63 64

65

[15.160] 961

Australian Media Law

licence area is any licence area that is not a metropolitan licence area. 66 The points system is calculated by reference to commercial radio licence areas, as these licence areas more closely reflect the influence of relevant radio services or newspapers in a community than television licence areas, which may be very large and geographically diverse. 67 The number of points is ascertained in accordance with a table contained in s 61AC of the BSA. Item 1 of that table accords one point to a group of two or more media operations – a “media operation” means a commercial television broadcasting licence, a commercial radio broadcasting licence or a newspaper that is associated with the licence area of a commercial television or radio licence 68 – where the same person is in a position to exercise control of each of those media operations and: • if a commercial television broadcasting licence is in the group, more than 50% of the licence area population of the first radio licence area is attributable to the licence area of the commercial television broadcasting licence; • if a commercial radio broadcasting licence is in the group, the first radio licence area is the same as, or is entirely within, the licence area of the commercial radio broadcasting licence; and • if a newspaper is in the group, the newspaper is associated with the first radio licence area. Item 4 accords one point to a group of two or more commercial television broadcasting licences where more than 50% of the licence area population of the first radio licence area is attributable to the licence area of each of those commercial television broadcasting licences and their primary services pass the shared content test vis à vis each other. The latter will be the case if, at a particular time, the program content of at least 50% of the total number of hours of programs broadcast by one service between 6 am and midnight during the six-month period ending at that time was the same as the program content of at least 50% of the total number of hours of programs broadcast by the other service between 6 am and midnight during that time. 69 The ACMA is required to compile and maintain a Register of Controlled Media Groups. 70 The Register is to be maintained by electronic means and must be made available for public inspection on the internet. The object of the Register is to facilitate compliance with the 5/4 rule by identifying the ownership and control of media groups in each licence area. The ACMA enters a media group in the Register by creating a heading for the group, and under that heading, entering the names of the media operations in the group and the name of each controller of those media operations. 71 The Register initially consisted of media groups in 66 67 68

69

BSA, s 61AA. Explanatory Memorandum to the Broadcasting Services Amendment (Media Ownership) Act 2006 (Cth), p 59. BSA, s 61AA. As noted in [15.50], commercial broadcasting licences that do not use the broadcasting services bands and commercial television licences provided by satellite are not included in the definition: s 50A. BSA, s 61AE.

70

BSA, s 61AU.

71

BSA, s 61AV.

962 [15.160]

Chapter 15 – Media Ownership and Control

existence as at 1 February 2007, which was when the Register formally came into existence. 72 Thereafter it includes newly formed media groups. 73 Provision is made for the removal of defunct media groups, 74 and for amendments to the Register where there has been a change of controller or a change of composition of a media group. 75 Generally, only completed transactions can be included in the Register. The legislation also regulates the timing in which the ACMA registers a group. This is important where a number of transactions are taking place in a licence area which, if they were all completed, would give rise to an unacceptable media control situation. In this case, there might be a “race to register”. To address this problem, the Act provides for conditional transactions to be entered on the register. 76 One point is also accorded to each commercial television broadcasting licence, 77 commercial radio broadcasting licence or associated newspaper that is not part of a commonly controlled media group. 78 Individual media operations are not entered in the Register of Controlled Media Groups. This effectively means that the Register does not provide would-be acquirers and targets with accurate information about the total number of points in a licence area. 79 The ACMA has corrected this deficiency by maintaining and publishing a Media Control Database which contains details of all media operations in each commercial radio licence area, whether in a commonly controlled group or independently controlled, and an estimate of the total number of points in each licence area. 80 The statutory control rules must be complied with in order for any of the points in Items 1-5 to be counted. 81 This means either that there is no breach of the statutory control limits, or the ACMA has granted a temporary approval of a breach. 82 The bottom line is that following a transaction – which includes, but is not confined to, cross-media mergers – there must remain no fewer than five separately controlled players in 72

BSA, s 61AY. The information in the Register was based on control notifications that had to be made by all commercial radio and television licensees and associated newspapers under BSA, s 65 (this provision has since been repealed).

73

BSA, s 61AZ. A newly formed media group can be registered only if its coming into existence does not create an unacceptable media diversity situation or an unacceptable three-way control situation or reduce the number of points in a licence area.

74 75

BSA, s 61AZA. BSA, ss 61AZB, 61AZC.

76

BSA, ss 61AZD, 61AZE, 61AZF. For further information see: Australian Communications and Media Authority, Fact Sheet – Media Reform: Register of Controlled Media Groups.

77

In the case of a commercial television broadcasting licence, more than 50% of the licence area population of the first radio licence area must be attributable to the licence area of the commercial television broadcasting licence. BSA, s 61AC Items 2, 3 and 5. Where a commonly owned media group counts for one point, the media operations that make up that group do not individually count as a point, thereby ensuring that the constituent parts of a commonly owned group are not counted twice: Explanatory Memorandum to the Broadcasting Services Amendment (Media Ownership) Act 2006 (Cth), p 59. McGill (2007) 30(1) University of New South Wales Law Journal 280 at 283. Australian Communications and Media Authority, Media Control Database, http://www.web.acma.gov.au/rcmg/ mcdIndex.htm.

78

79 80 81 82

BSA, ss 61AC. BSA, s 61AD. Temporary approvals are discussed in [15.290].

[15.160] 963

Australian Media Law

metropolitan markets and no fewer than four independent players in regional markets. If this is the case, the transaction can occur, subject to compliance with the Competition and Consumer Act 2010 (Cth). The fact that the restrictions are imposed by reference to radio licence areas, even though a transaction may be Australia wide, means that the parties to a merger transaction must consider the impact of the transaction on each affected licence area. 83 The 5/4 points system applies only to the same forms of media that were subject to the cross-media ownership rules in existence prior to 2006. National newspapers, freely distributed local newspapers, magazines, the ABC, the SBS, narrowcasting, subscription and community radio and television broadcasting services and online and mobile media services are not allocated a point and therefore do not constitute a “voice” for the purposes of the “5/4” test. 84 Given that one of the main reasons for the repeal of the cross-media ownership rules was the advent of new forms of media, and therefore new sources of news and opinion, the failure to include these media platforms in the diversity test seems curious. 85 This unequal regulatory treatment is becoming harder to sustain, given the increasing proliferation of online news services. 86 A further criticism is that the 5/4 rule, which is based on platform numbers, treats all operators as equally influential, regardless of their size or perceived influence. 87 For example, to accord one point to a major media conglomerate that owns a daily newspaper, a free-to-air television station and two commercial radio stations in the one market, and one point to a stand-alone radio station with a very small listening audience is said to belie reality. 88 Moreover, in terms of points, a radio station with an all-music format is on a par with a talkback station that deals in news and current affairs. One of the options open to the Government in 2006 was to adopt a qualitative test, such as a media-specific public interest test, rather than the quantitative 5/4 test. While such a test would target “the mergers that matter” in so far as it would identify those mergers that would “result in a profound disruption 83 84

McGill (2007) 30(1) University of New South Wales Law Journal 280 at 282. As explained in [15.180], national newspapers do not have 50% of their circulation in any one licence area and therefore fall outside the definition of an “associated newspaper”. Local free issue newspapers fall outside the definition of “newspaper”. For a discussion of whether services delivered over the National Broadband Network would or should be regulated by these diversity rules see: L Waterson and N Dowsley, “Cold, Dead Hand? Broadcasting Regulation and the Emergence of the National Broadband Network” (2009) 28(1) Communications Law Bulletin 1.

85

Senate Standing Committee on Environment, Communications, Information Technology and the Arts, Parliament of Australia, Broadcasting Services Amendment (Media Ownership) Bill 2006 and Related Bills (2006), [2.121]. A Nielsen survey conducted in 2013 showed that 34% of respondents identified the internet as their primary source of news. The survey results were reproduced in: Australian Government, Department of Communications, Media Control and Ownership, Policy Background Paper (June 2014), p 24. While many news services are just online versions of existing media, there are also a number of new independent sources of online news and opinion, including Crikey and New Matilda. R Jolly, Department of Parliamentary Services (Cth), Broadcasting Services Amendment (Media Ownership) Bill 2006, Bills Digest No 32 of 2006, 10 October 2006, p 18; Communications Law Centre, Content, Consolidation and Clout (2006), p 11. Senate Standing Committee on Environment, Communications, Information Technology and the Arts, Parliament of Australia, Broadcasting Services Amendment (Media Ownership) Bill 2006 and Related Bills (2006), [2.117].

86

87

88

964 [15.160]

Chapter 15 – Media Ownership and Control

to the news culture” of a particular community, 89 the test was rejected by the Government on the ground that, since there are no generally accepted methods of measuring diversity or plurality, it would rely too heavily on the subjective judgment of whoever makes the assessment. 90 It was thought that the lack of transparency in such a test would create uncertainty in the industry and affect public confidence in the objectivity of the system. 91 As anticipated, 92 the points system has led to a greater consolidation of ownership of traditional media in metropolitan and larger regional markets where the proposed 5/4 limit was exceeded. 93 For example, immediately prior to the introduction of the unacceptable media diversity test, Melbourne and Sydney had 11 and 12 major media groups respectively. 94 As at December 2014 they have 9 and 10 points respectively. 95 Nevertheless, the minimum thresholds are still exceeded in all metropolitan markets, which account for over two-thirds of Australia’s population. 96 There is less potential for mergers in regional areas, since 64% of commercial radio licence areas already had four or fewer than four media groups when the 5/4 rule was introduced. 97 Currently, 42% of licence areas are at the minimum floor (regional

89

Communications Law Centre, Content, Consolidation and Clout (2006), p 22.

90 91 92

Explanatory Memorandum to the Broadcasting Services Amendment (Media Ownership) Bill 2006, pp 21-22. Explanatory Memorandum to the Broadcasting Services Amendment (Media Ownership) Bill 2006, p 22. See, for example, Media Entertainment and Arts Alliance, Submission to the Senate Standing Committee on Environment, Communications, Information Technology and the Arts, Broadcasting Services Amendment (Media Ownership) Bill 2006 and Related Bills (2006); Communications Law Centre, Content, Consolidation and Clout (2006); F Papandrea, Submission to the Senate Standing Committee on Environment, Communications, Information Technology and the Arts Inquiry into the Broadcasting Services Amendment (Media Ownership) Bill 2006; Standing Committee on Environment, Communications, Information Technology and the Arts, Parliament of Australia, Broadcasting Services Amendment (Media Ownership) Bill 2006 and Related Bills (2006) Minority Report by Labor Senators; Papandrea (2006) 24(3) Prometheus 301; Warren (2007) 30(1) University of New South Wales Law Journal 269. See also Jolly, “Media Ownership Deregulation in the United States and Australia: in the Public Interest?” (Research Paper No 1, Parliamentary Library, Parliament of Australia, 2007-08), where it was argued that the deregulation of the American media with the passage of the Telecommunications Act 1996 has seen a diminution in the number of media outlets, a consolidation of the power of the major media groups and a decline in independent voices. Major ownership and control changes that have occurred since the 2006 amendments are detailed in Australian Government, Department of Communications, Media Control and Ownership, Policy Background Paper No 3 (June 2014), pp 15-17. Explanatory Memorandum to the Broadcasting Services Amendment (Media Ownership) Bill 2006, pp 34-35; Senate Standing Committee on Environment, Communications, Information Technology and the Arts, Parliament of Australia, Broadcasting Services Amendment (Media Ownership) Bill 2006 and Related Bills (2006), [2.63]. Australian Communications and Media Authority, Media Control Database: Adelaide, Brisbane and Perth have six, eight and seven points respectively. Australian Government, Department of Communications, Media Control and Ownership, Policy Background Paper No 3 (June 2014), pp 17-18.

93

94

95 96 97

Explanatory Memorandum to the Broadcasting Services Amendment (Media Ownership) Bill 2006, p 25; Senate Standing Committee on Environment, Communications, Information Technology and the Arts, Parliament of Australia, Broadcasting Services Amendment (Media Ownership) Bill 2006 and Related Bills (2006), [2.64]-[2.65] A regional market with less than four voices occurs as a result of existing arrangements being grandfathered when the 2006 amendments were introduced: Australian Government, Department of Communications, Media Control and Ownership, Policy Background Paper No 3 (June 2014), p 18.

[15.160] 965

Australian Media Law

areas) and 28% are below it (regional and remote areas). 98 There also remains a possibility of a reduction below the 5/4 limit if an existing media group were to collapse, rather than merge. 99

Unacceptable three-way control [15.170] The 5/4 test is qualified by a rule which essentially prohibits “unacceptable three-way control”. The definition of unacceptable three-way control also uses the relevant commercial radio licence area as the benchmark. Basically, an unacceptable three-way control situation exists in relation to the licence area of a commercial radio broadcasting licence if a person is in a position to exercise control of three traditional media platforms, namely: • a commercial radio broadcasting licence whose licence area is, or is the same as, the “benchmark” commercial radio broadcasting licence area; • a newspaper that is associated with that commercial radio broadcasting licence area; and • a commercial television broadcasting licence, where more than 50% of the licence area population of the commercial radio broadcasting licence area is attributable to the licence area of the commercial television broadcasting licence. 100

Associated newspapers [15.180] The newspapers to which the unacceptable media diversity and unacceptable three-way control rules apply are newspapers in the English language which are published on at least four days each week, provided that 50% or more of the circulation is by way of sale. 101 The definition effectively excludes local free-issue community newspapers and non-English language newspapers. Magazines are also excluded, notwithstanding that many journals exert considerable influence on Australian society, as they are not within the ordinary meaning of newspaper. A newspaper is associated with the licence area of a commercial television or radio broadcasting licence if the name of the newspaper is entered in the Associated Newspaper Register as being associated with the licence area of that licence. 102 The Associated Newspaper Register may be maintained by electronic means and must be made available for inspection on the internet. 103 98

Australian Government, Department of Communications, Media Control and Ownership Policy Background Paper No 3 (June 2014), p 17.

99

100

See M Pusey and M McCutcheon, “The Concentration of Media Ownership in Australia – From the Media Moguls to the Money Men?” (Paper presented at the Communications Policy and Research Forum 2010, Federation Conference Centre, Surry Hills, 15-16 November 2010) for a study which demonstrates that ownership concentration has increased following the 2006 media law changes. BSA, s 61AEA.

101 102

BSA, s 6(1). BSA, s 59(2).

103

BSA, s 59(5), (6).

966 [15.170]

Chapter 15 – Media Ownership and Control

The ACMA must enter a newspaper in the Register as being associated with the licence area of a commercial television broadcasting licence if it is satisfied that at least 50% of the circulation of a newspaper is within the licence area of that licence. 104 National newspapers such as The Financial Review and The Australian are not eligible for inclusion in the Associated Newspaper Register despite their large circulation, as they do not have 50% of their circulation in any one licence area. The position in relation to commercial radio broadcasting licences is different. The ACMA must enter a newspaper in the Register as being associated with the licence area of a commercial radio broadcasting licence if it is satisfied that at least 50% of the newspaper’s circulation is within the licence area of that licence and the circulation of the newspaper within that licence area is at least 2% of the licence area population. 105 The purpose of the latter requirement is to ensure that newspapers which have very limited circulations in comparison with the total population of a commercial radio broadcasting licence area are not subject to the cross-ownership restrictions. This is most likely to occur in regional centres where newspapers serve small population centres within commercial radio licence areas. 106 The 2% population requirement does not apply to the newspaper/commercial television broadcasting licence combination because regional television licences serve much larger markets than regional radio licences. Accordingly, a newspaper that is circulated to only a small percentage of a commercial television licence area could nevertheless serve a significant regional population centre. 107 A newspaper must be removed from the Register if the aforementioned circulation criteria cease to be met. 108 Moreover, under the new regime, the ACMA is empowered to refuse to enter a newspaper in the register, or to remove a newspaper from the register, if it is satisfied that a person carried out a scheme to publish a newspaper for the sole or dominant purpose of ensuring that the number of points in a licence area would increase or be maintained. 109 The purpose of this provision is to prevent newspapers from being established to avoid the operation of the unacceptable media diversity rules. 110

Disclosure of cross-media relationships [15.190] Division 5B of Pt 5 of the BSA subjects commercial radio and television licensees and associated newspapers to certain public disclosure requirements when they report on the business affairs of a cross-held entity. Basically, commercial television broadcasters and associated newspaper publishers have to disclose the existence of the cross-media relationship at the time they broadcast or publish matter that is wholly or partly about the business affairs of a cross-controlled media organisation (the “business affairs disclosure 104

BSA, s 59(3).

105

BSA, s 59(4A).

106 107 108

Explanatory Memorandum to the Broadcasting Services Legislation Amendment Bill 1997 (Cth), Item 2. Explanatory Memorandum to the Broadcasting Services Legislation Amendment Bill 1997 (Cth), Item 2. BSA, s 59(4), (4B).

109

BSA, s 59(4C), (4D).

110

Explanatory Memorandum to the Broadcasting Services Amendment (Media Ownership) Bill 2006, p 58.

[15.190] 967

Australian Media Law

method”). 111 Commercial radio broadcasters have a choice as to how they comply with the disclosure requirements. They can elect to adopt the business affairs disclosure method or they can opt for a “regular disclosure method” which will require them to broadcast cross-media relationships at regular intervals – at least once each day during prime time hours – in a way that will adequately bring the relationship to the attention of a reasonable person. 112 The election must be notified to the ACMA. If no notice is given, the business affairs disclosure method is taken to apply. For broadcasters, compliance with the disclosure requirements is a licence condition. 113 For newspapers, breach is a criminal offence. 114 Material is regarded as being about the business affairs of a cross-controlled media organisation – thereby triggering the disclosure requirements – if, having regard to the nature of the material and the way in which it is presented, it would be reasonable to conclude that one of the objects of broadcasting or publishing it was to promote or otherwise influence members of the public, or a section of the public, to view, listen to or read the matter. 115 Journalistic acknowledgments, advertising material, program guides and material exempted by the Minister are not regarded as material about the business affairs of a cross-held entity. The disclosure requirements are seen as valuable in “providing comfort regarding the impact of media ownership reforms on the accuracy of news and information” 116 and in assuaging concerns “about the potential for conflicts of interest to occur in news reporting and commentary in the event of greater consolidation”. 117 However, they are expressed not to apply to the extent, if any, that they would infringe the implied freedom of political communication. 118

Regional protections [15.200] Provision is made in the BSA for a number of additional licence conditions to be imposed on regional commercial radio and television licensees as a means of addressing any threats to local content and local presence that might be consequential on the dismantling of the cross-media ownership rules. These requirements are discussed in Chapter 14. 119

The concept of control [15.210] Most of the restrictions that are imposed on commercial broadcasting licences and newspapers are not formulated in terms of ownership, but of “being in a position to exercise control” of a licence or a newspaper. This section explains what is meant by this expression. 111 112

BSA, ss 61BB, 61BF. For a newspaper this means that the disclosure must occur in the same edition. BSA, ss 61BC, 61BD, 61BE.

113 114

BSA, Sch 2 cll 7(1)(q), 8(1)(j). BSA, s 61BF(8).

115 116

BSA, s 61BH. Senate Standing Committee on Environment, Communications, Information Technology and the Arts, Parliament of Australia, Broadcasting Services Amendment (Media Ownership) Bill 2006 and Related Bills (2006), [2.16]. Senator The Hon Helen Coonan (2007) 30(1) University of New South Wales Law Journal 232 at 238. BSA, s 61BG. For further information about these disclosure requirements see: Australian Communications and Media Authority, Fact Sheet – Media Reform: Disclosure of Media Interests. See [14.1170]-[14.1220].

117 118 119

968 [15.200]

Chapter 15 – Media Ownership and Control

“Control” is defined in the BSA to include control by means of trusts, agreements, arrangements, understandings and practices irrespective of whether they have legal or equitable force or whether they are based on legal or equitable rights. 120 However, this definition deals only with the manner in which control is acquired; it does not define its content. This is left to Sch 1 of the BSA, which sets out mechanisms to be used in determining whether a person is in a position to exercise control of a licence, company 121 or newspaper, and for tracing company interests. Schedule 1 is divided into four Parts, each of which relates to a different aspect of control.

The legislative essay on control [15.220] Part 1 of Sch 1 consists of a legislative essay which explains, justifies and illustrates the approach taken in the BSA to the question of control. The essay explicitly acknowledges that it is undesirable to attempt to provide rules which will give a definitive answer to the concept of control in all cases. One reason why a prescriptive definition of control is eschewed is that the concept is very complex and difficult to encapsulate. Another reason is that an exhaustive definition focuses on deemed control rather than real capacity to control, meaning that a person who is caught by an exhaustive definition will be treated as being in a position to exercise control, whether or not that person in fact has the potential to control. Further, any attempt to be definitive about what constitutes control is almost certain to encourage the employment of artificial financial and corporate structures for the purpose of exploitation and avoidance. 122 In order to avoid the shortcomings of an exhaustive definition, the BSA provides a flexible means of assessing whether a person is in a position to exercise control of a licence, company or newspaper. This flexible approach requires the question of control to be determined by practical and commercial considerations, rather than by subtle and highly refined legal tests. 123 The focus is therefore on situations and relationships that have the potential to confer real, factual control. These situations include company interests, but also encompass arrangements and agreements between people, customary courses of conduct and personal influence. 124 For the purposes of the BSA, control of a licence can exist even where a person does not have a legally enforceable right to control that licence. 125 The crux is whether a person is in fact in a present position to exercise actual control at any given time. 120 121 122 123

124 125

BSA, s 6(1). Companies other than a licensee company are included in order to catch companies that are interposed between the controller and the licensee company. Explanatory Memorandum to the Broadcasting Services Bill 1992 (Cth), Pt 5. Re News Corp Ltd (1987) 15 FCR 227 at 246, cited with approval in CanWest Global Communications Corporation v Australian Broadcasting Authority (1997) 147 ALR 539 at 559 (Hill J); (1998) 153 ALR 47 at 77 (Full Federal Court). Some of these control mechanisms are outlined in Pt 2 of Sch 1. CanWest Global Communications Corporation v Australian Broadcasting Authority (1997) 147 ALR 539 at 559; (1998) 153 ALR 47 at 81-82 (WP Keighery Pty Ltd v Federal Commissioner of Taxation (1957) 100 CLR 66; Equitycorp Industries Ltd v ACI International Ltd (1986) 10 ACLR 568; National Companies and Securities Commission v Brierley Investments Ltd (1988) 14 NSWLR 273 not followed).

[15.220] 969

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In CanWest Global Communications Corporation v Australian Broadcasting Authority the Full Federal Court held, following Re News Corp Ltd, 126 that the essence of the phrase “in a position to exercise control” means the power to direct or restrain what a company may do on any substantial issue. This means that a person who possesses a power of veto is equally in a position to exercise control as a person who possesses a power to get his or her own will. 127 The absence of definitive rules in relation to control makes it necessary that a body be invested with power to determine whether control exists in a particular situation. This power is vested in the ACMA. The ACMA is given a monitoring role over the broadcasting and datacasting industries, and has flexibility to assess any corporate structure, agreement or association in order to reach an informed conclusion as to whether it confers control on a person. 128 It need not wait for a transaction or other trigger to enable it to inquire into whether a person is in a position to exercise control of a licence, company or newspaper, but may intervene at any time. It can also give binding opinions as to whether a person is in a position to exercise control. 129 Although its approach to control is generally flexible, the BSA does not completely discard a fixed approach to control. In recognition of the fact that company interests are the main indicia of control, the Act supplements its flexible approach by providing that a person who has company interests in a company that exceed 15% is deemed to be in a position to exercise control of that company. This does not mean that control of a company cannot come about through company interests of 15% or less. This could occur if a person “holds company interests of say 10%” but “no other person holds company interests of more than say 2% and those other persons do not act in concert”. 130 It is possible that more than one person may be in a position to exercise control of a licence or a company. 131 This will be the case where more than one person has company interests in excess of 15%, or where control flows through a chain of companies with each company in the chain being in a position to exercise control, or where control is jointly exercised by two or more persons. 132

126 127 128

Re News Corp Ltd (1987) 15 FCR 227 at 241. CanWest Global Communications Corporation v Australian Broadcasting Authority (1998) 153 ALR 47 at 77, 82. Explanatory Memorandum to the Broadcasting Services Bill 1992 (Cth), Pt 5.

129 130

See [15.270]. BSA, Sch 1 Pt 1 cl 1(1).

131 132

BSA, Sch 1 Pt 2 cl 2(4). P Mallam, S Dawson and J Moriarty, Media and Internet Law and Practice (Thomson Reuters, subscription service), [18.6450].

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Rules for deciding who is in a position to exercise control [15.230] Part 2 of Sch 1 contains specific rules for determining when a person is in a position to exercise control of a licence, company or newspaper. The rules reflect the philosophy of the BSA that company interests are only one way of determining whether a person is in a position to exercise control. 133 In determining whether a person is in a position to exercise control of a licence, company or newspaper, the BSA does not consider that person in isolation, but aggregates the interests of that person’s associates. The definition of an associate encompasses a wide range of personal and business relationships. 134 However, these persons are not treated as associates if the ACMA is satisfied that they do not act together in any relevant dealings relating to a licence, company or newspaper, and neither of them is in a position to exert influence over the business dealings of the other in relation to that company, licence or newspaper. 135 This qualification effectively renders the list of associates rebuttable presumptions. 136 Part 2 of Sch 1 lays down several wide-ranging circumstances in which a person will be in a position to exercise control of a licence or a company, none of which are exhaustive. The most obvious case is where the person is the licensee. A person will also be in a position to exercise control of a licence if the person, either alone or together with an associate, is in a position to exercise direct or indirect control of the selection or provision of a significant proportion of the programs broadcast by the licensee 137 (or, in the case of a datacasting transmitter licence or restricted datacasting licence, a significant proportion of the datacasting content), or if the person, either alone or together with an associate, is in a position to exercise direct or indirect control of a significant proportion of the operations of the licensee in providing broadcasting services (or transmitting datacasting services or restricted datacasting services) under the licence. The provision of programs by a person to a licensee under an agreement for the supply of programs is not regarded as conferring program control on the person if the conditions of the agreement relate only to the programs supplied or their promotion. 138 Such affiliation agreements and program syndication has resulted in “fairly homogenous content (ie channels and stations) being available to consumers in any given 133

134

135 136

137 138

For a case study of some of the ways in which control may be acquired see: Australian Broadcasting Authority, Investigation into Control: CanWest Global Communications Corporation/ The Ten Group Ltd Second Investigation (1997). An associate includes a spouse or de facto partner, certain family members, partners, a trustee of a trust of which the person is a beneficiary, a person who acts or who is accustomed, intended or expected to act in accordance with the directions or instructions of the first mentioned person, a related company (where the person is a company), and a company of which the person is in a position to exercise control: BSA, s 6(1), (3). Legal, financial and accounting advisers and employees are not included in the definition. BSA, s 6(1). For discussion and interpretation of the associate provisions see: Australian Broadcasting Authority, Investigation Into Control: Mr Brian Powers, Mr Kerry Packer and Mr James Packer/John Fairfax Holdings Pty Ltd (1999). The meaning of this phrase was considered in: Australian Broadcasting Authority, Investigation Into Control: Prime Television Ltd (1999). BSA, Sch 1 cl 2(2).

[15.230] 971

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market”. 139 Similarly, the provision of datacasting content by a person to a licensee under an agreement for the supply of datacasting content is not regarded as conferring control on the person if the conditions of the agreement relate only to the datacasting content supplied or its promotion and the content supplied is a minority of the datacasting content transmitted by the licensee. 140 A person is in a position to exercise control of a non-licensee company if the person, either alone or together with an associate, is in a position to exercise direct or indirect control of a significant proportion of the operations of the company. Part 2 also covers control of a licensee’s board of directors. A person is regarded as being in a position to exercise control of a licence or a company if the person, either alone or together with an associate, is in a position to veto any action taken by the board of directors of the licensee or company, or to appoint or veto the appointment of at least half of the board of directors of the licensee or company, or to exercise direction or restraint over any substantial issue affecting the management or affairs of the licensee or the company. Control will also arise if a licensee or a company or more than 50% of the directors act or are intended or expected to act, in accordance with the directions, instructions or wishes of the person, the person and an associate acting together or, if the person is a company, the directors of that company. Depending on the circumstances, in determining whether a person is in a position to exercise control of two or more licences, it may be relevant that the licensees have financial relationships with each other, or share resources such as equipment, studios, other production facilities, transmission facilities and human resources. 141 Also relevant is whether the program content of a substantial percentage of the total number of hours of programs broadcast under one licence is the same as the program content of a substantial percentage of the total number of hours of programs broadcast under the other licence. 142 Part 2 contains similar tests for determining whether a person is in a position to exercise control of a newspaper. 143 They include: where the person is the publisher of a newspaper, where the person has secured operational control or control of a significant proportion of the material to be published in the newspaper, or, if the publisher is a company, where the person has secured control of the board. There are two circumstances in which a person is not taken to be in a position to exercise control of a licence, company or newspaper. First, employees of a licensee, a non-licensee company or a newspaper publisher are not regarded as being in a position to exercise control of a licence, company or newspaper purely by virtue of their employment, except through an association with another person. 144 The second exemption relates to authorised lenders and is intended to protect authorised deposit-taking institutions and financial institutions who lend 139

Australian Government, Department of Communications, Media Control and Ownership Policy Background Paper No 3 (June 2014) p 21.

140 141 142

BSA, Sch 1 cl 2(2A), (2B). BSA, Sch 1 Pt 2 cl 2(5)(a), (c). BSA, Sch 1 Pt 2 cl 2(5)(b).

143 144

BSA, Sch 1 Pt 2 cl 3(1), (2). BSA, Sch 1 Pt 2 cll 2(3), 3(3).

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money to media companies in the ordinary course of business from being treated as controllers of the media company or of a licence or newspaper controlled by the media company. 145 The exemption is lost if the authorised lender: prevents a licensee from complying with its licence conditions; controls the selection or provision of any of the programs to be broadcast by a licensee or any of the datacasting content to be transmitted by the licensee or any of the material to be published in a newspaper; or gains control of the board of a licensee or newspaper publisher otherwise than under a loan agreement or an associated agreement or transaction and in the ordinary course of carrying on a business of providing financial accommodation.

Deemed control [15.240] Part 3 of Sch 1 provides the ACMA with a measuring tool to assist it in reaching a decision about control of a company. In many cases, this tool will avoid the need to conduct a factual inquiry into whether a person has program, operational or board control. It provides that if a person has company interests in a company which exceed 15%, that person is regarded as being in a position to exercise control of the company. In applying this test, no account is taken of the interests of the person’s associates. This method of deeming control can also be applied to a chain of companies, so that if a company interest of more than 15% is maintained throughout the chain, the person is regarded as being in a position to exercise control of the last company in the chain, no matter how many companies are interposed. Although Pt 3 does not expressly say so, it is likely that a person would be regarded as being in a position to exercise control of a licensee no matter how many companies are interposed between the person and the licensee, if, at each link, there is de facto control, rather than company interests. 146

Tracing of ownership [15.250] Part 4 of Sch 1 provides a mechanism for tracing company interests through a series of companies to the company which holds the licence. It is referred to as the fractional tracing method. Unlike the deemed control provision, the fractional tracing method takes account of the relative size of company interests. Part 4 provides, in effect, that where a person has company interests in Company X (for example, 30%), and Company X has company interests in Company Y (for example, 10%), that person is deemed to have company interests in Company Y the size of which is ascertained by multiplying the amount of that person’s company interest in Company X by the amount of Company X’s company interest in Company Y (.3 x .1 = .03 or 3%). This fractional method of tracing reduces the person’s company interests in proportion to the number of companies that are interposed between that person and the licensee. The interests traced in this way can be added to determine the 145

146

BSA, Sch 1 Pt 2 cl 4. A media company is a commercial broadcasting licensee, a subscription television broadcasting licensee, an international broadcasting licensee, a datacasting transmitter licensee, a restricted datacasting licensee, a newspaper publisher or a controlling company. Mallam, Dawson and Moriarty, Media and Internet Law and Practice (Thomson Reuters, subscription service), [18.6830].

[15.250] 973

Australian Media Law

person’s company interest in the licensee company. If it exceeds 15%, the person will be deemed to be in a position to exercise control of the licensee company under Pt 3 of Sch 1. The ACMA is not obliged to trace every minor interest. 147

Company interests [15.260] The most common way in which a person comes to be in a position to exercise control is through having company interests. There are four types of company interests that a person can have in a company: shareholding interests, voting interests, dividend interests and winding-up interests. 148 The size of a person’s company interest is measured as a proportion of the total interests of that type in the company. For example, if a person has a 20% shareholding interest in a company, that person has a 20% company interest in that company. If a person has two or more types of company interests, that person’s company interest is the interest which has the greater percentage. 149 A person has a shareholding interest in a company if that person is beneficially entitled to shares in the company, irrespective of whether the legal ownership of the shares is vested in that person. 150 There are a number of situations in which a person will be beneficially entitled to shares, notwithstanding that that person’s name does not appear on the share register as the legal owner. They include instances where the legal owner holds the shares on trust for that person under a fixed trust, where the person has purchased the shares from the legal owner under a specifically enforceable contract of sale, 151 where the person is a mortgagor of shares or where the person is in a partnership and the partnership holds the shares. 152 A person has a voting interest in a company if the person is in a position to exercise control of votes cast on a poll at a meeting of the company. 153 A poll is any single question which may be put. In CanWest Global Communications Corporation v Australian Broadcasting Authority, 154 Hill J held that a person can be in a position to control voting power, and therefore have a voting interest in a company, even if the person does not have a legally enforceable and immediately exercisable right to control voting power. Whether or not a voting interest exists is to be determined by practical and commercial considerations, and it may be that a potential to exercise voting power in the future will suffice. 147 148

149 150 151 152 153 154

BSA, Sch 2 cl 8. BSA, s 6(1). For a discussion of whether economic interests such as debentures and convertible notes give rise to company interests see: Australian Media and Communications Authority, Investigation into the Control of Commercial Radio Broadcasting Licences held by Elmie Investments (2007). BSA, s 6(1). BSA, s 8(1). The extent of the interest is the amount paid on the shares, which includes any premiums paid for the shares: Re News Corporation Ltd (1987) 15 FCR 227. Lysaght v Edwards (1876) 2 Ch D 499; Bunny Industries Ltd v FSW Enterprises Pty Ltd [1982] Qd R 712; R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 31. A partner has a beneficial interest in every asset of the partnership: Canny Gabriel Castle Jackson Advertising Pty Ltd v Volume Sales (Finance) Pty Ltd (1974) 131 CLR 321 at 327. BSA, s 8(2). CanWest Global Communications Corporation v Australian Broadcasting Authority (1997) 147 ALR 539 at 558-559.

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A person has a dividend interest in a company if the person is, or would be if a dividend were declared, beneficially entitled to be paid or credited a dividend by the company. A dividend interest also exists if, under the memorandum and articles of association of the company, a share of any profits of the company is, or may be, paid or credited to the person otherwise than as dividends on shares. 155 A person has a winding-up interest in a company if the person would be entitled to a share of the property of the company if the property were distributed among its members, whether as a result of a winding-up or otherwise. 156 A person may have a voting, dividend or winding-up interest in a company even if the person is not beneficially entitled to shares in the company. 157

Obtaining an opinion on control [15.270] Owing to the fact that the BSA does not define control in an exhaustive or quantifiable manner, it may be very difficult to ascertain whether a particular transaction will place a person in a position to exercise control of a licence, company or newspaper in circumstances that amount to an offence against the Act. In order to give persons a degree of certainty about the consequences of the transactions into which they enter, the ACMA is empowered to give a binding opinion, if requested, as to whether a person is in a position to exercise control of a commercial television or radio broadcasting licence, a datacasting transmitter licence, a newspaper or a company, or would be in such a position if a particular transaction took place, or if a contract, agreement or arrangement were entered into. 158 The details of the proposed transaction, contract, agreement or arrangement must be outlined in the application, and the application must state the applicant’s own opinion as to whether the applicant is, or would be, in a position to exercise control of the relevant licence, newspaper or company. The ACMA is required to provide the applicant with its opinion as soon as practicable. If an opinion has not been given within 45 days, the ACMA is taken to have given an opinion which accords with the applicant’s opinion. If the ACMA is of the opinion that the applicant is not in a position to exercise control of a licence, newspaper or company, neither the ACMA nor any government agency may, while the circumstances relating to the applicant and the licence, newspaper or company remain substantially the same as those outlined in the application, take any action against the applicant on the basis that the person is in a position to exercise control of that licence, newspaper or company. 159 It is unclear whether the requirement that the circumstances remain the same relates only to the applicant’s personal circumstances or whether it includes all circumstances that are capable of affecting control, such as changes in company interests which occur as the result of activities

155 156

BSA, s 8(3). BSA, s 8(4).

157 158

BSA, s 8(5). BSA, s 74.

159

An opinion does not preclude third parties from taking action to enforce the control restrictions.

[15.270] 975

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of other persons. The ACMA is required to publish a copy of an opinion in the Gazette, but not until the transaction has taken place or the contract, agreement or arrangement has been entered into. 160

Enforcement of the ownership and control restrictions [15.280] The ACMA bears primary responsibility for enforcing the ownership and control rules. This section will outline the various ways in which it can respond to a breach of the restrictions. It should also be noted that commercial broadcasting licensees are subject to a condition that their articles of association must contain provisions which are designed to assist in the enforcement of the control restrictions, thereby giving the licensee itself a degree of power to deal with actual or potential breaches. 161 For example, the articles of association must: • provide that a person is not eligible to continue to hold shares in the licensee if holding those shares would place that person or some other person in contravention of the ownership and control restrictions; • empower the licensee to secure the disposal of shares held by a person to the extent necessary to prevent a contravention of the ownership and control restrictions from continuing; • require persons who acquire shares in a licensee to provide the licensee with statutory declarations concerning that person’s eligibility to hold the shares and the capacity in which they are held.

Prior approval of temporary breaches [15.290] Before a transaction takes place or an agreement is entered into that would place a person in breach of the statutory control restrictions a person may apply to the ACMA for a temporary approval of the breach. 162 The ACMA may approve the breach if it is satisfied that it is incidental to the objectives of the transaction or agreement – usually by demonstrating that the breach “is a subsidiary and relatively unimportant element” of the transaction “taken as a whole” 163 – and that the person will take action to ensure that it ceases. If the ACMA approves the breach, it must specify a period of either six months, one year or two years during which action must be taken to ensure that the breach ceases and may also specify the precise action that must be taken. 164 The ACMA is required to respond to an application for temporary approval within 45 days, otherwise it is taken to have approved the breach for a period of two years. Failure to comply with a prior approval notice is an offence. 165 160 161

BSA, s 210. BSA, Sch 2 cll 7(1)(c), 8(1)(c).

162 163 164

BSA, s 67. McGill (2007) 30(1) University of New South Wales Law Journal 280 at 286. A person who has been given a temporary approval notice may apply to the ACMA for a one-off extension of the period for which approval has been given: BSA, s 68. BSA, s 69.

165

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In a similar vein, the ACMA is empowered to give prior approval to a transaction that would result in an unacceptable media diversity situation coming into existence, or, if such a situation already prevails, to a transaction that would reduce the number of points, or to a transaction that would produce an unacceptable three-way control situation. 166 The provision allows organisations that are considering taking certain actions to come forward and obtain some certainty from the regulator before they transact. 167 Prior approval can be granted only if the ACMA is satisfied that the applicant or some other person will rectify the breach and thereby alleviate the unacceptable media diversity or three-way control situation. 168 The ACMA must specify a time period during which such action must be taken. This period must be between one month and two years in respect of an unacceptable media diversity situation, or between one month and 12 months in respect of an unacceptable three-way control situation. 169 The ACMA can also specify the nature of the action that needs to be taken to ensure that the breach is rectified. Breach of a requirement in a prior approval notice is both an offence and a civil penalty. 170 The ACMA has issued a briefing paper which outlines the things to which it will have regard when deciding whether to grant prior approvals. They include the extent to which the approval would be consistent with the objects of the BSA and the “likely effect or impact of any prior approval on other parties who may be seeking to engage in media transactions in the market concerned”. 171 The ACMA can also accept undertakings from the applicant to the effect that specified action will be taken to ensure that an unacceptable media diversity or three-way control situation will not continue beyond a certain date. 172 The regulator has stated that it is more likely to accept undertakings if they include provisions which will bring about a structural outcome to be achieved within a clear and realistic time frame; provide for the independent management of the relevant assets during a divestiture period; and state that the divestiture outcomes are to be achieved contemporaneously with the completion of the transaction rather than subsequent to it. 173 Undertakings are enforceable in Federal Court by virtue of a range of orders, including an order directing compliance with the undertaking, an 166 167

BSA, ss 61AJ – 61AM, 61AMC – 61AMF. Senate Standing Committee on Environment, Communications, Information Technology and the Arts, Parliament of Australia, Broadcasting Services Amendment (Media Ownership) Bill 2006 and Related Bills (2006), [2.50].

168

Unlike the position under s 67, there is no need to demonstrate that the breach is incidental to the transaction. Where the ACMA grants an approval on the basis of the anticipated actions of a third party, it must make this fact known to the applicant. The ACMA can grant a one-off extension of the time for compliance of a maximum of one year for an unacceptable media diversity situation, or up to six months for an unacceptable three-way control situation.

169 170 171 172 173

BSA, ss 61AL, 61AM, 61AME, 61AMF. Australian Communications and Media Authority, Media Ownership – Applications to the ACMA in Relation to Certain Media Transactions (2010). BSA, s 61AS. Provision is made for undertakings to be withdrawn, varied, cancelled and published on the internet. Australian Communications and Media Authority, Media Ownership – Applications to the ACMA in Relation to Certain Media Transactions (2010). See, for example, Australian Communications and Media Authority, “Fairfax Media Undertakes to Divest Ipswich Radio Station” (Media Release 12/2008, 13 February 2008).

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order directing the person to pay to the ACMA the amount of the financial benefit attributable to the breach, or an order directing the person to compensate those who have suffered loss or damage as a result of the breach. 174

Offences [15.300] If a transaction occurs that places a person in breach of the statutory control rules and the person knew, or ought reasonably to have known, that the transaction would produce that result, and the ACMA has not granted a temporary approval of the breach, the person is guilty of an offence if the person was a party to the transaction or was in a position to prevent it from taking place. 175 An offence may be prosecuted at any time, except where the ACMA has given the person in breach a notice to remedy the breach and the time for compliance with the notice has not expired. 176 A person also commits an offence if he or she is a party to a transaction, or is in a position to prevent a transaction from taking place, and the transaction results in an unacceptable media diversity situation or unacceptable three-way control situation coming into existence or a reduction of the number of points in a commercial radio licence area in which an unacceptable media diversity situation already exists. 177 No offence is committed if a prior approval is in force. The same conduct also constitutes a contravention of a civil penalty provision. 178 Alternatively, the ACMA can apply to the Federal Court for an injunction to prevent these transactions from taking place. 179

Notices to remedy [15.310] The ACMA is given a degree of flexibility in dealing with breaches of the statutory control restrictions. Instead of prosecuting a person who is in breach, the ACMA can issue a notice requiring that person to take immediate action to remedy the breach. 180 The ACMA may adopt this course of action if it considers it to be more appropriate than prosecution. This may be the case where prosecution would involve problems of proof or delay. 181 A notice to remedy may be given to the person in breach, or, if that person is not the licensee and the

174

BSA, s 61AT.

175

BSA, s 66. A person is liable to fines of up to 20,000 penalty units if the offence relates to a commercial television broadcasting licence or a datacasting transmitter licence, and 2,000 penalty units if the offence relates to a commercial radio broadcasting licence. Notices to remedy are discussed in [15.310]. BSA, ss 61AG, 61AMA. In each case, a person in breach is liable to a fine of up to 20,000 penalty units.

176 177 178 179 180

BSA, ss 61AH, 61AMB. This means that the ACMA can apply to the Federal Court for a civil penalty order in respect of the contravention. This process is explained in [14.860]. BSA, s 205Q. BSA, s 70.

181

Explanatory Memorandum to the Broadcasting Services Bill 1992 (Cth), Pt 5 Div 8.

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breach is one that can be remedied by the licensee, to the licensee. 182 A notice to remedy cannot be issued while a temporary approval of the breach is in force. The notice to remedy must direct the person or the licensee to take action to remedy the breach within either one month, six months, one year or two years. If the breach was deliberate and flagrant, or if the notice to remedy pertains to a breach which was previously the subject of a temporary approval by the ACMA, a period of one month must be specified. A period of one or two years can be specified only if the ACMA is satisfied that the person breached the control restrictions as a result of the actions of other persons, none of whom are associates of that person. There is a specific acknowledgment in the Act that if a period of one month is specified, the person to whom the notice is given or another person may be required to dispose of the shares or make arrangements that could cause that person considerable financial disadvantage. However, such a result is considered necessary in order to discourage deliberate and flagrant breaches of the control restrictions. Provision is made for a person who has been given a notice to remedy a breach to apply to the ACMA for an extension of the period, unless the period specified in the notice was one month. 183 Failure to take action as required by the ACMA under a notice to remedy constitutes an offence. 184 The power to issue a notice to remedy has been described as controversial, since it empowers the ACMA to compel persons to take certain action without having to prove that the control restrictions have been contravened. 185 The recipient of a notice could seek judicial review, but they would bear the onus of proving that the notice was unlawfully issued due to an error of law or some other ground of judicial review. 186 No review of the factual basis for the issue of the notice is available. If the ACMA is satisfied that an unacceptable media diversity situation or unacceptable three-way control situation exists in relation to a commercial radio broadcasting licence area, the ACMA may give remedial directions to a person for the purpose of ensuring that the situation ceases to exist. 187 These remedial directions may include: a direction requiring the disposal of shares or interests in shares, a direction restraining the exercise of any rights attached to shares or interests in shares, a direction prohibiting or deferring the payment of any sums due to a person in respect of shares or interests in shares held by that person, or a direction requiring any rights attached to shares or interests in shares to be disregarded. A 182

183

A licensee is able to secure the disposal of any shares, the holding of which breaches the control restrictions, by virtue of the provisions in the articles of association which render a person ineligible to hold shares which contravene the control restrictions. BSA, s 71.

184

BSA, s 72.

185

Mallam, Dawson and Moriarty, Media and Internet Law and Practice (Thomson Reuters, subscription service), [18.7350]. Mallam, Dawson and Moriarty, Media and Internet Law and Practice (Thomson Reuters, subscription service), [18.7350].

186 187

BSA, ss 61AN, 61ANA. If an acquirer realises that a transaction will produce an unacceptable media diversity situation or an unacceptable three-way control situation the acquirer is likely to have sought a prior approval from the ACMA. Remedial directions are more likely to be given in circumstances where a breach has occurred as a result of the actions of a third party who has unexpectedly completed an acquisition in that licence area before the acquirer: McGill (2007) 30(1) University of New South Wales Law Journal 280 at 287.

[15.310] 979

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direction cannot have the effect of requiring a registered controller of a registered media group to cease to be in a position to exercise control of any of the media operations in that group except in certain limited circumstances. 188 Remedial directions must specify a time period for compliance, not being longer than two years, or 12 months in the case of an unacceptable three-way control situation. The length of time can vary according to whether the breach was flagrant, in which case a one-month period must be specified, 189 or whether it occurred through the actions of a third party. The ACMA can grant extensions of time for compliance with remedial notices issued in relation to unacceptable media diversity and three-way control situations, but only for a maximum of three months. 190 Breach of a remedial direction is both an offence and a civil penalty. 191

Enforcement tools [15.320] The ACMA cannot enforce the ownership and control restrictions effectively unless it has relevant and current information about the ownership and control of media entities. To ensure that the ACMA is in possession of such information, the BSA imposes certain notification requirements on various media entities and requires the information that is gleaned from compliance with these requirements to be contained in public registers.

Notification requirements [15.330] The BSA requires commercial television and radio broadcasting licensees, datacasting transmitter licensees, restricted datacasting licensees, publishers of associated newspapers and certain other persons to provide the ACMA with regular information pertaining to the control of media assets and directorships. 192 These reporting requirements are intended to ensure that the ACMA is provided with the information it needs in order to monitor and enforce the statutory control limits and to create and maintain the Register of Controlled Media Groups. 193 Non-compliance with these notification requirements is a strict liability offence which attracts considerable financial penalties, irrespective of whether a breach of the control restrictions has occurred. 194 These provisions are also “designated infringement notice provisions”. 195 This means that a person who is reasonably believed to have infringed any one of these provisions can be served with an infringement notice by an authorised member of 188

190

They include instances where the registered controller or another person has failed to comply with a prior approval notice relating to any of the media operations: BSA, s 61AN(4) – (4C). As is the case with the statutory control restrictions, it is acknowledged that detrimental financial consequences may follow if a person is only given a month to dispose of shares or make arrangements. However, such a result is considered necessary in order to discourage deliberate and flagrant breaches of the unacceptable media diversity provision: s 61AN(9). BSA, s 61AP.

191 192 193

BSA, ss 61AQ, 61AR. BSA, ss 63–65B. See [15.160].

194 195

BSA, s 65A. BSA, s 65B.

189

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the ACMA. 196 It is up to the ACMA to decide whether it will deal with a contravention of the notification provisions by way of an infringement notice. The penalty specified in a notice must be a pecuniary penalty equal to 60 penalty units if the person is a commercial television or subscription television broadcasting licensee and 10 penalty units in any other case. 197 If the penalty specified in the infringement notice is paid to the ACMA within 28 days, the person’s liability for the contravention is discharged and no proceedings may be brought against the person in respect of the contravention.

Registers Register of matters under Part 5 [15.340] The ACMA is required to maintain a register of licences allocated under the additional licence regime, information provided by licensees or controllers pursuant to the notification requirements, prior approvals for breaches of the statutory control restrictions and notices to remedy breaches of those restrictions. 198 The purpose of this provision is to facilitate the public accountability of the ACMA in the exercise of its powers in relation to the control restrictions. 199 Accordingly, the Register must be open for public inspection.

Register of Controlled Media Groups [15.350] The ACMA is required to compile and maintain a Register of Controlled Media Groups. 200 This Register has been discussed in [15.160].

Ownership and control of community broadcasting licences [15.360] Unlike commercial broadcasting services, which are subject to specific statutory ownership and control limits, the ownership and control of community broadcasting licences is regulated through the licensing system. 201 When granting a community broadcasting licence that is a broadcasting services bands licence or a temporary community broadcasting licence (which all use the broadcasting services bands), the ACMA must have regard to two matters that pertain to ownership and control. The first is the undesirability of one person being in a position to exercise control of more than one community broadcasting licence that is a broadcasting services bands licence 196

197

Part 14E of the BSA sets out the procedures the ACMA must follow in issuing and administering infringement notices. The ACMA has also issued guidelines regarding how it will exercise these powers: Australian Communications and Media Authority, Guidelines Relating to the ACMA’s Enforcement Powers Under the Broadcasting Services Act 1992 (2011), [6.1]-[6.6], [10.1]-[10.5]. It is because these provisions are areas of regular non-compliance that the ACMA was given this additional flexibility in dealing with breaches: Explanatory Memorandum to the Communications Legislation Amendment (Enforcement Powers) Bill 2006, p 2. BSA, s 205ZA.

198 199 200

BSA, s 75. Explanatory Memorandum to the Broadcasting Services Bill 1992 (Cth), cl 75. BSA, s 61AU.

201

Like all broadcasting services, community broadcasters are also subject to the Competition and Consumer Act 2010 (Cth).

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in the same licence area. 202 The effect of this provision is that one entity – for example, an educational organisation – can have a national or regional network of community licences, but is unlikely to be granted more than one broadcasting services bands licence in the same area. However, there is no absolute ban on control of more than one licence in the same licence area, so there may be situations in which the ACMA will allocate more than one licence in a licence area to the same entity. Further, the restriction relates only to broadcasting services bands licences; the common ownership of a broadcasting and non-broadcasting services bands licence in the same licence area is not expressed to be undesirable. Secondly, the ACMA must have regard to the undesirability of the Commonwealth, a State, a Territory or a political party being in a position to exercise control of a community (or temporary community) broadcasting licence. 203 This reflects concern about the influence which governments and political parties might exert through the control of licences. 204 It is possible that this provision might infringe the implied constitutional freedom of political discussion. The requirement that community broadcasters must continue to represent the community interest that they represented at the time the licence was allocated or last renewed diminishes the likelihood of operational takeovers. 205

Media ownership and control under the Competition and Consumer Act 2010 The Competition and Consumer Act 2010 and subscription television broadcasting licences [15.370] The BSA confers a specific role on the Australian Competition and Consumer Commission (ACCC) in relation to the allocation of subscription television broadcasting licences. Before allocating such a licence, the ACMA must obtain a report from the ACCC, which states the ACCC’s opinion as to whether the allocation of this type of licence to an applicant would constitute a contravention of s 50 of the Competition and Consumer Act 2010 (Cth) (CCA), and whether or not the allocation would be authorised on public interest grounds under the CCA if the applicant had applied for an authorisation. 206 If the ACCC reports that the allocation of a subscription television broadcasting licence to that applicant would contravene s 50 and would not have been authorised, the ACMA cannot allocate the licence to the applicant. 207

202 203

BSA, ss 84(2)(e), 92E(1)(a). BSA, ss 84(2)(f), 92E(1)(b).

204 205

Armstrong, Communications Law and Policy in Australia (1992–), [6455]. BSA, Sch 2 cl 9(2)(b).

206

BSA, ss 96, 97. For the purposes of CAA s 50, the allocation of the licence is regarded as the acquisition by the applicant of an asset of a body corporate. BSA, s 96(5).

207

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The relationship between the Competition and Consumer Act 2010 and the Broadcasting Services Act 1992 [15.380] Services that are not subject to specific ownership and control restrictions under the BSA are nevertheless subject to the CCA. They include: subscription television and radio broadcasting services, subscription television and radio narrowcasting services, and open television and radio narrowcasting services. The relationship between the general provisions of the CCA and the specific ownership and control restrictions that are imposed on commercial radio and television broadcasting services by the BSA is addressed in s 77 of the BSA. That section provides that the ownership and control provisions of the BSA have effect notwithstanding the CCA. In Austereo Ltd v Trade Practices Commission 208 the Full Federal Court rejected an argument that s 77 constitutes the ownership and control regime in the BSA a comprehensive and exclusive code in relation to the ownership and control of commercial broadcasting licences, with the result that an acquisition that does not contravene the BSA cannot contravene the CCA. 209 Rather, the court held that the ownership and control regime in the BSA operates within the setting of other laws with which a licensee must comply. The effect of the Austereo decision is that services that are subject to specific control provisions under the BSA remain subject to the provisions of the CCA. It is therefore possible, for example, that a merger might pass the 5/4 test but fall foul of the merger test in the CCA.

The Competition and Consumer Act 2010 and the print media [15.390] There is no Australian legislation which is specifically directed at diversity of press control. However, the print media are subject to the general provisions of the CCA.

Section 50 of the Competition and Consumer Act 2010 Elements of section 50 [15.400] The provision of the CCA that is most likely to impact on the ownership and control of the broadcasting and print media is s 50. Section 50 prohibits the acquisition of shares or assets by a corporation or a person where this would have the effect, or be likely to have the effect, of substantially lessening competition in any market. It is referred to by the ACCC as the “merger” provision. A market means a market for goods or services in Australia, a State, a Territory or a region of Australia. 210 A market is an economic concept, the boundaries of which are determined by the properties of the product being exchanged (the product market), the geographic area in which the exchange takes place (the geographic market) and the vertical 208

Austereo Ltd v Trade Practices Commission (1993) 41 FCR 1.

209

At the time this decision was handed down, the Court was concerned with the Trade Practices Act 1974 (Cth) which was the predecessor to the Competition and Consumer Act 2010 (Cth). CCA, s 50(6). For a discussion of whether Australia’s merger law gives appropriate consideration to how market definition is applied in the assessment of mergers when merging firms compete in global markets see: Australian Government, Competition Policy Review Final Report (2015), pp 314-321.

210

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stage of production and/or distribution relevant to the particular product and geographical area under analysis (the functional market). 211 Competition can only occur between the same or close substitutes within the geographic area in which the products compete. A market is not a static concept; it can vary over time. Section 50(3) contains a non-exhaustive list of matters which must be taken into account by the ACCC in determining whether an acquisition would have the effect or likely effect of substantially lessening competition in a market. They include: the actual and potential level of import competition in the market, the height of barriers to entry to the market, the level of concentration in the market, the degree of countervailing power in the market, the extent to which substitutes are or are likely to be available in the market and the nature and extent of vertical integration in the market. The standard of proof to be applied to cases under s 50 is yet to be definitively settled by the courts. 212 It has been observed that the ACCC’s assessment of media mergers is forward looking, a future “with or without test” which assesses “the future state of competition with the merger, and without so as to isolate the merger’s impact on competition from other changes”. 213 If a merger contravenes s 50, the Federal Court can make a range of orders on the application of the ACCC or, in some cases, on the application of third parties. They include injunctions to prevent the merger and penalties and divestiture orders if the merger has occurred. The ACCC has issued Merger Guidelines 2008 which outline the analytical framework it will use in assessing whether a merger or acquisition is likely to substantially lessen competition and which include an analysis of the merger factors contained in s 50(3). The Guidelines are applied in a flexible manner, as the ACCC takes a case-by-case approach to merger analysis.

Merger clearances and authorisations [15.410] While it is not compulsory under the CCA for a party to an impending merger to notify the ACCC of the merger before it takes place, the hefty penalties that can be imposed for a breach of s 50 make it advantageous to a party to discover whether the ACCC is likely to regard a merger as one which infringes the provision. There are three mechanisms whereby a party can have a proposed merger or acquisition assessed before it occurs: an informal merger review by the ACCC, a formal merger clearance by the ACCC or an authorisation application to the Australian Competition Tribunal. 214

Informal merger reviews [15.420] The ACCC is able to provide parties to a proposed merger with its indicative view as to whether the merger is likely to infringe s 50 and whether it would be likely to bring proceedings in the Federal Court to restrain the merger. This process operates informally, outside a legal framework. In most cases, an informal opinion is sought by the merger parties, but the ACCC can initiate an informal review in response to information from other sources 211 212

Australian Competition and Consumer Commission, Media Mergers (2006), Attachment One, [30]-[37]. Australian Competition and Consumer Commission v Metcash Trading Ltd (2011) 284 ALR 662.

213

Australian Government, Department of Communications, Media Control and Ownership, Policy Background Paper No 3 (June 2014). For a helpful diagram of these options see: Australian Government, Competition Policy Review Final Report (2015), p 313.

214

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including complainants, other regulatory bodies and media reports. 215 The ACCC can also review a completed merger. The downside of an informal review is that it does not provide the merging parties with protection from legal action by the ACCC or other persons under s 50, although it is highly unlikely that legal action would be taken in respect of a merger that the ACCC did not oppose. 216 There is also no review mechanism or right of appeal. The ACCC will grant an informal clearance if the proposed merger does not raise competition concerns. If the ACCC takes the view that the proposed merger would infringe s 50, the parties may offer an enforceable undertaking to the ACCC under s 87B of the CCA as a means of resolving the ACCC’s concerns about the anti-competitive effects of the merger. If the ACCC does not grant an informal clearance, and the parties do not agree to modify or abandon the acquisition, the ACCC can apply to the Federal Court for an injunction to prevent the merger prior to completion, or seek divestiture or penalties for shares or assets already acquired as part of the merger. 217 The ACCC’s Merger Review Process Guidelines 2006 contain a detailed overview of the ACCC’s analytical approach to informal merger reviews. 218

Formal merger clearances [15.430] A party to a proposed acquisition may apply to the ACCC for a formal merger clearance. 219 The ACCC cannot grant a clearance unless it is satisfied that the acquisition would not have the effect, or be likely to have the effect, of substantially lessening competition. The ACCC can undertake a public consultation process to help it to assess the competitive effects of a proposed acquisition. The ACCC is generally required to make a decision on a clearance application within 40 business days. If no decision is made within this time frame, the application is taken to be refused. The ACCC can grant a clearance, either unconditionally or subject to conditions, or refuse a clearance. If a clearance is granted, neither the ACCC nor any other party may initiate legal action on the basis of an alleged contravention of s 50, provided the acquisition takes place in accordance with the clearance. A clearance therefore provides certainty for businesses that they will not be at risk of legal action because the acquisition is not considered a breach of s 50. 220 If a clearance is refused, s 50 will apply to the acquisition. In order to ensure transparency in the clearance process, the ACCC is required to maintain a merger clearance register which is open to public inspection. 215 216 217

218

219

220

Australian Competition and Consumer Commission, Merger Review Process Guidelines 2006, [3.1]; Australian Competition and Consumer Commission, Informal Merger Review Process Guidelines 2013, [1.9]. Australian Competition and Consumer Commission, Merger Review Process Guidelines 2006, [3.3]. Australian Competition and Consumer Commission, Merger Review Process Guidelines 2006, [3.5]. Third parties can apply to the Federal Court for divestiture and/or damages if they have suffered loss as a result of the merger. However, they cannot apply for an injunction. For the informal administrative process by which the ACCC undertakes assessments see: Australian Competition and Consumer Commission, Informal Merger Review Process Guidelines 2013 (September 2013). See generally: CCA, Pt VII Div 3 Subdiv B, Merger Clearances. A formal clearance can be sought only by the acquirer, not the target, and cannot be granted in respect of an acquisition that has already taken place. Accordingly, the applicant is required to sign an undertaking under s 87B to the effect that the acquisition will not occur whilst the application is being considered. Australian Competition and Consumer Commission, Formal Merger Review Process Guidelines 2008, [6.6].

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If the ACCC refuses to grant an unconditional clearance, or grants a clearance subject to conditions that the applicant finds unsatisfactory, the applicant can apply to the Australian Competition Tribunal for a review of the ACCC’s decision. 221 The Tribunal must make a decision within 30 business days, although provision is made for this period to be extended. The Tribunal must apply the same test as the ACCC. There is no right of appeal in respect of the merits of a Tribunal decision. The ACCC has published Formal Merger Review Process Guidelines 2008 which outline the approach that the ACCC takes in assessing applications for formal clearance and the requirements that must be met by applicants. 222

Merger authorisations [15.440] A third option for a party to a proposed merger is to apply directly to the Australian Competition Tribunal for a merger authorisation. 223 The Tribunal can grant an authorisation if it is satisfied that the acquisition would result, or be likely to result, in such a benefit to the public that it should be allowed to occur, notwithstanding that it would or might contravene s 50 by having the effect or likely effect of substantially lessening competition in a market. 224 An authorisation, unlike a clearance, is therefore an exemption from compliance with s 50 on public benefit grounds. The Tribunal can have regard to any benefits to the public, but must regard the following as public benefits: a significant increase in the real value of exports, a significant substitution of domestic products for imported goods and all other relevant matters relating to the international competitiveness of any Australian industry. 225 The Tribunal can grant the authorisation, with or without conditions, or refuse the authorisation. A decision must generally be made within three months of the application, otherwise the Tribunal is taken to have refused an authorisation. No merits review of the Tribunal’s decision is available, only administrative review by the Federal Court. The Tribunal must keep a merger authorisation register which, subject to confidentiality, must be available for public inspection. 226 If an authorisation is granted, the merging parties are protected from any action being taken under s 50 during the period for which the authorisation is granted. Detailed information regarding the authorisation process is contained in the ACCC’s Formal Merger Review Process Guidelines 2008.

221 222 223

Third parties (including the target) have no right of review. The Formal Merger Review Process Guidelines 2008 operate in conjunction with the Merger Guidelines 2008. See generally: CCA, Pt VII Div 3 Subdiv C, Merger Authorisations.

224 225

CCA, s 95AZH(1). CCA, s 95AZH(2).

226

CCA, s 95AZ.

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The ACCC’s traditional approach to media mergers [15.450] The way in which a market is defined by the ACCC is crucial in determining the extent to which s 50 impacts on mergers involving the broadcasting and print media and, consequently, on the extent to which consolidation in Australia’s media ownership landscape will be permitted to occur. 227 Until 2006, the ACCC regarded the major forms of media – free-to-air television, subscription television, radio and newspapers – as four distinct products, each constituting separate markets with little overlap in content or advertising. 228 The same could be said of online media and mobile phones. As a result, s 50 had very little role to play in maintaining diversity of ownership across the various forms of media. This task was left to the cross-media ownership rules. Within the print media, the ACCC took the view that the geographic coverage of a newspaper is a substantial determinant of competition. Accordingly, the market for capital city daily newspapers has been effectively confined to their respective metropolitan areas. This made it unlikely that two capital city daily newspapers published in different cities would be regarded as being in the same market, even though they may share a reasonable degree of common content. 229 Even where newspapers share the same or overlapping geographic reach, their content can place them in different markets. For example, it is doubtful whether the two national daily newspapers – The Australian and The Financial Review – would be regarded as being in the same market as capital city daily newspapers, as The Australian has less local interest to the cities in which it circulates, whilst The Financial Review is a specialist business/financial publication. 230 This is attested to by the size of the circulations, that of the capital city dailies far exceeding that of the two national newspapers. 231 Likewise, capital city daily newspapers and suburban newspapers are unlikely to be regarded as being in the same market, as their content is markedly different. Suburban newspapers are generally free, generally only published weekly and focus on issues of interest to a highly localised audience. They therefore complement, rather than compete with, the metropolitan dailies. 232 For these reasons, s 50 has not operated to produce a competitive newspaper industry in Australia. In fact, concentration of ownership within the Australian print media is very high. The overwhelming majority of Australia’s capital city daily newspapers and two national daily 227

228 229 230 231 232

Senate Standing Committee on Environment, Communications, Information Technology and the Arts, Parliament of Australia, Broadcasting Services Amendment (Media Ownership) Bill 2006 and Related Bills (2006), [2.78]. Australian Competition and Consumer Commission, Media Mergers (2006), Executive Summary, [73]. This view was also espoused by the ACCC’s predecessor, the Trade Practices Commission. House of Representatives Select Committee on the Print Media, Parliament of Australia, News and Fair Facts: The Australian Print Media Industry (1992), [4.18]. House of Representatives Select Committee on the Print Media, Parliament of Australia, News and Fair Facts: The Australian Print Media Industry (1992), [4.22]. See Audit Bureau of Circulations at http://www.auditbureau.org.au and http://www.roymorgan.com/industries/ media/readership/newspaper-readership. House of Representatives Select Committee on the Print Media, Parliament of Australia, News and Fair Facts: The Australian Print Media Industry (1992), [4.25]-[4.26].

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newspapers are owned by News Ltd or the Fairfax group, giving them in excess of 85% of the total circulation of these newspapers. The high concentration of ownership within the print media is also a reflection of the commercial imperatives which underlie newspaper publishing, which favour monopoly ownership within a market.

The ACCC’s media merger guidelines [15.460] In August 2006, the ACCC released a paper titled Media Mergers which set out a new framework that the ACCC will use to delineate the markets that are relevant to its assessment of cross-media merger proposals. The paper followed the release of the Government’s Discussion Paper – Meeting the Digital Challenge: Reforming Australia’s Media in the Digital Age – which foreshadowed the liberalisation of the ownership and control rules in the BSA (described in [15.50]) and a correspondingly greater role for the CCA in regulating media ownership. 233 The paper emphasises that the framework it establishes is only indicative, and that it cannot state with certainty whether particular media mergers might substantially lessen competition. The Media Mergers paper observed that changes in technology, consumer behaviour, the way in which media are delivered and media content are in the process of altering the nature of competition in media markets. Indeed, the paper concedes that technological convergence (particularly the digitisation of content, which allows a single media outlet to provide consumers with text, audio and moving images 234) has now progressed to the extent that it is no longer feasible for the ACCC to treat the different forms of media as operating in distinct markets. 235 In light of the fact that traditional media boundaries are blurring, and advertising and content is capable of being packaged across a number of delivery platforms, the paper heralds a shift in approach to the definition of a market away from a preoccupation with the delivery mode (that is, away from a focus on the distribution channels) to the actual products that media companies offer (that is, the distributed content). 236 The ACCC has stated that it will consider three main product categories as part of its assessment of a proposed merger: the supply of advertising opportunities to advertisers, the supply of content to consumers, and the acquisition of content from content owners/ 233

234 235

236

The ACCC’s paper was released at the request of the then Minister for Communications, Information Technology and the Arts: Australian Competition and Consumer Commission, Media Mergers (2006), [5]-[6]. G Samuel, “Key Competition Issues in Australia’s Media and Broadcasting Markets” (2007) 30(1) University of New South Wales Law Journal 206 at 211. Australian Competition and Consumer Commission, Media Mergers (2006), Part A. A report published by the ACCC in June 2003 foreshadowed that a change of approach to media markets would be necessary: Australian Competition and Consumer Commission, Emerging Market Structures in the Communications Sector: A Report to the Minister for Communications, Information Technology and the Arts (2003). See also: G Samuel, “Grandad, What’s a Newspaper? The Next Media Revolution” (Paper delivered at Conference, Melbourne Business School, Media Ownership Reform: The 3C’s – Convergence, Competition and Consolidation, 19 May 2006). See Senate Standing Committee on Environment, Communications, Information Technology and the Arts, Parliament of Australia, Broadcasting Services Amendment (Media Ownership) Bill 2006 and Related Bills (2006), [2.86].

988 [15.460]

Chapter 15 – Media Ownership and Control

providers. 237 Other more specific products, such as sports content, classified and display advertising, and the delivery of news, information and opinion, may also be critical when considering particular mergers. 238 The key element when determining whether different media are in the same market for merger analysis is substitution, that is, “the degree to which one type of media is substitutable for other types of media, both for advertisers and consumers”: 239 …. when considering the supply of content to consumers, if the price of one source of content rises, or its quality falls post merger, what are the real alternatives for consumers? Similarly, when considering classified advertising, does online advertising provide a real alternative to print classified advertising and vice versa? 240

Assessing the substitutability of different media is said to be an empirical question. 241 The paper provides some “high level” guidance on how the merger factors in s 50(3) will apply in the media context, 242 and includes a number of case studies on how the framework might be applied in relation to the three aforementioned product categories. 243 The ACCC has also indicated that it will take into account the differing circumstances between urban, rural and regional media markets. 244 Since consumers in regional areas rely more heavily on local suppliers of news and information than their urban counterparts, who have greater access to a variety of media outlets, competition in regional markets may be more vulnerable following a merger. 245 In terms of the time frame for consideration of the competitive effects of a media merger, the ACCC has indicated that it will base its assessment on what the market is likely to look like in the next two or three years, based on hard evidence not hypothetical views of what the future might look like. 246 This means, for example, that media mergers that, on best available

237

238 239 240 241 242 243 244 245

246

Australian Competition and Consumer Commission, Media Mergers (2006), [21]. The former Chairman of the ACCC has stated that there is a fourth key area: the supply of content by content owners to content acquirers: Samuel (2007) 30(1) University of New South Wales Law Journal 206 at 209-210. For an example of how the ACCC dealt with these categories when Fairfax Media Ltd sought to acquire Rural Press Ltd see: Australian Competition and Consumer Commission, Fairfax Media Limited – Proposed Acquisition of Rural Press Limited, Public Competition Assessment, 27 April 2007. Australian Competition and Consumer Commission, Media Mergers (2006), Executive Summary. Samuel (2007) 30(1) University of New South Wales Law Journal 206 at 210. Australian Competition and Consumer Commission, Media Mergers (2006), Executive Summary. Samuel (2007) 30(1) University of New South Wales Law Journal 206 at 214. Australian Competition and Consumer Commission, Media Mergers (2006), Part D. Australian Competition and Consumer Commission, Media Mergers (2006), Part C. Australian Competition and Consumer Commission, Media Mergers (2006), Executive Summary. Compare the ACCC’s response to the proposed acquisition of Rural Press Ltd by Fairfax Media Ltd in 2007, which had competition implications for Newcastle and the Hunter Valley, with its response to the proposed acquisition by News Ltd of the Community Media Group of the Federal Publishing Co in 2007, which concerned metropolitan Sydney: Samuel (2007) 30(1) University of New South Wales Law Journal 206 at 216-217. Australian Competition and Consumer Commission, Media Mergers (2006), Executive Summary.

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evidence, are unlikely to substantially lessen competition should not be hindered on the basis of speculation as to the changes that might be wrought by future technological advances. 247 Example

Foxtel Management Pty Ltd acquisition of Austar United Communications Ltd [15.470] In 2011 the ACCC announced that it would not oppose an acquisition of the Austar subscription television service by Foxtel, after accepting enforceable undertakings from Foxtel that addressed its concerns. The undertakings, which endure for eight years, prevent Foxtel from: acquiring exclusive internet protocol television (IPTV) rights for a range of television program and movie content including more than 60 linear channels; exclusively acquiring any movie delivered on a transactional video-on-demand basis; and acquiring exclusive mobile rights to television programs and movies where these rights are sought by its competitors to combine with IPTV rights. The undertakings do not prevent Foxtel from acquiring exclusive rights to individual sports. As a result of the acquisition, Foxtel is now the only significant provider of subscription television in Australia. 248

Example

Seven Group Holdings/Consolidated Media Holdings [15.480] In October 2012 the ACCC announced that it would oppose a proposed acquisition by Seven Group Holdings (Seven) of the balance of shares that it did not already own in Consolidated Media Holdings (CMH). At the time, Seven owned 25.3% of the shares in CMH and 33% of the shares in Seven West Media (Seven Network). CMH owned 50% of Fox Sports Australia (Fox Sports) and, indirectly, 25% of Foxtel. Seven sought clearance from the ACCC on the basis that it was actively considering acquiring the remaining shares in CMH and asked the ACCC to review a proposal for an acquisition of all of the shares in CMH. The proposed acquisition was rejected by the ACCC on the basis that it would lead to Seven having substantial interests in a major free-to-air network and the largest subscription television company in Australia, as well as a 50% shareholding in the company involved in the acquisition of the rights to the majority of Australian sports that are broadcast by Foxtel. The ACCC concluded that the proposed acquisition would be likely to result in a substantial lessening of competition in the market for free-to-air television services, as it would put the Seven Network in a position of advantage over other free-to-air networks in relation to joint bids and other commercial arrangements with Fox Sports for the acquisition of sports rights. Being in a position to come to such arrangements with Fox Sports would enhance Seven 247 248

Samuel (2007) 30(1) University of New South Wales Law Journal 206 at 212. The information in this example was taken from: Australian Competition and Consumer Commission, ACCC Not to Oppose AUSTAR Acquisition After Undertaking Resolves Concerns, NR 70/12, 10 April 2012.

990 [15.470]

Chapter 15 – Media Ownership and Control Seven Group Holdings/Consolidated Media Holdings cont. Network’s ability to acquire the rights to premium sports, but reduce the ability of its competitors to do so. 249

Section 50 and the non-economic consequences of mergers [15.490] Section 50 is aimed at prohibiting mergers and acquisitions that would have the effect of substantially lessening competition in a market. Competition is fostered in order to prevent the adverse economic effects that result from restrictive trade practices, the most notable one being higher prices. 250 Section 50 is therefore primarily designed to protect people in their capacity as consumers. The problem is that media diversity includes broader considerations of public interest and social utility, not just market concentration in a narrow economic sense. 251 Papandrea notes that: in contrast to an economic market where competition is promoted by substitutability between differentiated products (the less differentiated, the greater the substitutability and thus the better the outcome), in the ideas market, the efficiency of the outcome increases with increasing differentiation among the competing ideas. 252

However, the CCA contains no public interest criteria which permit the ACCC to have regard to the social, cultural and political consequences of mergers and their effect on Australia’s democracy. There is a widely held view that the relaxation of the cross-media rules should have been accompanied by an amendment to the CCA to include a media-specific public interest test along the lines of that recommended by the Productivity Commission in 2000. 253 This recommendation was rejected by the Government on the grounds that a qualitative test is inherently subjective, there being “no generally accepted methods for measuring diversity or plurality, or related parameters such as media concentration or share of voice, across different media markets”. 254 In the absence of such a test, opinions differ over whether the ACCC is entitled to consider the need for diverse sources of news and information when making decisions on mergers in the media sector and, if it is, whether it has the expertise and resources to do so. The Explanatory Memorandum to the Broadcasting Services Amendment (Media Ownership) Bill 2006 suggests that the CCA does not permit the ACCC to consider the 249

250 251

252 253

254

The information in this example was taken from: Australian Competition and Consumer Commission, ACCC to oppose Seven Group Holding’s proposed acquisition of Consolidated Media Holdings, NR 27/12, 11 October 2012. The merger factors listed in s 50(3) are all economic in nature. Senate Standing Committee on Environment, Communications, Information Technology and the Arts, Parliament of Australia, Broadcasting Services Amendment (Media Ownership) Bill 2006 and Related Bills (2006), [2.73]. Papandrea (2006) 24(3) Prometheus 301 at 307. Productivity Commission, Broadcasting, Report No 11 (2000), Ch 10. See also Warren (2007) 30(1) University of New South Wales Law Journal 269 at 277. The United Kingdom has a public interest test for media mergers. Explanatory Memorandum to the Broadcasting Services (Media Ownership) Amendment Bill 2006 (Cth), [37].

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impact on diversity of opinion of transactions in the media sector. 255 However, the ACCC has stated that it will “consider whether a merged media business could exercise market power by reducing the quality of content it provides consumers, which could include reducing the diversity of the content it provides”. 256 Nevertheless, the fact remains that the primary concern of the ACCC is to assess mergers in terms of their impact on competition.

Media ownership and control under the Foreign Acquisitions and Takeovers Act 1975 Foreign investment and the BSA [15.500] As explained in [15.40], prior to the enactment of the Broadcasting Services Amendment (Media Ownership) Act 2006, commercial television and subscription television broadcasting services were subject to specific foreign ownership restrictions under the BSA. These restrictions were repealed by that Act, leaving foreign ownership of the broadcasting media to be entirely regulated by the Government’s foreign investment policy. This has always been the case with the print media. The repeal of the foreign ownership restrictions paved the way for the entrance of new entities into the Australian media industry. 257

The general regulatory regime governing foreign ownership in Australia [15.510] Foreign investment in Australia is regulated by the Foreign Acquisitions and Takeovers Act 1975 (Cth) (FATA), the Foreign Acquisitions and Takeovers Regulations 1989 (Cth), the Foreign Acquisitions and Takeovers (Notices) Regulations 1975 and the Australian Government’s foreign investment policy. 258 The government’s foreign investment policy is contained in Ministerial statements (frequently issued in the form of media releases) and the Department of Treasury’s Australia’s Foreign Investment Policy. The latter document is designed to inform potential investors of the general criteria and special considerations which the Treasurer will take into account when considering foreign investment proposals. The Government’s foreign investment policy does not have legislative force and has, therefore, 255 256 257

258

The Productivity Commission has expressed the same view: Productivity Commission, Broadcasting, Report No 11 (2000), Ch 10. Australian Competition and Consumer Commission, Media Mergers (2006), [12]. See also Samuel (2007) 30(1) University of New South Wales Law Journal 206. The lifting of the foreign ownership and control restrictions saw foreign private equity funds take controlling stakes in two commercial television stations: CVC Asia Pacific in Channel Nine and US private equity fund Kohlberg Kravis Roberts in Channel Seven (Kohlberg Kravis Roberts formed a joint venture with the Seven Network to form the Seven Media Group). In 2009, the Media Entertainment and Arts Alliance reported that all three major commercial television networks were in foreign hands: Secrecy and Red Tape: The State of Press Freedom in Australia 2009 (2009), p 20. Dealings since then have seen Australian entities gain larger stakes in the Seven and Ten networks: see Australian Government, Department of Communications, Media Control and Ownership, Policy Background Paper (June 2014), pp 15-17. The Foreign Investment Policy is available on the Foreign Investment Review Board’s website: http://www.firb.gov.au.

992 [15.500]

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never been subjected to Parliamentary scrutiny or debate. The ultimate responsibility for the administration of FATA and the foreign investment policy rests with the Treasurer, who is advised and assisted by the Foreign Investment Review Board (FIRB). FIRB is an advisory administrative body which has been in existence since 1976. It is not constituted under legislation; in fact, there is no reference to it in the FATA. The attitude of the Australian Government towards foreign investment in Australia is one of encouragement. Foreign investment is valued for its substantial contribution to building Australia’s economy and supporting Australia’s economic growth and prosperity. 259 In particular, investment from other countries “supports existing jobs and creates new jobs, it encourages innovation, it introduces new technologies and skills, it brings access to overseas markets and it promotes competition amongst our industries”. 260 However, the Government’s recognition of the advantages of foreign investment is tempered by an awareness that there are significant community concerns about foreign ownership and investment, and that in certain circumstances foreign investment can be contrary to the needs of the Australian community. For this reason, certain proposals for foreign investment in Australia are subject to prior notification and examination to determine whether they are contrary to the national interest. Proposals by foreign investors to invest in Australia which must be notified and which require prior approval include proposals by a foreign person 261 for the acquisition of a “substantial interest” in an Australian corporation or control of an Australian business 262 whose total issued shares or total gross assets are valued at over $252 million, 263 and proposals for investment in a number of “sensitive sectors” which are singled out for special treatment. The media is declared to be a sensitive sector. 264 The Department of Treasury’s Australia’s Foreign Investment Policy currently provides that all proposals by all foreign interests to invest in the media sector must be notified to the Government and are subject to prior approval under the Government’s foreign investment policy regardless of the value of the investment. 265 Individual investments by foreign interests of less than 5% may be acquired 259 260

Department of the Treasury, Australia’s Foreign Investment Policy (2013). Department of the Treasury, Australia’s Foreign Investment Policy (2013).

261 262

“Foreign person”, is defined in Foreign Acquisitions and Takeovers Act 1975 (Cth), s 5. An individual foreign person is taken to hold a substantial interest in a corporation if the person (and any associates) is in a position to control not less than 15% of the voting power or potential voting power of a corporation or holds interests in not less than 15% of the issued shares in a corporation or would hold interests in not less than 15% of the issued shares if all rights were converted. Two or more persons are taken to hold an aggregate substantial interest in a corporation if they are in a position to control not less than 40% of the voting power or potential voting power of a corporation or hold interests in not less than 40% of the issued shares in a corporation or would hold interests in not less than 40% of the issued shares if all rights were converted: Foreign Acquisitions and Takeovers Act 1975 (Cth), s 9. This figure is indexed annually on 1 January. A higher notification threshold of $1094 million applies to United States, New Zealand, Korean, Japanese and Chilean non-government investors as a result of the following bilateral trade agreements: Australia-United States Free Trade Agreement, the ASEAN-Australia-New Zealand Free Trade Agreement, the Korea-Australia Free Trade Agreement, the Japan-Australia Economic Partnership Agreement and the Australia-Chile Free Trade Agreement. The exception is sensitive sectors, where the $252 million threshold applies. Foreign Acquisitions and Takeovers Act 1975 (Cth), s 17H; Foreign Acquisitions and Takeovers Regulations 1989 (Cth), reg 12; Australia-United States Free Trade Agreement. Countries with whom Australia has a free trade agreement are subject to the same requirement.

263

264 265

[15.510] 993

Australian Media Law

without notification or prior approval. 266 The media sector is defined to mean daily newspapers, television and radio and, includes internet sites that broadcast or represent these forms of media. 267 Section 18 of FATA empowers the Treasurer to prohibit the acquisition of shares or assets, or order the divestiture of shares or assets as the case may be, where the acquisition would give rise to foreign control, or a change in foreign control, and the Treasurer is satisfied that this result would be contrary to the national interest. 268 Although certain proposals must receive prior approval to ensure that they are not contrary to the national interest, there are no published, objective criteria against which FIRB, or the Department of Treasury, considers their merits. The phrases “national interest” or “contrary to the national interest” are not defined in FATA. The Government’s foreign investment policy emphasises that the national interest is assessed on a case-by-case basis, not in accordance with hard and fast rules. Factors that are typically considered when assessing proposals are listed as follows: national security, competition, 269 impact on other Australian Government policies, impact on the economy and the community and the character of the investor. The policy states that investments in enterprises “that are large employers or that have significant market share may raise more sensitivities than investments in smaller enterprises”, although “investments in small enterprises with unique assets or in sensitive industries may also raise concerns”. Although FIRB has stated that “(o)rdinarily a proposal that does not meet the requirements set out in the policy would be regarded as being, prima facie, contrary to the national interest and hence subject to rejection”, the reality is that the overwhelming majority of proposals submitted for examination are approved. 270 The virtual absence of any rejections is cause for concern as to whether the national interest is being effectively protected. Although the power to grant or withhold approval for foreign investment proposals rests with the Treasurer, in the majority of cases the Treasurer acts on advice received from FIRB without further investigation. 271 This has created a community perception that FIRB is both

266

267

Foreign investment in mass circulation national, metropolitan, suburban and provincial newspapers was, at one stage, also subject to specific restrictions. See above n 22. These limits were removed in conjunction with the repeal of the foreign ownership limits in the BSA, thereby bringing all forms of media into line with each other: Explanatory Memorandum to the Broadcasting Services Amendment (Media Ownership) Bill 2006 Regulatory Impact Statement; Senator The Hon Helen Coonan, Minister for Communications, Information Technology and the Arts, “New Media Framework for Australia” (Press Release 68/06, 13 July 2006). Australia’s Foreign Investment Policy.

268

FATA defines control in a different manner to the BSA. See Foreign Acquisitions and Takeovers Act 1975 (Cth), s 9.

269

Although the foreign investment regime is distinct from the ACCC’s role in assessing mergers under Australian law, since the impact of the transaction on competition is a relevant factor when considering the national interest, where competition considerations are relevant to a particular proposal, the FIRB will refer the matter to the ACCC for advice on its assessment: Australian Competition and Consumer Commission, Informal Merger Review Process Guidelines 2013 (September 2013). In 2012-13 none of the 12,731 applications to FIRB were refused: FIRB Annual Report 2012-2013, p ix. This figure does not include withdrawn proposals. A M Millhouse, B T Horrigan and W D Duncan, Foreign Investment in Australia (2003–), [3.70].

270 271

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Chapter 15 – Media Ownership and Control

authoritative and an authority on foreign investment matters. 272 However, the Treasurer’s discretion, as influenced by FIRB, is not completely unbridled. The Federal Court has held that it has jurisdiction to review a decision of the Treasurer to order a divestiture of shareholdings under FATA on the basis that the shareholdings were contrary to the national interest, although the Court was careful to emphasise that the breadth of the concept of national interest qualified the circumstances in which a judicial challenge would succeed. 273 The foreign investment policies and the role of FIRB in their implementation were severely criticised in an interim report handed down by a majority of a Senate Select Committee. 274 The final report of the Select Committee was made to the Government orally on 30 March 1995. The Government responded on 26 September 1995 by rejecting the findings and recommendations of the majority. 275

Future reform The Need for Reform [15.520] Technological developments in the last 25 years have transformed the Australian media environment. These developments include the introduction of subscription television, the commencement of digital broadcasting, the exponential growth of the internet and social media, faster broadband speeds, the emergence of news aggregators and search engines, and catch-up television services. The advent of these new entities and different delivery platforms, many of which circumvent geographic borders, has outflanked the current ownership and control regime in the BSA, which, as explained in this chapter, is focused solely on commercial television, commercial radio and capital city newspapers and predominantly on local geographic areas. While most would agree that the current media ownership and control regime is outdated, there is disagreement as to what should be done to address the situation. One view is that these new forms of media have produced, and will continue to produce, an increase in the number of new media players and a greater diversity of content, sources and opinion, and that this has diluted the influence of the traditional media to such an extent that stringent ownership and control rules are no longer necessary; concerns about particular transactions 272

273

274 275

The First Report of the Senate Select Committee on Certain Aspects of Foreign Ownership Decisions in Relation to the Print Media, Percentage Players: The 1991 and 1993 Fairfax Ownership Decisions (1994), [8.10]. CanWest Global Communications Corporation v Treasurer of the Commonwealth of Australia (1997) 147 ALR 509. Examples of instances where an application for judicial review might succeed include where the Treasurer has made an error of law (such as incorrectly regarding a person as foreign), or has taken into account a matter which is clearly irrelevant to the national interest, or has reached a decision which no reasonable person acting within authority could have made. The First Report of the Senate Select Committee on Certain Aspects of Foreign Ownership Decisions in Relation to the Print Media, Percentage Players: The 1991 and 1993 Fairfax Ownership Decisions (1994). Statement by the Treasurer, the Hon Ralph Willis MP, Government Response to the Reports by the Senate Select Committee on Certain Aspects of Foreign Ownership Decisions in Relation to the Print Media (26 September 1995).

[15.520] 995

Australian Media Law

can be adequately dealt with by general competition law. Others disagree, maintaining that although new forms of media have made inroads into commercial television and radio audiences and daily newspaper readership, 276 it does not necessarily follow that technological convergence will produce a raft of new entrants into the Australian media or generate a greater diversity of content. In fact, many of these new media outlets are owned or operated by the existing media companies. This is true of subscription television 277 and the most frequently accessed online news sites. 278 Indeed, a considerable proportion of the content on online news sites simply duplicate what is available in the traditional media. 279 In the words of Dwyer and Martin: Now one piece of news copy may be duplicated across co-owned print, web, mobile, radio or television outlets, and re-licensed to third party news sites or simply curated by news aggregators. A news agency story may be published verbatim in every subscriber news website across a nation, or the globe, and the increasing use of agency copy is exacerbating a decline in news source diversity (Paterson, 2006). 280

This has spawned an argument that media ownership and control rules should not be dispensed with, but rather, should be extended to non-traditional media.

Attempts at reform [15.530] Reform of the media ownership and control rules has been on successive government reform agendas since 2011. However, significant changes to the current regime are yet to eventuate. The Convergence Review Report, discussed in [14.10], while recommending a general shift to less regulation, found that rules designed to ensure a diversity of ownership and control remained necessary at both a local and a national level, since a “concentration of services in the hands of a small number of operators can hinder the free flow of news, commentary and 276

277

Statistics suggest that Australians are increasingly dependent on the internet as a source of news and current affairs, and report reading newspapers and watching television less often: Australian Communications and Media Authority, 2009-10 Communications Report Series Report 1 – Australia in the Digital Economy: The Shift to the Online Environment (2010). Foxtel, Australia’s dominant subscription television company, is 50% owned by Telstra and 50% owned by Murdoch’s News Corp.

278

T Dwyer, Media Convergence (2010) Ch 2; Australian Government, Department of Communications, Media Control and Ownership Policy Background Paper (June 2014) p 36 (citing Nielsen Market Intelligence). The most popular online news sites are owned and operated by those who control commercial television and newspapers. They include: Nine msn news, the Sydney Morning Herald website smh.com.au, the ABC news website and news sites operated by the Herald Sun, The Age and The Australian: http:// www.roymorganonlinestore.com/News/0944---Google-still-number-one-in-Australia-(1).aspx.

279

Although new sources of news, information and opinion are available with the emergence of blogs and mainstream sites such as Crikey, Newmatilda, Mumbrella and The Conversation, many news sites are just internet versions of newspapers and commercial television stations. Dr T Dwyer and Dr F Martin, “Updating Diversity of Voice Arguments for Online News Media” (2010) 4(1) Global Media Journal Australian Edition 1 at 2, http://www.commarts.uws.edu.au/gmjau/v4_2010_1/dwyer_ martin_RA.html. The authors also explain that the directive functions of search engines such as Google favour the popular sites, thus entrenching their dominance: at 9.

280

996 [15.530]

Chapter 15 – Media Ownership and Control

debate in a democratic society”. 281 However, the Review recommended that the existing rules be altered in a number of significant respects. At the local level, the Review proposed that there be a new “minimum number of owners” rule to ensure that no media operator has a dominant influence in a local market for news and commentary. To achieve this, it recommended that the existing 4/5 rule be updated to take into account all entities (to be called “content service enterprises”) that provide a news and commentary service and have a significant influence in a local market. A new communications regulator should be authorised to provide exemptions from this rule in exceptional circumstances, if satisfied that a transaction will provide a public benefit in a specific local market. The Review also observed that although media convergence has made content readily available nationally, the current regulation is focused primarily on local areas. Accordingly, it recommended that a public interest test should apply to changes in control of content service enterprises of national significance. This public interest test should be administered by the new communications regulator, and would focus on maintaining diversity at a national level. It would complement, not duplicate, the ACCC’s existing mergers and acquisitions powers. Finally, the Review recommended the abolition of the “75 per cent audience reach rule” for commercial television, the “2 out of 3 rule” in one region, the “two-to-a-market” commercial radio rule and the “one-to-a-market” commercial television rule. In 2013, in response to the Finkelstein Report and the Convergence Review Report, the then Labor Government introduced a package of six media reform Bills into Parliament. 282 Only two were enacted 283 and neither of them dealt with media ownership. Had it been enacted, the Broadcasting Legislation Amendment (News Media Diversity) Bill 2013 would have introduced a new Pt 5A into the BSA to deal with news media diversity. This Part would have imposed limits on the ability of companies and individuals to own or control a “registered news media voice” where that ownership or control is likely to result in a lessening of diversity of controllers of registered news media voices. The Bill provided that each of the following is a news media voice: a commercial television, commercial radio or subscription television broadcasting service that provides news or current affairs programs; a subscription television platform; and a print publication and an online service that has news or current affairs content. A news media voice must be registered in the Register of News Media Voices if the size of its audience or customer base exceeds 30% of the average metropolitan commercial television evening news audience. Changes in control of news media voices of national significance would have required the prior approval of the Public Interest Media Advocate (PIMA), a new independent statutory office that would have been established by the Public Interest Media Advocate Bill 2013 to oversee significant media mergers. 284 The PIMA would have assessed proposed transactions involving changes of control of registered news media voices by applying a new public interest 281 282 283 284

Australian Government, Convergence Review, Final Report (2012), p 18. See [14.10] n 19. They were: Broadcasting Legislation Amendment (Convergence Review and Other Measures) Bill 2013 and the Television Licence Fees Amendment Bill 2013. This would have been additional to the ACCC’s power to block mergers that substantially lessen competition under s 50 of the CCA.

[15.530] 997

Australian Media Law

test. It could not approve a change of control unless (1) it would not result in a substantial lessening of diversity of control of registered news media voices or (2) the change of control is likely to result in a benefit to the public and that benefit outweighs the detriment to the public constituted by any lessening of diversity of control of registered news media voices. The PIMA would have been able to accept court-enforceable undertakings from news media voices in relation to the news and current affairs content that they provide and would have had significant powers to deal with unapproved changes of control that breached the Act, including compulsory divestment. In 2014 the Abbott Government put reform of media ownership and control on its agenda. In March 2014, the Minister for Communications spoke publicly about removing key limitations on media ownership and in June 2014 the Department of Communications issued a Policy Background Paper on Media Control and Ownership. This Paper contains “observations and descriptions of possible future arrangements” for discussion purposes only. It did not draw conclusions, make recommendations or commit the Government to particular courses of action. Nevertheless, it did identify a number of shortcomings with the current regime, the most obvious and compelling one being that the existing laws focus solely on commercial radio, commercial television and newspapers in an era where the influence of these media is becoming increasingly diluted. The Paper states that any move to modify the existing rules or introduce new ones requires consideration of two questions: can regulation target news media outlets rather than platforms; and can (and should) online services be incorporated into a regulatory assessment? 285 It signalled the Government’s intention to consider potential reforms to the media ownership and control rules but not before it had consulted extensively with stakeholders. Following a failure to achieve any meaningful agreement between the major media organisations, in August 2014 the Minister for Communications announced that the Government, while not ruling out change, would not introduce a reform package to Parliament until a higher level of consensus is achieved. 286 However, comments made by the Minister in March 2015 indicate that changes to the media ownership and control regime may be back on the Abbott Government’s agenda.

285 286

Australian Government, Department of Communications, Media Control and Ownership, Policy Background Paper (June 2014), p 42. D White, “Communications Minister Malcolm Turnbull: Higher Level of Consensus Needed Between Media Owners Before Cross-Media Ownership Change”, Sydney Morning Herald (online), 21 August 2014 http://www.smh.com.au/business/communications-minister-malcolm-turnbull-higher-level-of-consensusneeded-between-media-owners-before-crossmedia-ownership-change-20140821-106l4l.html.

998 [15.530]

Index A

Aboriginals conduct of proceedings, [2.90] racial vilification because of race or ethnicity, meaning, [9.240]–[9.250] descent groups, [9.230] Absolute privileges — see also Qualified privileges court proceedings, [3.740] complaints, [3.740] nature of proceedings, [3.720] pre-trial communications, [3.740] public policy, [3.740] royal commissions, [3.740] scope of privilege, [3.740] solicitor-client communications, [3.740] tribunals, [3.720] executive communications, [3.750] scope of privilege, [3.750] overview, [3.720] parliament — see Parliamentary privileges parliamentary broadcasts, [4.530] parliamentary papers, [4.70] parliamentary reporting, [4.40]–[4.50] spouse communications, [3.720], [3.760] super-injunctions, role of, [4.60] whistleblowers, [3.740] Access to documents — see Court documents — see Discovered documents — see Freedom of information Advertising — see also Australian Association of National Advertisers alcohol, [13.560] ambush marketing, [13.430] Australian content, [14.1110] bait advertising, [13.300] broadcasting regulation, [14.930]–[14.980] Australian content, [14.1110] codes of practice, [13.500], [13.610] alcoholic beverages, [13.530] children, [13.590] environmental claims, [13.600] food and beverages, [13.580], [13.590] motor vehicles, [13.570] therapeutic goods, [13.550]

complaints, [13.540] consumer protection legislation, [13.20] defences, [13.390]–[13.420] false representations, [13.100]–[13.290] prohibited selling techniques, [13.100], [13.300] remedies, [13.310]–[13.380] election period, [2.100] ban on advertising, [4.600] free speech, [2.100] misleading or deceptive material, [4.620] newspaper inserts, [4.610] environmental claims, [13.600] false representations — see False or misleading representations fast food industry, [13.590] free speech, [13.410] special event restrictions, [13.430] inertia selling, [13.300] medicines and drugs, [13.490] misleading or deceptive — see Misleading or deceptive conduct motor vehicles, [13.570] political broadcasts, [4.640] pyramid selling, [13.300] referral selling, [13.300] regulation, [13.10] self-regulation, [13.500] claims board, [13.540] code of ethics, [13.520], [13.590] codes of practice, [13.550]–[13.610] standards board, [13.530] special events, [13.430] ambush marketing, [13.430] Australian bicentenary, [13.430] Olympic Games, [13.430] statutory restrictions, [13.430] therapeutic goods, [13.490], [13.550] broadcast licence conditions, [14.720] tobacco — see Tobacco advertisements Aircraft filming, photographing or observing from nuisance, [8.840], [8.860] trespass, [8.710] Alcohol advertising codes of practice, [13.560] Alternative dispute resolution defamation disputes, [3.1390] Anti-terrorism law — see also Sedition associating with terrorists, [10.110] confidential sources, [10.100]

999

Australian Media Law Anti-terrorism law — cont detention of journalists, [10.180] ASIOs powers, [10.180] contact with persons, [10.180] false or misleading statements, [10.180] period of detention, [10.180] preventative detention orders, [10.180] production of information, [10.180] unintentional acts, [10.180] detention of persons, [10.160] preventative detention orders, [10.180] documents or records, [10.120], [10.130] defence, [10.120] evidential burden, [10.140] notice to produce, [10.150] financing terrorists, [10.200] freedom of speech, [2.110] overview, [10.10] recruiting terrorists, [10.210] recruit, definition, [10.210] recruitment advertisements, publication, [10.210] support to terrorists, [10.190] terrorist organisations, [10.110] associating with, [10.110] documents connected with, [10.120] provide support, meaning, [10.110] suggested removal of offence, [10.110] unlawful associations, [10.110] attending meetings, [10.110] financing, [10.200] recruitment advertisements, publication, [10.210] Artistic works adaptations, [12.1200] copyright protection, [12.70] definition, [12.90] design, [12.80] moral rights, [12.190] ownership, rights, [12.190] “work of artistic craftsmanship”, [12.90] Australian Association of National Advertisers claims board, [13.540] code of ethics, [13.520] advertising or marketing to children, [13.590] alcoholic beverages, [13.560] children, [13.590] food and beverages, [13.580], [13.590] motor vehicles, [13.570] codes of practice children, [13.590] food and beverages, [13.580] overview, [13.500] self-regulation system, [13.510] standards board, [13.530] Australian Broadcasting Authority — see also Australian Communications and Media Authority commercial radio services, [14.1160]

1000

“cash for comment” inquiry, [14.1160] program standards, [14.1160] review of program standards, [14.1160] Australian Broadcasting Corporation (ABC) anti-hoarding regime, [14.1240] applicable events, [14.1240] compliance with conditions, [14.1240] obligation to accept offer, [14.1240] operation of regime, [14.1240] whole of event, [14.1240] codes of practice, [14.70], [14.950] complaints procedure, [14.1450] datacasting services, [14.70] election broadcasts, [4.590], [4.600] functions and duties, [14.70] political broadcasts, [4.640] regulatory regime, [14.70] Australian Communications and Media Authority (ACMA) appeals from decisions, [14.1420] broadcasting licence conditions, [14.560], [14.810] classification ratings, [14.990] enforcement and remedies for breach, [14.850]–[14.920] examples of conditions, [14.810] transfer and surrender, [14.830] variation or revocation, [14.810] broadcasting services categories, [14.140] applications for opinions, [14.150] clarification or determination, [14.140] restrictions on power to grant, [14.530] codes of practice, [14.950], [14.1370] register of codes, [9.770], [14.950] review of provisions, [14.950] commercial radio standards review, [14.1160] complaints procedure, [14.1430] internet content, [9.730] investigation of complaints, [14.1440] national broadcasters, [14.1450] constitution, [14.1400] content regulation, [9.700], [14.930]–[14.980] local content for regional commercial television, [14.1180], [14.1200] digital dividend planning, [14.1340] digital radio transmission arrangements, [14.450], [14.470], [14.480], [14.500] digital television transmission planning, [14.280] enforcement powers, [14.1380] establishment, [14.1360] functions, [14.1370] codes of practice, [14.1370] internet content, [14.1370] ministerial directions, [14.1370] hearings, [14.1400] confidential sources, [7.650], [14.1410]

A – Index Australian Communications and Media Authority (ACMA) — cont failure to attend, [14.1410] obstruction, [14.1410] power to summon, [14.1410] procedure, [14.1410] internet regulation, [9.730], [14.1370] codes of practice, [9.770], [14.1370] complaints, [9.720], [9.730], [9.740] content regulation, [9.740], [14.1370] filtering, [9.780] industry standards, [9.770] prohibited content, [9.720], [9.740], [14.1280] investigations, [14.1400] disclosure of confidential sources, [7.660]–[7.690] examination of persons, [14.1410] information gathering, [14.1390] procedure, [14.1410] journalists’ privilege, [7.660]–[7.690] media ownership and control, [15.230] enforcement of restrictions, [15.310]–[15.330] opinions on control, [15.270] prior approvals, [15.290] register of controlled media groups, [15.160], [15.350] register of matters, [15.340] membership, [14.1360] overview, [14.40], [14.1350] program standards, [14.940] “prohibited content” and “potential prohibited content” complaints, [9.720] responsibilities, [14.1350] review of decisions, [14.1420] spectrum planning and management alternative uses, [14.230] digital transmission, effect of, [14.160] frequency allotment plans, [14.190] licence area plans, [14.200] planning priorities, [14.180] planning responsibilities, [14.170] planning role, [14.170] reserve capacity, [14.220] technical planning guidelines, [14.210] staffing, [14.1360] Australian Competition and Consumer Commission (ACCC) digital radio licensee obligations, [14.480] media ownership and control, [15.370], [15.490] approach to mergers, [15.450] merger authorisations, [15.440] merger clearances, [15.430] merger guidelines, [15.460]–[15.480] merger reviews, [15.420] non-economic consequences of mergers, [15.490] subscription television licences, [15.370]

Australian content commercial television, [14.1000], [14.1120] advertising, [14.1110] Australian “look and feel”, [14.1040] Australian program, meaning, [14.1040] Australian/New Zealand co-productions, [14.1100] children’s drama, [14.1080] children’s programs, [14.1080] compliance reports, [14.1030] creative control test, [14.1040] first release documentaries, [14.1070] first release dramas, [14.1060] first release quotas, [14.1050]–[14.1070] New Zealand advertisements, [14.1110] New Zealand programs, [14.1100] preschool programs, [14.1090] rationale, [14.1010] Standard 2005, [14.1020] transmission quota, [14.1020] US free trade agreement, [14.1120]–[14.1140] subscription television, [14.1150] annual returns, [14.1150] application of condition, [14.1150] Australian/New Zealand programs, [14.1150] eligible drama programs, [14.1150] expenditure condition, [14.1150] New Zealand programs, [14.1150] pass through providers, [14.1150] US free trade agreement, [14.1120] capped quotas, [14.1130] non-conforming measures, [14.1120] subscription television, [14.1150] transmission quotas, [14.1130], [14.1140] Australian Journalists Association — see Media, Entertainment and Arts Alliance Australian Narrowcast Radio Association (ANRA), [14.950] Australian Press Council — see Press Council Australian Privacy Principles (APPs) application, [8.30] journalism exemption, [8.40] ALRC, recommendations, [8.50] personal information collection, [8.30] use and disclosure, [8.30] Australian Security Intelligence Organisation (ASIO) anti-terrorism laws, [10.160] detention of journalists, [10.160]

1001

Australian Media Law Australian Security Intelligence Organisation (ASIO) — cont staff identities, [10.20] Australian Security Intelligence Service (ASIS) staff identities, [10.20] Australian Subscription Television and Radio Association codes of practice, [14.950] Authorship assignment of copyright, [12.220] communication of ideas, [12.170] employment and contractors, [12.220] “course of employment”, [12.220] freelancers, [12.220] journalists, [12.220] first ownership, [12.210] exceptions, [12.210] joint authorship, [12.180] journalists, [12.170] “mere amensuensis”, and, [12.160] moral rights, [12.190] person taking dictation, [12.160] photographs, [12.160]

B

Bait advertising, [13.300] Blasphemy — see also Religious vilification Australian approach, [9.440] context of material, [9.400] desuetude, [9.440] history, [9.370] multicultural society, and, [9.410]–[9.420] overview, [9.370] rationale, [9.380] religious scope, [9.410] United Kingdom, [9.420], [9.430] test, [9.370], [9.380] threat to community or society, [9.380]–[9.400] Books — see also Classification scheme — see also Copyright imprint requirements, [14.1480] Breach of confidence — see Confidential information Broadcasting licences breach of provisions, [14.840] cancellation of licence, [14.900] class licences, [14.800], [14.810], [14.910], [14.920]

1002

licence conditions, [14.750]–[14.800], [14.890], [14.910] suspension of licence, [14.900] unlicensed services, [14.850]–[14.880] categories of services, [14.60] classification and censorship obligations, [9.700] commercial broadcasting services, [14.520] ACMA’s powers, [14.530], [14.560] additional licence regimes, [14.550], [14.610] broadcasting services bands, [14.530]–[14.540] decision-making power, [14.530] other delivery technology, [14.540], [14.600] price based allocation, [14.530] renewal of licences, [14.820] restrictions on allocation, [14.680]–[14.700] satellite services, [14.560]–[14.570] suitability of applicant, [14.700] community broadcasting services, [14.620] basis of grant, [14.630] broadcasting services bands, [14.630] CTV licences, [14.690], [14.780] incorporation requirements, [14.690] other delivery technology, [14.640] renewal of licences, [14.820] restrictions on allocation, [14.680]–[14.700] suitability of applicant, [14.700] temporary licences, [14.90], [14.650], [14.780], [14.820] conditions, [14.710] ACMA conditions, [9.700], [14.560], [14.810] breach of conditions, [14.890]–[14.920] CTV licences, [14.780] special conditions, [14.720] specific conditions, [14.730] standard conditions, [14.740] subscription television, [14.790] temporary community services, [14.780] therapeutic goods, [14.720] digital dividend, [14.1340] digital radio — see Digital radio multiplex transmitter licence (DRMTL) duration of licences, [14.820] licence area plans, [14.200] ACMA, determination, [14.200] ownership and control — see Ownership and control privilege of ownership, [14.30] promotion of terrorist organisations, [10.300] renewal of licences, [14.820] restrictions on allocation, [14.680] incorporation requirements, [14.690] suitability of applicant, [14.700] satellite licences declared service-deficient area, [14.560]

B – Index Broadcasting licences — cont digital transmission, [14.560]–[14.570] reception certificate, [14.560] regional areas, [14.1180] remote terrestrial licence areas, [14.560] signal deficient areas, [14.560] Viewer Access Satellite Television (VAST), [14.560] Western Australia TV3 licence area, [14.560] statutory licences, [14.570] subscription radio services, [14.100], [14.670] breach of conditions, [14.910], [14.920] narrowcasting services, [14.670] subscription television, [14.100], [14.660], [15.370] conditions on licences, [14.790] restrictions on allocation, [14.680]–[14.700] suitability of applicant, [14.700] transfer and surrender, [14.830] unlicensed services, [14.850] civil penalty orders, [14.860] injunctions, [14.880] prosecutions, [14.850] remedial notices, [14.870], [14.900] X 18+ and R 18+ programs, [14.990] Broadcasting regulation — see also Australian Media and Communications Authority — see also Print media regulation advertising, [14.930] Australian content, [14.1110] anti-hoarding regime, [14.1240] applicable events, [14.1240] compliance with conditions, [14.1240] obligation to accept offer, [14.1240] operation of regime, [14.1240] whole of event, [14.1240] anti-siphoning regime, [14.1230] applicable events, [14.1230], [14.1240] delisting events, [14.1230] multi-channelled digital services, [14.360] operation of regime, [14.1230] reform, [14.1250] relaxation, [14.360] report, [14.1250] sporting events, [14.1250] two-tiered list, [14.1250] types of rights, [14.1230] anti-terrorism, [10.300] application of regime, [14.40] Australian content — see Australian content broadcasting services, [14.50] categories, [14.60]–[14.150] censorship and classification, [9.700] definition, [14.50] exclusions, [14.50]

internet streaming, [14.50] broadcasting services bands, [14.160], [14.170] alternative uses, [14.230] frequency allotment plans, [14.190] licence area plans, [14.200] planning responsibilities, [14.170]–[14.210] reserve capacity, [14.220] technical planning guidelines, [14.210] categories of services, [14.60] applications for opinions, [14.150] clarification of boundaries, [14.140] commercial services, [14.80] community services, [14.90] international services, [14.130] national services, [14.70] open narrowcasting services, [14.120] subscription services, [14.100], [14.110] codes of practice, [14.950] Competition and Consumer Act, [14.970] coverage, [14.950] development, [14.950] enforcement, [14.980] Parliament’s power, [14.950] register of codes, [14.950] commercial broadcasting services, [14.80] Commonwealth’s power, [14.20] community broadcasting services, [14.90] reserved bands, [14.220] temporary licences, [14.90] content regulation, [9.700], [14.930]–[14.980] Australian content, [14.1000]–[14.1160] “cash for comment” inquiry, [14.930], [14.1160] codes of practice, [14.950] commercial radio, [14.1160], [14.1180]–[14.1220] Competition and Consumer Act, [14.970] enforcement, [14.980] local content, [14.1170]–[14.1220] local presence after trigger event, [14.1210] online material, [9.700] Parliament’s power, [14.950] program standards, [14.940] control restrictions — see Ownership and control copyright in broadcasts — see Copyright digital radio — see Digital radio digital television — see Digital television excluded services, [14.50] foreign ownership — see Ownership and control international broadcasting services, [14.130] internet streamed radio and television, [14.450] legislation, [14.20] rationale for regulation, [14.30]

1003

Australian Media Law Broadcasting regulation — cont regulatory policy, [14.40] licence area plans, [14.200] national broadcasting services, [14.70] datacasting services, [14.70], [15.130] duties and functions, [14.70] reserved bands, [14.220] objects of regulation, [14.40] open narrowcasting services, [14.120] commercial radio, and, [14.120] limited appeal, [14.120] limiting factors, [14.120] location, [14.120] special events, [14.120] overview, [14.20] ownership restrictions — see Ownership and control program standards, [14.940] Australian content, [14.1000]–[14.1140] Competition and Consumer Act, [14.970] enforcement, [14.980], [14.1160] Parliament’s power, [14.950] radiofrequency spectrum, [14.160] broadcasting services bands, [14.160]–[14.190] digital transmission, [14.160] rationale for regulation, [14.30] degree of influence approach, [14.30] public opinion, [14.30] role, [14.10] sporting events, [14.1250] subscription radio services, [14.100] narrowcasting services, [14.110] subscription television services, [14.100] anti-siphoning regime, [14.1230] narrowcasting services, [14.110] terrorism, and, [10.300]

C

Cartoons defamation, [3.200] “Cash for comment” inquiry, [14.1160] Censorship — see Classification scheme Children’s television Australian content, [14.1080]–[14.1090] Cigarette advertising — see Tobacco advertising Civil defamation — see Defamation Class actions defamation, [3.410]

1004

Classification scheme books and magazines, [9.640]–[9.650] broadcast media, [9.700] conditions, [14.990] commercial implications, [9.680] Commonwealth law, [9.640], [9.660] community standards, [9.660] computer games, [9.640], [10.290] decision-making, [9.660] internet content, [9.710]–[9.780], [14.990] judicial review, [9.680] overview, [9.640] “prohibited content” and “potential prohibited content”, [9.720] reform, [9.790] refused classification rating, [9.660], [9.790], [10.240]–[10.250], [10.270], [14.990] broadcast licence conditions, [14.990] considerations in determining, [10.240] examples, [10.250]–[10.270] proposed broadening of laws, [10.290] state and territory laws, [9.660] offences under, [9.670] terrorism, and, [9.690], [10.240]–[10.250] refused classification rating, [10.240]–[10.290] X 18+ and R 18+ programs, [14.990] Closed court — see In camera orders Code of ethics (advertising) therapeutic goods, [13.550] Code of ethics (journalist) binding effect, [14.1590] confidential sources, [4.350], [4.480], [7.510] effectiveness, [14.1590] invasion of privacy, and, [8.1170] consequences of breach, [8.1170] level of protection, [8.1170] overview, [14.1580] penalties for breach, [14.1600] preamble, [14.1590] standards, [14.1590] Codes of practice advertising, [13.500], [13.610] alcoholic beverages, [13.560] children, [13.590] environmental claims, [13.600] food and beverages, [13.580] motor vehicles, [13.570] therapeutic goods, [13.550] Australian Broadcasting Corporation, [14.70], [14.950] broadcasting regulation, [14.950] Competition and Consumer Act, [14.970] development of codes, [14.950]

C – Index Codes of practice — cont enforcement of codes, [14.980] matters covered, [14.950] Parliament’s power, [14.950] register of codes, [14.950] datacasting, [14.1310] internet industry, [9.770] invasion of privacy, and, [8.1170] consequences of breach, [8.1170] level of protection, [8.1170] racial vilification, [9.30] Special Broadcasting Service, [14.70], [14.950] Commercial broadcasting services — see also Digital television broadcasting licences, [14.520] ACMA’s powers, [14.530], [14.560] additional licence regimes, [14.550], [14.610] broadcasting services bands, [14.530]–[14.540] classification ratings, [14.990] conditions, [14.740]–[14.770] decision-making power, [14.530] other delivery technology, [14.540], [14.600] price based allocation, [14.530] renewal, [14.820] restrictions on allocation, [14.680]–[14.700] satellite service, [14.560] suitability of applicant, [14.700] cross-media mergers, [15.150]–[15.200], [15.520] cross-media ownership, [15.50] repeal of rules, [14.1190], [15.50] datacasting transmitter licences, [14.1260] foreign ownership, [15.20] overview, [14.80] Commercial radio services broadcasting licences, [14.580]–[14.610] broadcasting service bands, [14.590]–[14.600] conditions, [14.740], [14.750], [14.770] other delivery technology, [14.600] permitted services, [14.550] under-served markets, [14.610] Broadcasting Services (Commercial Radio Current Affairs Disclosure) Standard 2012, [14.1160] “cash for comment” inquiry, [14.1160] digital transmission — see Digital radio ownership and control, [15.60] datacasting restrictions, [15.130] directorship restrictions, [15.140] two to a licence area, [15.120] program standards, [14.1160] advertising standard, [14.1160] compliance investigations, [14.1160] disclosure standard, [14.1160]

review, [14.1160] regional areas, [14.1170]–[14.1220] draft content plans, [14.1220] licence conditions, [14.1190]–[14.1220] local content requirements, [14.1180]–[14.1220] local presence after trigger event, [14.1210] local significance, [14.1180] minimum service standards, [14.1220] review of standards, [14.1160] Commercial television services anti-hoarding regime, [14.1240] applicable events, [14.1240] compliance with conditions, [14.1240] obligation to accept offer, [14.1240] operation of regime, [14.1240] whole of event, [14.1240] anti-siphoning regime, [14.1230] applicable events, [14.1230] delisting events, [14.1230] operation of regime, [14.1230] reform, [14.1250] report, [14.1250] two-tiered list, [14.1250] types of rights, [14.1230] Australian content, [14.1000], [14.1120] advertising, [14.1110] Australian “look and feel”, [14.1040] Australian program, meaning, [14.1040] Australian/New Zealand co-productions, [14.1100] children’s drama, [14.1080] children’s programs, [14.1090] compliance reports, [14.1030] Convergence Review, [14.1010] creative control test, [14.1040] first release documentaries, [14.1070] first release dramas, [14.1060] first release quotas, [14.1050]–[14.1070] New Zealand advertisements, [14.1110] New Zealand programs, [14.1100] preschool programs, [14.1090] rationale, [14.1010] simulcast period, [14.370] Standard 2005, [14.1010] transmission quota, [14.1020] US free trade agreement, [14.1120]–[14.1140] broadcasting licence, [14.520]–[14.550] additional conditions, [14.750], [14.760] allocation, [14.520] broadcasting service bands, [14.520]–[14.540] high definition and standard definition television, [14.520] other delivery technology, [14.540] satellite services, [14.560]–[14.570] standard conditions, [14.740]

1005

Australian Media Law Commercial television services — cont under-served markets, [14.550] copyright protection, [12.120] cross-media mergers, [15.150]–[15.200] cross-media ownership, [15.50] repeal of rules, [14.1190], [15.50] digital transmission — see Digital television ownership and control, [15.60] audience reach, [15.80] datacasting transmitter licences, and, [15.100] directorship restrictions, [15.110] foreign ownership, [15.20], [15.50] one to a licence area, [15.90] regional areas, [14.1170], [14.1180] local content requirements, [14.1180], [14.1200] local presence after trigger event, [14.1210] satellite licences, [14.1180] sporting events, [14.1250] Community broadcasting services broadcasting licences, [14.620] basis of grant, [14.630] broadcasting services bands, [14.630] conditions, [14.780] CTV licences, [14.690], [14.780] incorporation requirements, [14.690] non-renewal, [14.390] other delivery technology, [14.640] ownership and control, [15.50], [15.360] prohibited classifications, [14.990] renewal, [14.820] restrictions on allocation, [14.680]–[14.700] suitability of applicant, [14.700], [14.780] temporary licences, [14.90], [14.650], [14.820] transfer and surrender, [14.830] broadcasting services bands, [14.630] digital transmission, [14.390] overview, [14.90] reserve capacity, [14.220] Compensation — see also Damages defamation, [3.1320] offers to pay, [3.580] Complaints ACMA procedures, [14.1430] investigation, [14.1440] national broadcasters, [14.1450] MEAA procedures, [14.1600] Press Council procedures, [14.1530]–[14.1560] print media, [14.1530] Computer bulletin boards excluded broadcasting services, [14.50]

1006

Computer games classification, [9.640] Computer hackers contempt of parliament, [4.320] defamation, [3.560] Computer programs copyright, [12.90] licensing, [12.230] literary works, [12.90] Concealment orders — see also Non-publication orders — see also Pseudonym orders advantages, [5.90] applications for, [5.110] breach of order, [5.340] case examples, [5.350] consequences, [5.340] person bound by order, [5.340] challenges to orders, [5.310] appeals, [5.300] applications to superior courts, [5.320] prerogative relief, [5.320] standing to challenge, [5.310] timing of hearings, [5.310] confidential information, [5.130] corruption charges, [5.260] courts’ power, [5.100] exercise of power, [5.110] minimum derogation from open justice, [5.250] names of victims, [5.120], [5.570] names of witnesses, [5.120], [5.350] blackmail cases, [5.120], [5.350] extortion, [5.120] police informants, [5.120] non-publication orders, and, [5.150] open justice principle and, [5.90] [5.250] overview, [5.90] pseudonym orders, [5.120], [5.280] rationale, [5.90] statutory provisions, [5.380], [5.570] voir dire, [5.140] Confidential information — see also Confidential sources actions to restrain disclosure, [7.50] jurisdiction, [7.50] opposing, [7.50] criminal contempt, [7.450]–[7.490] elements of offence, [7.450], [7.470] social media, via, [7.490] standard of proof, [7.490] government information, [7.60]–[7.70] unauthorised use, [7.280]–[7.290] identification of information, [7.300]–[7.320] specificity, [7.300] interlocutory injunctions, [7.410]

C – Index Confidential information — cont criminal contempt, [7.450]–[7.490] purpose, [7.410] super-injunctions, [7.410] invasion of privacy, [8.930]–[8.950] quality of confidence, [7.60]–[7.220] United Kingdom, [7.60], [8.520], [8.540] justified disclosure defence, [7.330]–[7.360] duty of confidence, [7.330], [7.360], [7.400] iniquity rule, [7.330]–[7.350] investigative journalism, [7.350] just cause or excuse, [7.330], [7.350], [7.360] protection of public safety, [7.330] misuse, [7.250] detriment, [7.260]–[7.270] threatened or actual, [7.250] obligation of confidence, [7.50], [7.230] contractual obligation, [7.230] fiduciary relationship, [7.230] publication in breach, [7.50] quality of confidence, [7.60]–[7.220] third parties, [7.240] permanent injunctions, [7.420] prior disclosures, [7.80] authenticity of information, [7.170]–[7.190] extension of knowledge, [7.220] extent of disclosure, [7.110], [7.120] internet publications, [7.190] limited disclosures, [7.140]–[7.160] new things constructed from, [7.220] parliamentary records, [7.220] personal information, [7.180], [7.420] public figures, [7.180], [7.210] relative secrecy, [7.110]–[7.130] revival of knowledge, [7.220] transitory publication, [7.120]–[7.130] veracity of source, [7.170]–[7.190] privacy rights, and, [7.60], [7.240] invasion of privacy and, [8.520], [8.930]–[8.950] reasonable expectation, [8.550] public domain, [7.80]–[7.210] public interest considerations, [7.280] quality of confidence, [7.60] domestic confidences, [7.60] government information, [7.60]–[7.70] husband and wife, [7.60] personal secrets, [7.60] prior disclosures, [7.80]–[7.220] privacy, and, [7.60] remedies for breach, [7.370] account of profits, [7.440] damages, [7.430] interlocutory injunctions, [7.410] permanent injunctions, [7.420] proper plaintiff, [7.380]–[7.400] super-injunctions, [7.410] Spycatcher case, [7.90]–[7.100] third parties, [7.240]

legal professional privilege, [7.240] overhearing information, [7.240] telecommunications, [7.240] unauthorised use, [7.240] unauthorised use, [7.250] detriment, [7.260] government information, [7.280]–[7.290] whistleblower protection, [7.500] statutory provisions, [7.500] WikiLeaks, [7.500] Confidential sources accessing or disclosing, [7.10] code of ethics, [4.350], [4.480], [7.510] common law position, [7.510], [7.520], [7.530] conflict of duty, [7.510] discretion to grant immunity, [7.520] privilege, and, [7.510] defamation actions, [7.580] application of rule, [7.580] pre-trial discovery orders, [7.610] rationale for rule, [7.580] special circumstances, [7.580] disclosure by journalists, [7.510]–[7.640] freedom of political communication, [7.570], [7.610] investigative proceedings, disclosure in, [7.680] newspaper rule, [7.530], [7.580] defamation actions, [7.580] pre-trial discovery orders, [7.610] overview, [7.10], [7.510] presumption of non-disclosure, [7.660]–[7.690] pre-trial discovery orders, [7.580], [7.590]–[7.620] professional confidential relationship privilege, [7.650] evidence, and, [7.650] reform, [7.650] protected confidence, [7.650] refusal to disclose, [4.350]–[4.360], [7.510], [7.540] case examples, [7.550]–[7.570] contempt of court, [6.60], [7.510], [7.610] contempt of parliament, [4.350]–[4.360], [4.480] discretion to grant immunity, [7.520] duty to the law, and, [7.510] privilege, and, [7.510] public interest, [7.510] statutory reform, [7.650]–[7.690] statutory protection, [7.660]–[7.690] ACMA hearings, [14.1410] exempt proceedings, [7.690] New Zealand, [7.660] non absolute, [7.670] professional confidential relationship privilege, [7.650]

1007

Australian Media Law Confidential sources — cont United Kingdom, [7.660] terrorism laws, [10.100] tribunal proceedings, disclosure in, [7.690] Constitution contempt of parliament, [4.240] free speech, [2.10], [2.70], [2.90] United States, [2.80], [2.90] freedom of political communication, [2.90] corporate power, [2.100] defamation defence, [2.90] democracy, [2.90], [2.100] electors, [2.90] insult-based laws, [2.90] judicial branch of government, [2.90] limitations, [2.90] parliamentary privilege, [3.730], [4.170] philosophical justifications, [2.100] political advertising, [2.100] relevant sections, [2.90] representative government, [2.90] states’ legislative power, [2.90] United States, contrast, [2.90] parliamentary privilege, [3.730], [4.170] tobacco advertising ban, [13.440], [13.460] United States, [2.80], [2.90] clear and present danger defence, [2.80] First Amendment, [2.80] Consumer protection legislation accessorial liability, [13.360] advertising agents, [13.410] adverse publicity orders, [13.370] ancillary orders, [13.340] Commonwealth, [13.20] defences, [13.390]–[13.400] interviewees, [13.420] media safe harbour, [3.1420], [3.1450], [13.410]–[13.420] publisher’s defence, [13.390]–[13.400] false representations — see False or misleading representations freedom of speech, and, [13.20] misleading conduct — see Misleading or deceptive conduct overview, [13.20] pecuniary penalties, [13.350] compensation, and, [13.350] deterrence, purpose, [13.350] relevant factors, [13.350] publisher’s defence, [13.390]–[13.400] media safe harbour, [3.1420], [3.1450], [13.410]–[13.420] remedies, [13.310] ancillary orders, [13.340] corrective advertisements, [13.370] damages, [13.330] disclosure orders, [13.370] injunctions, [13.320]

1008

pecuniary penalties, [13.350] public warning notices, [13.380] selling techniques, [13.100] prohibited techniques, [13.300] states and territories, [13.20] Contempt of court aborted trials, [6.960] administration of justice, [6.20], [6.40], [6.790] breach of confidence, [7.490] elements of offence, [7.490], [7.470] standard of proof, [7.490] civil contempt, [6.20] criminal, distinction, [6.20] sanctions, [6.20] common law, [6.10] concealment orders, [5.110], [5.150], [6.30] complainant and witness names, [5.120] countervailing public interest, [5.120] confidential sources, [6.60], [7.510], [7.540], [7.550] coronial inquests, [6.50] costs, [6.950] court documents, [5.680] criminal contempt, [6.20] breach of confidence, [7.450]–[7.490] civil, distinction, [6.20] forms of, [6.30] media, and, [6.30] object of proceedings, [6.20] penalties, [6.20], [6.950] criminal proceedings, [6.100] adjournment, [6.100] Attorney-General, [6.90] Director of Public Prosecutions, [6.90] institution of proceedings, [6.90] jury trials, [6.100] summary procedure, [6.100] discovered documents, [5.760] forums protected by, [6.40] committees of inquiry, [6.50] coronial inquests, [6.50] inferior courts, [6.40] royal commissions, [6.50] superior courts of record, [6.40] Supreme Court, [6.40] in camera orders, [5.340], [6.30] injunctions, [6.950] internet, publication, [6.160] defamation cases, [6.160] innocent dissemination, defence, [6.160] Internet content providers (ICHs), [6.160] Internet service providers (ISPs), [6.160] multiple publication rule, [6.160] “passive publication”, [6.160] “positive publication”, [6.160] search engines, liability, [6.160] jury deliberations, [5.820], [6.30]

C – Index Contempt of court — cont post-trial disclosures, [5.820] publishers, [5.820] liability for contempt broadcast of material, [6.70] confidential sources, [6.60] internet, [6.70] publication of material, [6.70] royal commissions, [6.80] tribunals, [6.80] non-publication orders, [5.340], [5.370], [6.30], [6.790] overview, [6.10], [6.20] penalties, [6.950] considerations, [6.960] costs, [6.950] fines, [6.950] imprisonment,[6.950] injunctions, [6.950] pending proceedings — see Sub judice contempt pre-trial discovery orders, [7.610] royal commissions, [6.50] appointment by Crown, [6.80] appointment by statute, [6.80] liability for contempt, [6.80] scandalising contempt, [6.810], [6.840] boundaries of offence, [6.840] elements of offence,[6.840] fair comment defence, [6.930] free speech, and, [6.830] freedom of political communication, [6.940] impropriety or impartiality attacks, [6.830], [6.890]–[6.920] jurisdiction, [6.810] right to criticism, [6.830] scurrilous abuse, [6.830], [6.840]–[6.880] summary procedure, [6.100] time of offence, [6.840] sub judice contempt — see Sub judice contempt televising court proceedings, [5.610] tribunals, [6.50] liability for contempt, [6.80] types of contempt, [6.20], [6.30] Contempt of parliament attempts to influence members, [4.400]–[4.440] Australian Capital Territory, [4.300] breach of parliamentary privilege, [4.200] referral of breach, [4.200] comments to media, via, [4.420], [4.430] Commonwealth Parliament, [4.230], [4.240] declaration of powers, [4.240] deterring witnesses, [4.490] reflecting on house or member, [4.390] unauthorised disclosures, [4.480] conduct constituting, [4.320]

attempts to influence members, [4.400]–[4.440] bribery, [4.400] categories, [4.320] deterring witnesses, [4.490] dissemination of threats, influence or pressure, [4.420]–[4.440] false or perverted reports, [4.420], [4.450]–[4.470] freedom of political communication, [4.500] misconduct, [4.330]–[4.360] reflecting on House or member, [4.370]–[4.390] unauthorised disclosures, [4.480] courts’ role, [4.210] criminal offences, [4.210] criticisms of approach, [4.200] criminal offences, and, [4.200] misconduct, [4.340] definition, [4.200] false or perverted reports, [4.450] right to control reports, [4.470] freedom of political communication, [4.500] difficulties in application, [4.500] House of Commons, [4.220] review recommendations, [4.220] improper threats, influence or pressure, [4.420]–[4.440] media statements, use of, [4.420], [4.430] misconduct, [4.330] confidential sources, [4.360] criminal offence, as, [4.350] disorderly conduct, [4.330] power to summon, [4.350] New South Wales, [4.230], [4.250] nature of power, [4.250] penal jurisdiction, [4.250] Northern Territory, [4.310], [4.390] deterring witnesses, [4.490] unauthorised disclosures, [4.480] overview, [4.190], [4.200] parliamentary powers, [4.230] Australian Capital Territory, [4.300] colonial parliaments, [4.230] Commonwealth, [4.240] House of Commons, [4.220] New South Wales, [4.250] Northern Territory, [4.310] power to summon, [4.350] Queensland, [4.260] South Australia, [4.270] Tasmania, [4.280] Victoria, [4.270] Western Australia, [4.290] Queensland, [4.260] examples of contempt, [4.320] reflecting on House or member, [4.370], [4.390] Commonwealth Parliament, [4.390] examples of comments, [4.380], [4.390] seditious libel, [10.40], [10.50]

1009

Australian Media Law Contempt of parliament — cont unnamed members, [4.390] South Australia, [4.270], [4.390] statutory limitations, [4.200] Tasmania acts of contempt, [4.320] unauthorised disclosures, [4.480] committee recommendations, [4.480] Commonwealth Parliament, [4.480] identifying source of disclosure, [4.480] impediment to work, [4.480] in camera evidence, [4.480] repercussions of disclosure, [4.480] Victoria, [4.270], [4.390] Western Australia, [4.290] acts of contempt, [4.320] specific powers, [4.290] witnesses, deterring, [4.490] statutory offences, [4.490] Content regulation — see also Australian content codes of practice, [14.950] Competition and Consumer Act, [14.970] coverage, [14.950] development, [14.950] enforcement, [14.980] Parliament’s power, [14.950] register of codes, [14.950] internet — see Internet program standards, [14.940] Competition and Consumer Act, [14.970] enforcement, [14.980] Parliament’s power, [14.950] sources of regulation, [9.710], [14.930] Control of media — see Ownership and control Copyright artistic works — see Artistic works assignment, [12.230] use, access or reproduce, [12.230] Australian copyright law, [12.50] Berne Convention, signatories, [12.50] first published in Australia, [12.50] overseas content, [12.50] “qualified person”, [12.50] authorship — see Authorship compilations, [12.100] control of access, [12.10] copyright symbol, [12.40] creative and media industries, [12.10] creative commons, [12.240] duration, [12.130] extension, [12.150] expiration, [12.150] filming or photographing — see Filming or photographing formal considerations, [12.40]

1010

idea/expression dichotomy, [12.20] joint authorship, [12.180] licensing, [12.230] computer programs, [12.230] creative commons, [12.240] express or implied, [12.230] “share-alike”, [12.240] literary works — see Literary works material form, requirement, [12.20] mechanical or derivative rights, [12.120] musical works — see Musical works originality, requirement, [12.100] compilations, [12.100] skill, labour and judgment, [12.100] “sufficient intellectual effort”, [12.100] overview, [12.10] ownership, rights, [12.200] internet, communication, [12.200] permitted uses, [12.400] collecting societies, [12.420] creative commons licences, [12.420] fair dealing, [12.410] “home copying” exception, [12.420], [12.430] media and creative industries, [12.410] statutory licences, [12.420] public domain, [12.150] expiration of copyright, [12.150] registration, [12.40] reproduction of material, [12.10] sale of copyright, [12.230] scope of protection, [12.20] slogans and headlines, [12.90] statutory categories, [12.60] merit, relevance, [12.90] subject matter other than works, [12.120] broadcasts, [12.120] cinematograph films, [12.120] duration of copyright, [12.140] mechanical or derivative rights, [12.120] published editions, [12.120] sound recordings, [12.120] subsistence, [12.60] works, [12.60] artistic works, [12.70] dramatic, [12.70] literary, [12.70] musical, [12.70] Copyright infringement accounts of profits, [12.340] authorisation, [12.360] sanctioned, approved or countenanced, [12.360] “common stock of knowledge”, and, [12.30] damages, [12.340] delivery up, [12.340] digital piracy, [12.350] end-user licences, [12.370] facilitation of infringement, [12.390] Internet service provider, liability, [12.350]

C – Index Copyright infringement — cont movies, [12.380]–[12.390] music files, [12.370] fair dealing defence, [12.410] media and creative industries, [12.410] students, [12.410] independent creation and copying, [12.280], [12.290] injunctions, [12.340] listing data in phone book, [12.110] musical works, [12.270] objective similarity and copying, [12.260], [12.280] qualitative assessment, [12.300], [12.310], [12.320] subconscious copying, [12.280], [12.290] substantiality, [12.300], [12.310] undoubted degree of similarity, [12.290] objective similarity and copying, [12.260] assessment, [12.260] subconscious copying, [12.280] permitted uses and defences, [12.400] collecting societies, [12.420] creative commons licences, [12.420] fair dealing, [12.410] “home copying” exception, [12.420], [12.430] media and creative industries, [12.410] statutory licences, [12.420] remedies, [12.340] substantiality, [12.300] qualitative assessment, [12.300] television programs, [12.330] substantiality, [12.330] unauthorised copying and broadcasts, [12.330], [12.430] Coronial inquests contempt, [6.50] contemptuous publications, [6.260], [6.570]–[6.600] Corporations defamation actions, [3.520] damages, [3.1320] disclosure of confidential information, [7.400] media control — see Ownership and control Court documents — see also Discovered documents access to documents, [5.660], [5.670] commencement of proceedings, [5.680] contempt, and, [5.680] court orders, [5.670] discretionary access, [5.680] non-parties, by, [5.50], [5.680], [5.690] open justice, and, [5.50], [5.660], [5.670], [5.680], [5.690], [5.700] pre-trial stage, [5.680]

reform, [5.690] restricted material, [5.700] statutory provisions, [5.680], [5.690]–[5.700] committal proceedings, [5.660] common law status, [5.670] Court Information Act 2010 (NSW), [5.690], [5.700] electronic records, [5.710] esearching, [5.710] hand-up briefs, [5.560] overview, [5.560] public record, whether, [5.50] witness statements, [5.560] committal proceedings, [5.560] Court proceedings absolute privilege, [3.740] complaints, [3.740] nature of proceedings, [3.720] pre-trial communications, [3.740] public policy, [3.740] royal commissions, [3.740] scope of privilege, [3.740] solicitor-client communications, [3.740] tribunals, [3.720] camera recording, [5.600]–[5.630] changing attitudes, [5.620] legal perspective, [5.610] media’s position, [5.610] prejudice, and, [5.620] statutory provisions, [5.610] technological advances, [5.610] committal proceedings, [5.560] concealment orders — see Concealment orders contempt — see Contempt of court defamation defences,[3.740] absolute privilege, [3.740] fair and accurate reports, [3.790], [3.810] fair and accurate reports, [3.790], [3.810], [3.820] sub judice contempt, [6.760] uniform defamation legislation, [3.820] filming, [5.600]–[5.630] in camera proceedings — see In camera orders internet publications tendency to prejudice or interfere, [6.230] interrogatories, [5.770] juries — see Jury trials media access, [5.20], [5.700] tweets and text-based reporting, [5.640] non-publication orders — see Non-publication orders online, [5.50] open justice principle — see Open justice parliamentary records, use in, [4.80], [4.170] absolute prohibitions, [4.90]

1011

Australian Media Law Court proceedings — cont administration of justice, [4.90] criminal proceedings, [4.80] legislative intervention, [4.90] limited purposes, [4.80] miscarriage of justice, [4.90] submissions or inferences, [4.80] pending proceedings — see Sub judice contempt photographing, [5.600]–[5.630] qualified privilege, [3.790], [3.810] recording, [5.590] judicial attitude, [5.620] reports of proceedings, [3.280], [6.760] “alleged” or “allegedly”, use, [3.280] civil litigation, [3.280] comments on proceedings, [6.760] fair and accurate reports, [3.790], [3.810], [3.820], [6.760] public interest, [6.760] sub judice contempt, [6.760] tablets and mobile wireless devices, presence of, [5.640] tape recordings, of, [5.30], [5.590] courts’ powers, [5.590] permission to tape, [5.590] tweets and live text based communications, [5.640] witnesses — see Witnesses Crime instructional material, [2.90] Criminal contempt — see Contempt of court Criminal defamation — see also Defamation common law offence, [3.1470] deceased persons, [3.490], [3.1470], [3.1510] defamatory matter, [3.1470] defences, [3.1520] publishers, [3.1530] truth, [3.1470] intention, [3.1470] knowledge of publication, [3.1470] overview, [3.1470] private prosecutions, [3.1470], [3.1500] publication, [3.1490] permanent form, [3.1470], [3.1500] rationale for offence, [3.1470] statutory offences, [3.1470], [3.1480] deceased persons, [3.490], [3.1470], [3.1510] defences, [3.1520], [3.1530] penalties, [3.1540] private prosecutions, [3.1500] publication, [3.1490] slander, [3.1500] truth, [3.1470]

1012

Criminal libel — see Criminal defamation

D

D notice system, [10.30] Damages breach of confidence, [7.430] consumer protection legislation, [13.330] defamation, [3.1320] aggravated damages, [3.1340] calculation of damages, [3.1330] exemplary damages, [3.1350] failure to apologise, [3.1340] mitigation, [3.1360] negligence, [3.1340] punitive damages, [3.1350] purpose of damages, [3.1320] trading companies, [3.1320] nuisance, [8.850] racial vilification, [9.360] trespass, [8.720]–[8.740] Datacasting services Channel A, [14.1340] Channel B, [14.1340] characteristics, [14.1260] technological aspects, [14.1260] charging regime, [14.300] codes of practice, [14.1310] conditions, [14.1300] content, [14.1280], [14.1290] audio content condition, [14.1280] genre conditions, [14.1280], [14.1290] permissible content, [14.1290] program guides, [14.740] prohibited content, [14.1280] datacasting service licences, [14.1270], [14.1340] application restrictions, [14.1260] breach of provisions, [14.1320] qualified entities, [14.1270] remedies for breach, [14.1320] datacasting transmitter licences, [14.1270] definition, [14.1260] digital television, [14.1260] overview, [14.1330] permissible content, [14.1290] genre conditions, [14.1290] program standards, [14.1310] prohibited content, [14.1280] audio content condition, [14.1280] genre conditions, [14.1280] rationale, [14.1260] regulation, [14.10] “restricted”, [14.1260] Defamation — see also Injurious falsehood absolute privilege, [3.720] court proceedings, [3.740]

D – Index Defamation — cont disciplinary board, [3.740] executive communications, [3.750] parliamentary papers, [4.70] parliamentary privilege, [3.730], [4.40], [4.180] parliamentary reporting, [4.40]–[4.50] spouse communications, [3.720], [3.760] super-injunctions, [4.60] whistleblowers, [3.770] aggravated damages, [3.1340] falsity, [3.1340] maximum amount, [3.1340] “alleged” or “allegedly”, use, [3.280] alternative causes of action, [3.1400] alternative dispute resolution, [3.1390] apologies, [3.580], [3.590] express or implied admissions, and, [3.630] failure to apologise, [3.1340] mitigation of damages, [3.1360] prominence in publication, [3.600]–[3.610] cartoons or caricatures, [3.200] cause of action, [3.310] multiple places of publication, [3.480] choice of law, [3.40] class actions, [3.410] common law, [3.70] common law privilege, [3.860] application of defence, [3.860] jury trials, [3.860] legal moral or social duty, [3.860] malice, [3.960] political communications, and, [2.90], [3.970]–[3.1040] public warnings, [3.940]–[3.950] published corrections, [3.930] reciprocal interest, [3.860] retort to defamatory attack, [3.880]–[3.920] uniform defamation legislation, relationship, [3.1100] common law tests, [3.140] compensation, [3.1320] damages, [3.1320] offer to pay, [3.580] confidential sources, [7.580] application of newspaper rule, [7.530], [7.580] pre-trial discovery orders, [7.610] rationale for newspaper rule, [7.580] special circumstances, [7.580] consent defence, [3.1290]–[3.1300] merely allowing, [3.1310] contempt of parliament, [4.380], [4.390] contextual truth defence, [3.710] elements of defence, [3.710] “plead back” imputations, [3.710] corporations, [3.520] damages, [3.1320] corrections, [3.930]

mitigation of damages, [3.1360] costs in proceedings, [3.1380] court proceedings, [3.740] absolute privilege, [3.740] fair reports, [3.790], [3.810], [3.820] reporting, [3.280] crime reporting, [3.280] “alleged” or “allegedly”, use, [3.280] criminal — see Criminal defamation damages, [3.1320] aggravated damages, [3.1340] calculation, [3.1330] exemplary damages, [3.1350] failure to apologise, [3.1340] mitigation, [3.1360] negligence, [3.1340] punitive damages, [3.1350] trading companies, [3.1320] defamatory matter, [3.80] imputations, [3.80]–[3.150] questions of law, [3.300] referable to plaintiff, [3.320]–[3.420] single cause of action, [3.310] defamatory meaning, [3.140] annoyance, [3.160] bane and antidote, [3.240]–[3.280] cartoons or jokes, [3.200] common law tests, [3.150]–[3.160] community standards, [3.170] context, [3.220]–[3.230] court reporting, [3.280] crime reporting, [3.280] hurt feelings, [3.160] hypothetical referee, [3.170] intention or motive, [3.290] minority groups, [3.180] nature of medium, [3.190] ordinary person standard, [3.170]–[3.200] proportion of community, [3.180] sectional attitudes, [3.180] vulgar abuse or vituperation, [3.210] defences, [3.640] absolute privilege, [3.720]–[3.770] bane and antidote, [3.670] consent, [3.1290]–[3.1310] contextual truth, [3.710] correction or apology, [3.610] fair comment defence, [3.710], [3.1110], [3.1120]–[3.1170], [3.1230], [3.1240] honest opinion, [3.1180]–[3.1210] innocent dissemination, [3.1250]–[3.1270] intention or motive, [3.290] justification, [3.650]–[3.700] parliamentary privilege, [3.730] Polly Peck defence, [3.690]–[3.700] qualified privilege, [3.780]–[3.1040] triviality, [3.1280] disparagement of reputation, [3.140]–[3.190] election candidates, [4.630]

1013

Australian Media Law Defamation — cont fair comment defence, [3.710], [3.1110] comment rather than fact, [3.1130]–[3.1150] elements of defence, [3.1120] fairness of comment, [3.1170] honesty, [3.1170], [3.1220] malice or ill-will, [3.1170] subject matter of public interest, [3.1160] fair reports of proceedings, [3.800], [3.810], [3.820] defeat of defence, [3.850] earlier published reports, [3.790] fairness, [3.830] parliamentary proceedings, [3.800], [3.810], [4.40], [7.220] proceedings of public concern, [3.800] report, meaning, [3.840] free speech, and, [2.80], [3.10] injunctions, [3.1370] reputation, [3.10] groups of individuals, [3.410] class actions, [3.410] unnamed members, [3.430] honest opinion defence, [3.1180] absence of honesty, [3.1220] commentators, [3.1170] elements of defence, [3.1180] employee or agent, [3.1220] fair comment, justification and privilege, relationship with, [3.1230] fair comment, relationship with, [3.1230] proper material, [3.1210] public interest, [3.1200] statement of opinion, [3.1190] identification of plaintiff, [3.320]–[3.330] name, by, [3.320] imputations, [3.80], [3.90] defamatory meaning, [3.140]–[3.280] false innuendos, [3.100]–[3.120] inferences, [3.120] justification defence, [3.670] natural and ordinary meaning, [3.90] ordinary person, [3.90], [3.120], [3.170]–[3.200] true innuendos, [3.130] “walk in” technique, [3.120] injunctions, [3.1370] considerations, [3.1370] internet publications, [3.1370] other causes of action, [3.1370] public interest, [3.1370] uniform legislation, and, [3.1370] innocent dissemination defence, [3.1250] effective control, [3.1270] internet service providers, [3.1250], [3.1270] live programs, [3.1250]–[3.1260] operation of defence, [3.1250] talkback programs, [3.1270] intention of publisher, [3.290]

1014

internet, [3.40]–[3.60], [6.160] hackers, [3.560] injunctions, [3.1370] ordinary person standard, [3.170]–[3.200] publication, meaning, [3.440] referable to plaintiff, [3.370] internet service providers, [3.560], [3.1250] interviews, [3.230] consent defence, [3.1290] innocent dissemination defence, [3.1270] liability, [3.560] invasion of privacy, and, [8.970], [8.980] honest opinion, [8.970] justification defence, [8.970] qualified privilege, [8.970] jurisdiction, [3.40] forum shopping, [3.40] internet publications, [3.40]–[3.50] multiple places of publication, [3.480] jury trials, [3.300] consent defence, [3.1290]–[3.1310] determinations by jury, [3.300] qualified privilege, [3.860] justification defence, [3.650] Hore-Lacy defence, [3.700] imputations, [3.670] invasion of privacy, and, [8.970] motive of publisher, [3.660] opinions, [3.680] Polly Peck defence, [3.690]–[3.700] republication of rumour, [3.670] substantial truth, [3.670] legislation, [3.30] forum shopping, [3.40] individual state reforms, [3.30] internet, [3.40] United Kingdom, [3.30], [3.560] letters to the editor, [3.450], [3.560] liability, [3.550] contribution to publication, [3.560] extent of liability, [3.560], [3.560] failure to act, [3.560] internet hackers, [3.560] joint and several, [3.560] online forum board, [3.560] publisher, [6.160] republications, [3.450]–[3.470], [3.560] vicarious liability, [3.560] libel, [3.70] media safe harbour, [3.1420], [13.410]–[13.420] exception, [3.1450] mediation, [3.1390] misleading and deceptive conduct, [3.1410] alternative action, [13.410] mitigation, [3.1360] apologies or corrections, [3.610], [6.630], [3.1360] character evidence, [3.1360] truth, [3.1360]

D – Index Defamation — cont uniform legislation, and, [3.1360] motive of publisher, [3.290], [3.650] negligence aggravated damages, [3.1340] newspaper rule, [7.530], [7.580] application of rule, [7.580] pre-trial discovery orders, [7.610] rationale for rule, [7.580] special circumstances, [7.580] offer to make amends, [3.580] compensation, [3.580] effect of acceptance, [3.580] non-acceptance, [3.590] reasonableness of offer, [3.600] time limits, [3.580] withdrawal, [3.580] online forums, [3.560] ordinary persons, [3.90], [3.120], [3.170] application of standard, [3.180] cartoons or jokes, [3.200] internet publications, [3.200] nature of medium, [3.190] statements made in jest, [3.200] overview, [3.10] parliamentary papers, [4.70] parliamentary privilege, [3.730], [4.40] actions by members, [3.730], [4.140] Bill of Rights, and, [4.180] Commonwealth provisions, [3.730] debate concerning provisions, [3.730] effective repetition, [4.110]–[4.130] extra-parliamentary speech, [4.100] prior to debate, [4.100] repetition outside House, [3.730], [4.100], [4.110]–[4.130] scope of privilege, [3.730] parliamentary reporting, [3.810] absolute privilege, [4.40]–[4.50] public documents, [3.790], [4.70] qualified privilege, [3.790], [3.810], [4.40], [7.220] parties to actions, [3.490] Aboriginal Land Council, [3.790] bankrupts, [3.500] corporations, [3.520] deceased persons, [3.490] local councils, [3.790] partnerships, [3.510] trade unions, [3.530] plagiarism by journalist, [3.340] plaintiff, referable to, [3.320]–[3.330] groups of individuals, [3.410]–[3.430] hyperlink in web pages, [3.370] identification of plaintiff, [3.320]–[3.330] intention of defendant, [3.380]–[3.400] subsequent publications, [3.350]–[3.360], [3.370] time of reference, [3.350] unintended references, [3.390]–[3.400] political communications, [2.90], [3.970] elements of defence, [3.980]

government or political matters, [3.990] High Court decisions, [3.970] House of Lords decisions, [3.1020] improper purpose, [3.1010], [3.1020] malice, [3.1010] reasonableness, [3.1000] uniform defamation legislation, [3.820], [3.1040] Polly Peck defence, [3.690]–[3.700] judicial attitudes, [3.700] pre-trial discovery orders, [7.590], [7.600], [7.610] promotions forthcoming publications, [3.1430]–[3.1440] supply of goods or services, [3.1450] public documents, [3.790], [3.820], [4.70] copies, summaries or extracts, [3.790] defeat of defence, [3.850], [4.70] publication, [3.440] meaning, [3.440] multiple places of publication, [3.480] republications, [3.450]–[3.470] qualified privilege, [3.780] common law, [3.860]–[3.1040] fair reports of proceedings, [3.800]–[3.850] invasion of privacy, and, [8.970] parliamentary papers, [4.70] parliamentary proceedings, [3.790], [3.810], [3.820], [4.40], [7.220] political communications, and, [2.90], [3.1000]–[3.1040] provision of information, [3.1050]–[3.1090] public documents, [3.790] uniform defamation legislation, relationship, [3.1100] radio/television talkback, [3.450], [3.560], [3.1270] republications, [3.450] disclaimers, [3.450] liability, [3.450], [3.560] original publishers, [3.450] pleadings, [3.470] rumour, [3.670] reputation, [3.10] disparagement, [3.140]–[3.160] truth and, [3.20] resolution of disputes, [3.570] apologies, [3.590]–[3.630] offer to make amends, [3.580]–[3.610] search engines, [3.560] slander, [3.70] statements made in jest, [3.200] statutory qualified privilege — see Qualified privilege stop writs, [6.770] sub judice contempt, [6.770] triviality defence, [3.1280] truth mitigation of damages, [3.1360] reputation and, [3.20]

1015

Australian Media Law Defamation — cont substantial truth, [3.670] uniform laws, [3.30] development of scheme, [3.30] forum shopping, [3.40] individual state reforms, [3.30] internet, [3.50], [3.60] pre-trial settlement procedure, [3.30] unintended references, [3.390]–[3.400] ambiguities, [3.400] fictitious works, [3.400] vicarious liability, [3.560] Defamatory libel — see Criminal defamation Democracy free speech, and, [1.10], [2.60], [2.90] equality, [2.60] ethics, [2.60] moral principles, [2.60] political process, [2.60] restrictions in speech, [2.60] freedom of political communication, [2.90], [2.100] Digital Audio Broadcasting (DAB) technology, [14.430] Digital dividend, [14.1340] Digital radio advantages over analog, [14.410] broadcasting licences, [14.550], [14.630] DAB+ trials, [14.510] designated community radio broadcasting licences, [14.630] licence, [14.450] multiplex capacity, [14.450] options for introduction, [14.420] planning for transmission, [14.400] service providers, [14.440] take-up, [14.510] technical considerations, [14.430] transmission, [14.450] Digital radio multiplex transmitter licence (DRMTL) access entitlements and undertakings, [14.480] categories, [14.470] conditions, [14.450], [14.480] duration, [14.450] foundation and non-foundation licences, [14.460] moratorium, [14.500] obligations, [14.470] overview, [14.450] services, [14.490]

1016

Digital representative company (DRC), [14.470] Digital television — see also Datacasting services additional spectrum allocation, [14.250], [14.280], [14.290] analog compared, [14.10] characteristics, [14.240] broadcast delivery, [14.380] commencement of transmission, [14.270], [14.390], [14.510] community television, [14.390] conversion schemes, [14.260] forfeiture of licence, [14.150] implementation plans, [14.260] regional equalisation plans, [14.260] simulcast period, [14.270] standards and codes, [14.370] technological aspects, [14.280] current national and commercial digital services, [14.340] datacasting, relationship with, [14.1260] definition, [14.240] Digital Dividend Green paper, [14.280] government response, [14.250], [14.310] high definition services, [14.310] licence conditions, [14.570] quota, [14.310] simulcast with standard definition, [14.240] implementation plans, [14.260] multi-channelled services, [14.240], [14.310], [14.320] anti-siphoning, [14.360] regional equalisation plans, [14.260] restacking of broadcasting services, [14.280] restrictions on broadcasters, [14.350], [14.530] anti-siphoning, [14.360] satellite service, [14.560] licence conditions, [14.570] simulcast period, [14.270] high definition programs, [14.310] standard definition services, [14.320] broadcasting licence, [14.520] commercial multi-channel, [14.330] content restrictions, [14.350]–[14.370] licence conditions, [14.570] multi-channel, [14.320] subscription service, [14.380] switch-over timetable, [14.270] “the digital dividend”, [14.280] types of services, [14.290]–[14.300] UHF spectrum, [14.280] use, [14.250] Disability vilification on grounds of, [9.520] Discovered documents — see also Pre-trial discovery orders access to documents, [5.720]

F – Index Discovered documents — cont implied undertaking as to use, [5.730]–[5.740] breach of undertaking, [5.760] collateral purposes, [5.730] documents read in court, [5.770] duration and termination, [5.770] exempt documents, [5.750] freedom of political communication, [5.790] rationale for imposition, [5.730] termination of undertaking, [5.770] third parties, [5.760] waiver, [5.780] Dramatic works copyright protection, [12.70] moral rights, [12.190] Drugs and medicines advertising, [13.490]

qualifications to requirement, [4.590] Special Broadcasting Service, [4.590] advertisement ban, [4.600] Election candidates defaming a candidate, [4.630] Election material identification requirements, [4.610] Commonwealth offences, [4.610] internet, [4.610] newspaper inserts, [4.610] South Australian provisions, [4.610] state and territory elections, [4.610] misleading or deceptive material, [4.620] offence, [4.620] South Australia, [4.620] overview, [4.580] Election reporting overview, [4.10], [4.580]

E

Electors, [2.90] freedom of political communication, [2.90]

Editors contempt liability, [6.70] defamation liability, [3.560]

Electronic bulletin boards excluded broadcasting services, [14.50]

Election advertisements ban on advertising, [4.600] applicable broadcasters, [4.600] definition, [4.600] free speech, [2.100] identification requirements, [4.610] South Australia, [4.610] misleading or deceptive material, [4.620] South Australia, [4.620] newspaper inserts, [4.610] political matter, as, [4.620] Election broadcasts — see also Political broadcasts advertisement ban, [4.600] applicable broadcasters, [4.600] election advertisement, definition, [4.600] advertising, [2.100] Australian Broadcasting Corporation, [4.590], [4.600] freedom of political communication, [2.100], [4.580] electors, among, [2.90] licensed broadcasters, [4.590] advertisement ban, [4.600] licence conditions, [4.590] reasonable opportunities requirement, [4.590] overview, [4.580] reasonable opportunities requirement, [4.590]

Email excluded broadcasting services, [14.50] interception, [8.110], [8.110] Enlightenment period overview, [2.30] progressive thinkers, and, [2.30] truth, [2.50] Evidence confidential sources, and, [7.650] overview, [7.650] public communication of open justice principle, [5.90]

F

Fair comment defence comment rather than fact, [3.1130]–[3.1150] elements of defence, [3.1120] fairness of comment, [3.1170] honesty, [3.1180], [3.1220] malice or ill-will, [3.1170] overview, [3.680], [3.1110] Fair reports of proceedings court proceedings, [3.790], [3.810] defeat of defence, [3.850] earlier published reports, [3.790]

1017

Australian Media Law Fair reports of proceedings — cont fairness, [3.830] fair, meaning, [3.830] question of fact, [3.830] overview, [3.830] parliamentary papers, [4.70] parliamentary proceedings, [3.790], [3.810], [4.40], [7.220] proceedings of public concern, [3.800] report, meaning, [3.840] uniform defamation legislation, [3.820] False or misleading representations — see also Misleading or deceptive conduct business activities, [13.290] employment, [13.280] goods or services, [13.110] agreement to acquire, [13.150] conditions, warranties or guarantees, [13.250] new goods, [13.140] place of origin, [13.210]–[13.230] price, [13.190] repairs, [13.200] required by law, [13.240] requirement to pay for existing contractual right, [13.260] rights or remedies, [13.250] spare parts, [13.200] sponsorship or approval, [13.170], [13.180], [13.430] standard or quality, [13.120], [13.130] testimonials, [13.160] land, interests, [13.270] made in Australia, [13.210]–[13.220] defences to alleged breach, [13.230] flag, use of, [13.230] logos, use of, [13.230] minerals or crops, [13.230] qualifying words, [13.230] overview, [13.100] place of origin, [13.210]–[13.220] defences to alleged breach, [13.230] exceptions to prohibition, [13.230] minerals or crops,[13.230] qualifying words, [13.230] sponsorship or approval goods or services, [13.170] persons, [13.180] special events, [13.430] testimonials, [13.160] Film classification — see Classification scheme Filming or photographing accused persons, [6.610]–[6.630] concealment of face, [6.630] identification issues, [6.610]–[6.620] copyright, [12.160] authorship, [12.160]

1018

duration, [12.140] expiration, [12.150] first ownership, [12.210] moral rights, [12.190] ownership, rights, [12.190] public domain, [12.150] court proceedings, [5.600]–[5.630] changing attitudes, [5.620] media’s position, [5.610] prejudice, and, [5.620] statutory provisions, [5.610] technological advances, [5.610] nuisance, [8.830] observing from aircraft, [8.840] observing from other premises, [8.830] trespass, [8.670] observing from aircraft, [8.710] observing from other premises, [8.700] witnesses, [6.560] Fitzgerald Inquiry, [7.350] Foreign investment — see also Ownership and control government attitude, [15.510] overview, [15.500] prior approvals, [15.510] regulatory regime, [15.510] review of decisions, [15.510] Freedom of information access categories, [7.30] applications for access, [7.30] cabinet documents, [7.40] exempt documents, [7.40] ASIS and ASIO, [7.40] legislation, [7.20] justifications, [7.20] object, [7.20] minister’s certificate, [7.40] overview, [7.20] prejudicial effect, [7.40] refusal of requests, [7.30] Freedom of political communication ACTV case, [2.90] facts of case, [2.100] confidential sources, [7.570], [7.610] contempt of parliament, [4.500] difficulties in application, [4.500] corporate power, and, [2.100] crime, [2.90] instructional material, [2.90] defamation defence, [2.90], [3.970] elements of defence, [3.980] government or political matters, [3.990] High Court decisions, [3.970] House of Lords decisions, [3.1020] improper purpose, [3.1010], [3.1020] malice, [3.1010] public interest, [3.1020], [3.1160], [3.1250]

F – Index Freedom of political communication — cont reasonableness, [3.1000] uniform defamation legislation, [3.820], [3.1040] democracy, [2.90], [2.100] discovered documents, [5.790] election advertisements, [2.100] election broadcasts, [2.100], [4.590] electors, among, [2.90] insult-based laws, [2.90] judicial branch of government, [2.90] Lange case, [2.90], [2.100], [3.970], [3.990], [3.1000], [3.1020], [3.1040], [4.170], [5.790], [9.30] laws affecting speech, [2.90] limitations, [2.90] Monis v R, [2.90] nature of freedom, [2.90] overview, [2.90] parliamentary privilege, [3.730], [4.170] philosophical justifications, [2.100] political donations, [2.100] racial vilification, [9.30] representative government, [2.90], [2.100] scandalising contempt, [6.940] conformity with implied freedom, [6.940] political speech, [6.940] scope, [2.90] states’ legislative power, [2.90] sub judice contempt, [6.780]–[6.790] balance of interests, [6.780] political speech, [6.780] Theophanous case, [2.90], [3.990], [3.1000], [6.780] United States, contrast, [2.90] Freedom of speech advertising, [13.410] election period, [2.100] special event restrictions, [13.430] challenges and limits, [2.10], [2.110] anti-terrorism laws, [2.100] cultural power, [2.110] national identity, [2.110] private power, [2.110] race, [2.110] community standards, [9.10] constitutional law, [2.10], [2.70], [2.90] United States, [2.80], [2.90] consumer protection legislation, [13.20] corporate power and influence, [2.90] defamation, and, [2.80], [3.10] injunctions, [3.1370] reputation, [3.10] definition, [2.10] democracy, and, [1.10], [2.60], [2.90] equality, [2.60] ethics, [2.60] moral principles, [2.60] political process, [2.60] representative democracy, [2.90]

restrictions in speech, [2.60] historical development, [2.10], [2.20] Enlightenment period, [2.30], [2.50] Parliament, [2.20] printing press, [2.20] seditious libel, [2.20], [10.40], [10.60] truth, [2.50] unlicensed printing, [2.20] international recognition, [1.10] legal regulation, [2.120] media regulation, and, [1.10], [2.10], [2.20], [2.120] media’s role, [1.10] national security, [10.10] overview, [2.10], [2.120] parliamentary privilege, [3.730], [4.20] immunity from impeachment or question, [4.30]–[4.180] parliamentary reporting, [2.20] philosophical justifications, [2.10], [2.30] anti-foundationalist position, [2.50] autonomy, [2.40] democracy, [2.60] Enlightenment period, [2.30], [2.50] marketplace of ideas, [2.50] truth, [2.50] types of speech, [2.30] political communications — see Freedom of political communication pornography, [2.80], [9.630] Press Council, and, [14.1510], [14.1520] privacy, and, [8.10] public interest, [2.10] scandalising contempt, [6.830] sub judice contempt, [6.250] prejudgment principle, [6.510] public interest, [6.110], [6.710], [6.720], [6.760] subversive speech, [2.80] tobacco advertising ban, [13.440], [13.460] United States, [2.80] clear and present danger defence, [2.80] First Amendment, [2.80] violent threats, [2.80]

1019

Australian Media Law G

Gagging writs, [6.770] General non-publication order — see Non-publication orders Government communications — see Freedom of information — see Political or government communications

H

High definition television — see Digital television Homosexuality vilification on grounds of, [9.520] Humour defamation, [3.200] racial vilification, and, [9.160]–[9.180]

I

Implied freedom of political communication — see Freedom of political communication In camera orders bases for closure, [5.60] control of public, [5.60] mentally ill persons, [5.80] subject matter of action, [5.60]–[5.70] breach of order, [5.340] contempt, [6.30] person bound by order, [5.340] challenges to orders, [5.310] appeals, [5.300] applications to superior courts, [5.320] prerogative relief, [5.320] standing to challenge, [5.310] timing of hearings, [5.310] circumstances not justifying, [5.80] control of public, [5.60] courts’ power, [5.60] control of public, [5.60] judgment and orders, [5.80] mentally ill persons, [5.80] protection of interests, [5.80] non-publication orders, and, [5.150] overview, [5.60] prejudicial publicity, and, [6.120] statutory provisions, [5.380]

1020

New South Wales, [5.420]–[5.440] Northern Territory, [5.450] Queensland, [5.460] Victoria, [5.490]–[5.550] Western Australia, [5.560] Indecency — see Obscene libel Inertia selling, [13.300] Injunctions breach of confidence, [7.410] criminal contempt, [7.450]–[7.490] permanent injunctions, [7.420] purpose of injunction, [7.410] social media, via, [7.490] consumer protection legislation, [13.310] contempt, [6.950] criminal contempt, [7.450]–[7.490] damages, alternative to, [7.430] defamation, [3.1370] considerations, [3.1370] internet publications, [3.1370] other causes of action, [3.1370] public interest, [3.1370] uniform legislation, and, [3.1370] free speech, and, [3.1370] interlocutory, [7.410] nuisance, [8.860] super-injunctions, [4.60], [7.410] telecommunications interception, [8.140] trespass, [8.750] restraint of publication, [8.750] underlying cause of action, [8.750] “walk-ins”, [8.750] Injurious falsehood elements, [3.1460] misleading and deceptive conduct, and, [3.1460] overview, [3.1460] Interception of communications — see Listening devices — see Surveillance devices — see Telecommunications interception International broadcasting services, [14.130] International Covenant on Civil and Political Rights contempt of parliament, [4.240] freedom of speech, [1.10] racial or religious vilification, [9.20], [9.30] Internet — see also Datacasting services — see also Social media audio and visual streaming, [9.720], [14.50], [14.450]

I – Index Internet — cont codes of practice, [9.770], [14.1310] contempt liability, [6.70] archived material, test for, [6.230] sub judice contempt, [6.160], [6.790] content regulation, [9.710] ACMA’s powers, [9.740], [9.770], [14.1370] complaints, [9.730] prohibited content, [9.720], [14.1280] content services regime, [9.710] Convergence Review, [15.530] copyright infringement authorisation, by, [12.360] digital piracy, [12.350] end-user licences, [12.370] facilitation of infringement, [12.390] Internet service provider, liability, [12.350] movies, [12.380]–[12.390] music files, [12.370] court proceedings online, [5.50] defamation, [3.40]–[3.60], [6.160] Google search engines, [3.560] hyperlink in web page, [3.560] injunctions, [3.1370] liability, [3.560] ordinary person standard, [3.170]–[3.190] publication, meaning, [3.440] referable to plaintiff, [3.370] election material, [4.610] email, [14.50] interception, [8.90], [8.110] filtering, [9.780] impact of, [14.10] industry standards, [14.1310] live text-based communications in court, [5.640] “new media”, [15.520] regulation, [14.10] open justice, effect on, [5.20] ownership and control, [15.520] parliamentary webcasts, [4.520] prejudice of court proceedings and, [6.230], [6.790] prohibited content, [9.720] access prevention notices, [9.750] complaints, [9.720] definition, [9.720] hosted in Australia, [9.740] hosted outside Australia, [9.750] take-down notices, [9.740], [9.760] publication meaning, [3.440] other media, distinguished, [6.230] web pages, [3.440] racial and religious vilification, [9.260], [9.320] representative body, [9.770] sub judice contempt, [6.160], [6.790] archived material, [6.230] time of publication, [6.160]

Internet content hosts broadcasting service licence, [14.50] codes of practice, [9.770] content regulation, [9.710] protection from liability, [9.760] Internet radio streamed services online, [14.510] Internet service providers codes of practice, [9.770] contempt liability, [6.70] content regulation, [9.710], [14.10] immunity, [9.760] innocent dissemination defence, [3.1250] Interrogatories discovered documents, and, [5.770] Interviews defamation, [3.450], [3.560] consent defence, [3.1290] innocent dissemination defence, [3.1270] sub judice contempt, [6.150] witnesses — see Witness interviews Invasion of privacy appropriation of likeness, [8.980] United States, [8.490] breach of confidence, [8.930]–[8.950], [8.1020] New Zealand, [8.590]–[8.600] quality of confidence, [7.60]–[7.220] United Kingdom, [8.520]–[8.540] consent, [8.1070] defamation, [8.970], [8.980] honest opinion, [8.970] justification defence, [8.970] qualified privilege, [8.970] disclosure cases, [8.920], [8.960] breach of confidence, [8.930]–[8.950] defamation, [8.970], [8.980] future directions, [8.990] consent, [8.1070] defences, [8.1040] disclosure tort, [8.1000], [8.1010] intrusion tort, [8.1000], [8.1020] public interest, [8.1040], [8.1090] reasonable expectation of privacy, [8.1030] remedies, [8.1160] separate torts, [8.990] statutory cause of action, [8.1060]–[8.1150] statutory offences, [8.1160] intrusion cases, [8.630] harassment, [8.910] nuisance, [8.800]–[8.870] recognition of tort, [8.640] trespass, [8.650]–[8.790]

1021

Australian Media Law Invasion of privacy — cont unreasonable intrusion, [8.640], [8.1020] intrusion tort, [8.1020] misleading or deceptive conduct, [8.980] New Zealand, [8.590] public disclosure of private facts, [8.590], [8.1010] reasonable expectation of privacy, [8.590], [8.1030] unreasonable intrusion, protection, [8.610] nuisance — see Nuisance overview, [8.430], [8.620], [8.980] passing-off, [8.980] presenting in a false light, [8.980] United States, [8.480] self-regulation by media, [8.1170] avenues for complaint, [8.1180] complaint procedure, [8.1180] consequences of breach, [8.1170] levels of protection, [8.1170] tort against invasion, [8.430] Australian position, [8.430], [8.620], [8.1060] other countries, [8.440]–[8.600] reform proposals, [8.430], [8.1060]–[8.1150] trespass — see Trespass United Kingdom, [8.500] balancing exercise, [8.520], [8.560], [8.580] breach of confidence, [8.520] disclosure of private information, [8.510] duty of care, [8.510] freedom of expression for media, [8.560]–[8.570] human rights, [8.520] jurisprudence, [8.530]–[8.540] public interest in publication, [8.580] reasonable expectation of privacy, [8.550], [8.1030] United States, [8.450] appropriation of likeness, [8.490] free speech, and, [8.1090] presenting in a false light, [8.480] public disclosure of private facts, [8.470] unreasonable intrusion, [8.460] unreasonable intrusion, [8.460], [8.640], [8.1020] public interest, [8.460]

J

Jokes defamation, [3.200] racial vilification, and, [9.160]–[9.180]

1022

Journalists — see also Code of ethics (journalists) — see also Confidential sources — see also Media Entertainment and Arts Alliance Australian Privacy Principles, exemption, [8.40] complaints against, [14.1600] code of ethics, violation, [14.1600] Complaints panel, [14.1600] MEAA Rules, [14.1600] Press Council, to, [14.1600] contempt of court, [7.610]–[7.620] definition, [7.500], [7.700] disclosure of sources, [7.510], [7.600]–[7.660] duty of care employer, owed by, [11.20]–[11.30] public, owed, [11.40] listening device, use of, [8.210]–[8.250] newspaper rule, [7.530], [7.580] non-disclosure, rebuttable presumption of, [7.660]–[7.690] pre-trial discovery, [7.590]–[7.640] privacy law, application of exceptions, [8.230]–[8.240] listening devices, [8.210]–[8.220], [8.280]–[8.320] minor’s consent to listening device use, [8.250] party to conversation, where, [8.210]–[8.220] third party to conversation, where, [8.280]–[8.360] privilege, [7.520] common law, under, [7.530] professional confidential relationships, for, [7.650] refusal to answer questions, [4.350]–[4.360], [7.540]–[7.570] regulation, [14.1580] enforcement, [14.1600] Media Entertainment and Arts Alliance (MEAA), by, [14.1580] Judges — see also Magistrates — see also Scandalising contempt assessment of relevant standard for obscenity or indecency, [9.570]–[9.580] attitude towards television coverage, [5.620] concealment orders, power to make, [5.100] contemptuous publications, effect, [6.260] pre-trial publicity, [6.260], [6.790] general non-publication orders, [5.190] proceeding non-publication orders, power to make, [5.160], [5.170]–[5.180] Judicial proceedings — see Court proceedings Judicial review ACMA decisions, [14.1420]

L – Index Judicial review — cont classification decisions, [9.680] Juries contemptuous publications, effect, [6.280] civil proceedings, [6.520] confessions by accused, [6.450]–[6.460] criticising or disparaging accused, [6.350]–[6.390] prejudgment principle, [6.520] prior convictions, [6.470]–[6.480] prior offences or charges, [6.490] statements of guilt, [6.290]–[6.310] statements of innocence, [6.320]–[6.340] sympathy for accused, [6.430]–[6.440] sympathy for victim, [6.360], [6.400]–[6.410] identification of jurors, [5.840] former jurors, [5.840] prohibitions on disclosure, [5.840] open justice and, [5.50] prejudicial publicity, exposure to, [6.120], [6.790] secrecy obligation, [5.50], [5.820] televising court proceedings, [5.610] Jurisdiction defamation, [3.40] forum shopping, [3.40] internet publications, [3.40] multiple places of publication, [3.480] sub judice contempt, [6.160] Jury deliberations common law position, [5.50], [5.800], [5.820] contempt of court, [5.820], [6.30] post-trial disclosures, [5.820] publishers, [5.820] overview, [5.800] policy considerations, [5.810] arguments for disclosure, [5.50], [5.810] finality of verdicts, [5.810] freedom from harassment, [5.810] freedom of discussion, [5.810] secrecy obligation, [5.50], [5.820] statutory position, [5.830] commencement of proceedings, [5.830] exceptions to prohibitions, [5.830], [5.840] offences, [5.830] post-trial disclosures, [5.830] publish, definition, [5.830] soliciting information, [5.830], [5.840] Jury trials contemptuous publications, [6.260] criminal contempt, [6.100] defamation, [3.300] consent defence, [3.1290] determinations by jury, [3.300]

qualified privilege, [3.860] Justification defence breach of confidence, [7.330] duty of confidence, [7.330] investigative journalism, [7.350] just cause or excuse, [7.330], [7.340], [7.350], [7.360] protection of public safety, [7.330] defamation, [3.650] imputations, [3.670] invasion of privacy, and, [8.970] motive of publisher, [3.650] opinions, [3.680] Polly Peck defence, [3.690] republication of rumour, [3.670] substantial truth, [3.670]

L

Legal proceedings — see Court proceedings Legal professional privilege confidentiality, [7.240] Letters to the editor defamation, [3.450], [3.560] Libel — see also Blasphemy — see also Criminal defamation — see also Obscene libel — see also Sedition common law, [3.70] criminal libels, [3.1470] overview, [3.70] slander, distinction, [3.70] Listening devices exceptions, [8.270], [8.360] Australian Capital Territory, [8.270], [8.360] consent of parties, [8.270] New South Wales, [8.270] party to conversation, [8.250], [8.270] Queensland, [8.270] South Australia, [8.270] Tasmania, [8.270], [8.360] legislative framework, [8.160] overview, [8.150] party to conversation, [8.170]–[8.200], [8.330]–[8.340] private conversations, [8.170] definition, [8.170] prohibitions, [8.280]–[8.290] exceptions, [8.230]–[8.240] party to conversation, [8.210], [8.260], [8.330]–[8.350] third parties, [8.280] trespass, [8.690]

1023

Australian Media Law Listening devices — cont videotape or film, [8.270] Literary works compilations, [12.100], [12.110] selection, arrangement and compilation, [12.100] computer programs, [12.90] copyright, [12.70] published edition, [12.200] sufficient intellectual effort by human author, [12.100], [12.110] information, instruction or literary enjoyment, [12.90] listing data, [12.100] “whole of universe” compilation, [12.110] moral rights, [12.190] ownership first ownership, [12.210] published editions, [12.200] “semiotic function”, [12.80] slogans and headlines, [12.90] telephone directories, [12.110]

M Made in Australia false or misleading representations, [13.210]–[13.220] flag, use of, [13.230] logos, use of, [13.230] minerals or crops, [13.230] qualifying words, [13.230] product of Australia, [13.230] Magazines — see Classification scheme Magistrates — see also Judges assessment of relevant standard for obscenity or indecency, [9.570]–[9.580] contemptuous publications, effect, [6.260] Media, Entertainment and Arts Alliance — see also Code of ethics (journalists) complaints procedures, [14.1600] overview, [14.1580] Media forms, [1.10] Media law, [1.10] Media organisation definition, [8.40] Media ownership and control — see Ownership and control Media regulation broadcasting — see Broadcast regulation

1024

freedom of speech, [1.10], [2.10] historical origins, [2.20] overview, [14.10] self-regulation, [1.10] Media safe harbour, [3.1420], [3.1450], [13.410]–[13.420] Media scrums, [11.140] Mediation defamation disputes, [3.1390] Medicines and drugs advertising, [13.490] Misleading or deceptive conduct — see also False or misleading representations accessorial liability, [13.40], [13.360] advertising agents, [13.360] advertising, [13.60] comparative advertising, [13.70] damages, [13.330] defamation, and, [3.1410], [3.1450] alternative action, [13.410] defences, [13.390]–[13.420] alternative to defamation, [13.410] interviewees, [13.410] publisher’s defence, [13.390]–[13.400] disclaimers, [13.80]–[13.90] exceptions, [13.410]–[13.420] injurious falsehood, and, [3.1460] invasion of privacy, and, [8.980] liability, [13.40] media safe harbour, [3.1420], [3.1450], [13.410]–[13.420] misleading or deceptive, [8.880], [13.60] dominant message, [13.60] likely to mislead or deceive, [13.60] question of fact, [13.60] target audience, [13.70] overview, [3.1410], [13.30] pecuniary penalties, [13.350] public warning notices, [13.380] publisher’ defence, [13.390]–[13.400] prescribed information providers, [3.1420], [13.410]–[13.420] qualifying words, [13.70] relevant conduct, [8.890]–[8.900], [13.40] omission or silence, [13.40] promises, predictions or opinions, [13.40] subsequent events, [13.40] relevant standard, [13.70] comparative advertising, [13.70] more than one meaning, [13.70] nature of product, [13.70] qualifying words, [13.70] trade or commerce, [8.880], [8.890], [8.900], [13.30], [13.50]

N – Index Misleading or deceptive conduct — cont publisher’s defence, [13.390]–[13.420] Musical works copyright protection, [12.70] infringement of copyright authorisation, by, [12.360] digital music files, [12.370] digital piracy, [12.350] independent creation and copying, [12.280], [12.290] Internet service provider, liability, [12.350] musical works, [12.270] note-by-note comparison, [12.270] objective similarity and copying, [12.260], [12.280] qualitative assessment, [12.300], [12.310], [12.320] subconscious copying, [12.280], [12.290] substantiality, [12.300], [12.310] undoubted degree of similarity, [12.290] moral rights, [12.190] ownership, rights, [12.190]

N Narrowcasting services open services, [14.120] commercial radio, and, [14.120] limited appeal, [14.120] limiting factors, [14.120] location, [14.120] special events, [14.120] ownership and control, [15.380] subscription services, [14.110], [14.670] breach of conditions, [14.910], [14.920] licence regime, [14.110], [14.670] prohibited classifications, [14.740] National broadcasting services — see Australian Broadcasting Corporation (ABC) — see Special Broadcasting Services (SBS) National security — see also Sedition — see also Anti-terrorism laws confidentiality, [7.60] D notice system, [10.30] freedom of association, [10.10] freedom of information, [7.40] freedom of speech, [10.10] official secrets, [10.20] ASIO or ASIS staff identities, [10.20] prohibition on disclosure, [10.20] overview, [10.10] terrorist attacks, and, [10.10] Negligence broadcasting, [11.140], [11.200]

duty of care, [11.200], [11.210]–[11.230] erroneous reports, [11.240] causal connection, [11.90] novus actus interveniens, [11.170] compensable harm, [11.70] dangerous content, [11.270] exhortation, [11.310] inspiration, [11.300] instructional material, [11.280] mimicry, [11.290], [11.300] on-air ambush, [11.320] warnings, [11.290] dangerous promotions, [11.110] conduct of participants, [11.120]–[11.130] defamation, [3.1340] aggravated damages, [3.1340] duty of care, [11.80], [11.200] coherency, [11.60] dangerous content, [11.270], [11.280] identity cases, [11.210]–[11.230] media organisation to journalist, [11.20]–[11.30] personal injury, [11.210]–[11.230] public, owed, [11.40] economic loss, [11.330]–[11.350] publisher’s liability, [11.350] erroneous reports, [11.240]–[11.260] susceptibility, and, [11.260] false stories, [11.240]–[11.260] foreseeable harm, [11.70], [11.80] harassment and distress, [11.180]–[11.190] impediments to successful claim, [11.50] media conduct, [11.100] mischief making stories, [11.250] negligent misstatement, [11.330]–[11.350] publisher’s liability, [11.350] newsgathering activities, [11.140], [11.150]–[11.190] harassment and distress, [11.180]–[11.190] media scrums, [11.140] novus actus interveniens, [11.170] siege or hostage situations, [11.150], [11.170] vulnerable persons, [11.170]–[11.190] overview, [11.10] personal injury, [11.210]–[11.230] duty of care, [11.210], [11.230] erroneous reports, [11.240], [11.260] instructional material, [11.280] susceptibility, [11.260] publication activities, [11.140] repeat broadcasts, [11.80] United States exhortation cases, [11.310] inspiration cases, [11.300] mimicry cases, [11.290] newsgathering activities, [11.160] on-air ambush cases, [11.320]

1025

Australian Media Law News reporting — see also Press Council negligence, [11.140], [11.150] broadcasting, [11.200] media scrums, [11.140] novus actus interveniens, [11.170] siege or hostage situations, [11.150], [11.170] vulnerable persons, [11.170]–[11.190] Newspaper rule defamation actions, [7.580] application of rule, [7.580] pre-trial discovery orders, [7.610] rationale for rule, [7.580] special circumstances, [7.580] pre-trial discovery orders, [7.580], [7.610] Newspapers and magazines — see also Ownership and control cross-media mergers, [15.150]–[15.200] associated newspapers, [15.180] Convergence Review, [15.530] defamation, [3.560] multiple places of publication, [3.480] republications, [3.450]–[3.470], [3.560] election advertisements, [4.610] imprint requirements, [14.1490] Victoria, [14.1480] interviews — see Interviews legislation, [14.1470] online ownership and control, [15.520] Non-publication orders — see also Concealment orders — see also Pseudonym orders administration of justice, [5.170], [5.190], [5.210] case examples, [5.190], [5.210]–[5.270] necessary to ensure justice, [5.210] official secrets, offences, [5.360] breach of order, [5.340] binding effect of order, [5.340], [5.370] civil liability, [5.370] consequences, [5.340] knowledge of order, [5.370] statutory offences, [5.370] challenges to orders, [5.300] appeals, [5.270], [5.300] applications to superior courts, [5.320] prerogative relief, [5.320] standing to challenge, [5.310] timing of hearings, [5.310] circumstances for, [5.150], [5.210]–[5.270] criticism, [5.380] damage to public, [5.210] necessary to ensure justice, [5.210], [5.380] protection of persons, [5.260], [5.270] concealment orders, and, [5.150] concerns, [5.380] contempt of court, [5.340], [5.370], [6.30], [6.790]

1026

countervailing public interests, [5.210] courts’ powers, [5.160], [5.380] denial of power, [5.160], [5.270] exercise of power, [5.170]–[5.180] inferior courts, [5.160] tribunals, [5.160] derogation from open justice, [5.90]–[5.140] application to superior court for relief, [5.320] breach of order, consequences, [5.340], [5.350]–[5.360] challenging decision, [5.300] lodgement of appeal, right, [5.330] pseudonym orders, [5.120], [5.280] right to oppose, [5.310] duration,[5.380] general non-publication order, [5.190] credible evidence of necessity, [5.290] enforceability, [5.290] form, [5.220] injunction to prevent a sub judice contempt, [5.230] jurisdiction to make, [5.200] proceedings non-publication order distinguished, [5.190] relevant factors, [5.290] take-down order, [5.290] utility, [5.290] in camera orders, and, [5.150] inherent powers of court, [5.160] ’inherently confidential’ information, [5.80] necessity, [5.240], [5.380] notification procedures, [5.380] official secrets, [5.360] overview, [5.150] power to make, [5.160] prejudicial publicity, and, [6.120], [6.790] privacy, and, [5.270] proceedings non-publication order, [5.190] general non-publication order distinguished, [5.190] protection of parties to proceedings, [5.260], [5.270] negative consequences, relevance, [5.120], [5.270], [5.570] pseudonym orders, and, [5.280] public interest, [5.190], [5.210] purpose, [5.190] South Australia, [5.380], [5.470] considerations, [5.470] copies to Registrar, [5.470] interim orders, [5.470] review of orders, [5.470] standing, [5.470] statutory provisions, [5.380] Australian Capital Territory, [5.410] Commonwealth, [5.400] New South Wales, [5.420]–[5.440] Northern Territory, [5.450] Queensland, [5.460] South Australia, [5.470] Tasmania, [5.480]

O – Index Non-publication orders — cont Victoria, [5.490]–[5.550] Western Australia, [5.560] sub judice contempt and, [6.790] suppression orders distinguished, [5.420] types, [5.190] validity of orders, [5.160], [5.370] victim identification, [5.120], [5.270], [5.570] Victoria, [5.490] broad suppression orders, [5.540] closed court orders, [5.550] hearing of application, [5.520] notice of application, [5.520] preliminary matters, [5.500] proceeding suppression orders, [5.530] scope of the Act, [5.510] wording, [5.380]

context of usage, [9.550], [9.560] indecent, meaning, [9.540], [9.640] obscenity, meaning, [9.540], [9.640] relevant community, [9.580] Offensive publications — see Blasphemy — see Obscene libel — see Pornography — see Racial vilification — see Sedition Office of Film and Literature Classification, [9.640] Official secrets ASIO or ASIS staff identities, [10.20] overview, [10.20] Online services — see Internet

Nuisance — see also Trespass abatement, [8.870] damages, [8.850] elements of tort, [8.800] filming, photographing or observing, [8.830] aircraft, from, [8.840] other premises, from, [8.830] injunctions, [8.860] media conduct, [8.810] telephone calls, [8.820]

O

Obscene libel — see also Classification scheme community standards, [9.530], [9.540]–[9.560], [9.580] age groups, and, [9.580] differences in standards, [9.580] intended audience, [9.600]–[9.610], [9.620] judges’ personal standards, [9.570]–[9.580] test of obscenity or indecency, [9.540], [9.550], [9.570] defences, [9.800]–[9.810] availability of defence, [9.820] history, [9.530] banned publications, [9.530] basis for convictions, [9.530] custos morum, [9.530] social standards, and, [9.530] test of obscenity or indecency, [9.540] overview, [9.530] pornography, [9.630] statutory prohibition, [9.530] test of obscenity or indecency, [9.540] average person standard, [9.570]–[9.580] contemporary standards, [9.540]

Open justice access to documents — see Court documents — see Discovered documents administration of justice, [5.20] ambit, [5.50], [5.670] constitutional significance, [5.40] courts as publishers, [5.650] internet, on, [5.650] social media, on, [5.650] dissemination of information by electronic media and, [5.580] photographing and filming court proceedings, [5.600]–[5.630] recording court proceedings, [5.590] tweets and live text based communications, [5.640] exceptions, [5.50] common law, [5.60]–[5.240] concealment orders — see Concealment orders in camera orders — see In camera orders non-publication orders — see Non-publication orders pseudonym orders, [5.280] freedom of expression, [5.20] functions, [5.20] administration of justice, [5.20] freedom of expression, [5.20] judicial performance, [5.20] public scrutiny, [5.10] public vindication of litigants, [5.20] veracity of witnesses, [5.20] international covenants, [5.40] internet, and, [5.20] judicial perception, [5.20] judicial performance, [5.20] juries — see Jury deliberations media perception, [5.20] media’s role, [5.30], [5.50] court initiatives, [5.30]

1027

Australian Media Law Open justice — cont electronic dissemination of information, [5.580]–[5.590] judicial acknowledgement, [5.30] South Australia, [5.470] open court, meaning, [5.10] orders that derogate from, [5.90]–[5.140] — see also Non-publication orders — see also Concealment orders application to superior court for relief, [5.320] breach of order, consequences, [5.340], [5.350]–[5.360] challenging decision, [5.300] lodgement of appeal, right, [5.330] pseudonym orders, [5.120], [5.280] right to oppose, [5.310] overview, [5.10] principle, [5.10], [5.50] constitutional significance, [5.40] cost of adherence, [5.20] evidence in public, [5.10], [5.90] functions, [5.20] international covenants, [5.40] reporting to public, [5.10], [5.150] public scrutiny, [5.10] recording court procedures — see Tape recordings — see Televising court proceedings statutory exceptions, [5.50], [5.380], [5.390] Australian Capital Territory, [5.410] children, cases involving, [5.570] Commonwealth, [5.400] courts’ power, [5.380] extraterritoriality, [5.380] interpretation, [5.380] New South Wales, [5.420]–[5.440] Northern Territory, [5.450] Queensland, [5.460] sexual offences, [5.570] South Australia, [5.470] Tasmania, [5.480] Victoria, [5.490]–[5.550] Western Australia, [5.560] veracity of witnesses, [5.20] Opinions fair comment defence, [3.680], [3.1110] comment rather than fact, [3.1130]–[3.1150] elements, [3.1170] fairness of comment, [3.1170] honest opinion, justification and privilege, relationship with, [3.1230] honest opinion, relationship with, [3.1230] honesty, [3.1180], [3.1220] malice or ill-will, [3.1170] honest opinion defence, [3.1180] absence of honesty, [3.1220] commentators, [3.1170]

1028

elements of defence, [3.1180] employee or agent, [3.1220] fair comment, justification and privilege, relationship with, [3.1240] fair comment, relationship with, [3.1230] proper material, [3.1210] public interest, [3.1200] statement of opinion, [3.1190] Ownership and control ACCC, [15.370], [15.490] approach to mergers, [15.450] media merger guidelines, [15.460]–[15.480] merger authorisations, [15.440] merger clearances, [15.430] merger guidelines, [15.460]–[15.480] merger reviews, [15.420] subscription television licences, [15.370] ACMA, [15.220] enforcement of restrictions, [15.320]–[15.350] opinions on control, [15.270] prior approvals, [15.290] register of controlled media groups, [15.160], [15.350] register of matters, [15.340] breach of provisions, [15.300] approval of temporary breaches, [15.290] notice to remedy, [15.310] notification requirements, [15.330] commercial broadcasting services, [15.50] cross-media ownership, [15.50] repeal of cross-media rules, [14.1190], [15.50] commercial radio licences, [15.60] directorship restrictions, [15.140] restricted datacasting licences during radio moratorium, [15.130] two to a licence area, [15.120] commercial television licences, [15.60], [15.70] audience reach, [15.80] datacasting transmitter licences, and, [15.100] directorship restrictions, [15.110] foreign ownership, [15.50] one to a licence area, [15.90] community broadcasting services, [15.50], [15.360] Competition and Consumer Act, [15.370], [15.490] Broadcasting Services Act, and, [15.380] merger clearances and authorisations, [15.410]–[15.440] merger provisions, [15.400]–[15.440], [15.490] non-economic consequences of mergers, [15.490] concentration of ownership, [15.20], [15.30]

P – Index Ownership and control — cont commercial viability, and, [15.30] rationale for restrictions, [15.30] consolidation of ownership, [15.160] control, [15.210] ACMA’s role, [15.220], [15.270], [15.320] associates, [15.230] board of directors, [15.230] company interests, [15.230]–[15.260] deemed control, [15.240] dividend interests, [15.260] exercise of control, [15.230] freedom of speech, effect on, [2.100] legislative essay, [15.220] multiple licences, [15.230] newspapers, [15.230] opinions on control, [15.270] shareholding interests, [15.230], [15.260] tracing ownership, [15.250] voting interests, [15.230], [15.260] convergence of ownership, [14.10] internet and social media, [14.10] Convergence Review, [14.10], [15.530] cross-media mergers, [15.150], [15.520] associated newspapers, [15.180] disclosure of relationships, [15.190] “new media”, [15.520] prior approval of transactions, [15.290] regional protections, [15.200] unacceptable diversity, [15.160], [15.290], [15.310] unacceptable three-way control, [15.170], [15.290] cross-media restrictions reforms, [15.520]–[15.530] repeal of rules, [14.1190], [15.50] datacasting transmitter licences, [15.100] restrictions during radio moratorium period, [15.130] diversity of ownership, [15.30], [15.530] enforcement of restrictions, [15.280] articles of association, [15.280] notice to remedy, [15.310] Finkelstein report, [14.10], [15.530] 5/4 points system, [15.160] Foreign Acquisitions and Takeovers Act, [15.500] foreign ownership, [15.20], [15.40] arguments for repeal, [15.40] repeal of rules, [15.40] government policy, and, [15.10] internet and social media, [14.10], [15.10] internet news sites, [15.520] narrowcasting services, [15.380] “new media” Finkelstein report, [14.10], [15.530] reforms, [15.520]–[15.530] regulation, [14.10] notification requirements, [15.320], [15.330] overview, [15.10], [15.40]

policy background paper, [15.530] public interest considerations, [15.10], [15.160], [15.370], [15.490], [15.520], [15.530] Register of Controlled Media Groups, [15.160]

P Parliament broadcasting standards, [14.960] contempt — see Contempt of parliament defamation, [3.540] free speech historical development, [2.20] Parliamentary broadcasts — see also Election broadcasts federal parliament, [4.510], [4.550] guidelines for filming and photography, [4.560] public proceedings, [4.550] radio, [4.530] television, [4.540] webcasts, [4.520] radio broadcasts, [4.530], [4.550] access to proceedings, [4.530] compulsory broadcasts, [4.530] states and territories, [4.570] televised broadcasts, [4.540], [4.550] guidelines and conditions, [4.540] Parliamentary privileges — see also Contempt of parliament abuse of privilege, [4.40] breach of privilege, [4.200] referral to committee, [4.200] Commonwealth provisions, [3.730], [4.90] absolute prohibitions, [4.90] constitutional validity, [3.730], [4.170] court proceedings, [4.90], [4.170] freedom of political communication, [3.730], [4.170] court proceedings, and, [4.80], [4.170] absolute prohibitions, [4.90] administration of justice, [4.90] criminal proceedings, [4.80] legislative intervention, [4.90] limited purposes, [4.80] miscarriage of justice, [4.90] submissions or inferences, [4.80] defamation actions by members, [4.140] initiation of proceedings, [3.730], [4.140] waiver of privilege, [4.140] defamation defences, [3.730], [4.40] Commonwealth provisions, [3.730] debate concerning provisions, [3.730] qualified privilege, [3.790], [3.810], [4.40], [7.220]

1029

Australian Media Law Parliamentary privileges — cont scope of privilege, [3.730] defamatory statements, [4.100] Bill of Rights, and, [4.180] effective repetition, [4.110]–[4.130] prior to debate, [4.100] repetition outside House, [3.730], [4.100] effective repetition, [4.110] Art 9 decisions, [4.120] s 16(3) decisions, [4.130] fair reports of proceedings, [3.790], [3.810], [4.40], [4.70] uniform defamation legislation, [3.820] free speech, and, [3.730], [4.20] immunity from impeachment or question, [4.30]–[4.180] freedom of political communication, [3.730], [4.170] impeach or question, [4.30] definition, [4.90] overview, [3.730], [4.20] parliamentary records, [4.40] court proceedings, use in, [4.80]–[4.90] proceedings in parliament, [4.30], [4.150] meaning, [4.150] necessity test, [4.150] statements outside House, [4.150] statutory definitions, [4.160] statements outside House, [3.730] effective repetition, [4.110]–[4.130] extension of proceedings, as, [4.150] repetition, [3.730], [4.100] waiver, [4.140] Parliamentary records absolute privilege, [4.40] confidentiality, [7.220] court proceedings, use in, [4.80] absolute prohibitions, [4.90] administration of justice, [4.90] criminal proceedings, [4.80] limited purposes, [4.80] miscarriage of justice, [4.90] submissions or inferences, [4.80] defamation defence, [3.790], [4.70] Parliamentary reporting — see also Contempt of parliament absolute privilege, [4.40]–[4.50] fair and accurate reports, [3.800] common law, [3.810] defeat of defence, [3.850] earlier published reports, [3.790] fair, meaning, [3.830] fairness, question of fact, [3.830] proceedings of public concern, [3.800] report, meaning, [3.840] sub judice contempt, [6.760] super-injunctions, [4.60] uniform defamation legislation, [3.820] historical development, [2.20]

1030

overview, [4.10] parliamentary privilege — see Parliamentary privileges public documents, [3.790], [4.70] qualified privilege, [3.790], [3.810], [4.40], [7.220] Passing-off, [8.980] Pay television — see Subscription television Pending proceedings — see Sub judice contempt Personal information Australian Privacy Principles (APPs), [8.30] application, [8.30] journalism exemption, [8.40] use and disclosure, [8.30] Personal secrets, [7.60] Photographing — see Filming or photographing Police informants — see also Whistleblowers concealment orders, [5.120], [5.260] Police investigations reporting, [3.280] “alleged” or “allegedly”, use, [3.280] Political broadcasts — see also Election broadcasts advertisements, [4.640] authorisation, [4.640] election advertisements, [4.640] identification requirements, [4.640] overview, [4.640] political matter, [4.640] guidelines for determining, [4.640] record keeping, [4.640] range of materials, [4.640] Political or government communications — see also Freedom of information — see also National security absolute privilege, [3.750] scope of privilege, [3.750] confidentiality, [7.60] unauthorised use, [7.280]–[7.290] elections — see Elections implied freedom — see Freedom of political communication qualified privilege, [2.90], [3.970] elements of defence, [3.980]

P – Index Political or government communications — cont government or political matters, [3.990] High Court decisions, [3.970] House of Lords decisions, [3.1020] improper purpose, [3.1010], [3.1020] malice, [3.1010] public interest, [3.1020], [3.1200] reasonableness, [3.1000] uniform defamation legislation, [3.820], [3.1040]

Print media regulation — see also Newspapers and magazines — see also Ownership and control complaints, [14.1530]–[14.1560] contempt liability, [6.70] imprint requirements, [14.1480] newspapers, [14.1480], [14.1490] Victoria, [14.1480] legislation, [14.1460], [14.1470] overview, [14.1460] Press Council — see Press Council

Pornography — see also Sexual material classification, [9.640] principles, [9.660] free speech, and, [2.80], [9.630] internet content hosted outside Australia ACMA’s powers, [9.750] internet filtering, [9.780] obscene or offensive material, [9.630] offences, [9.670] overview, [9.630] “prohibited content” and “potential prohibited content”, [9.720]

Prior convictions contemptuous publications, [6.470]–[6.480]

Press Council Adjudication Panel, [14.1560] adjudications, [14.1560] adjudications, [14.1560] publication by the media and Press Council, [14.1560] aims and objectives, [14.1510] complaints procedure, [14.1540], [14.1550] adjudications, [14.1560] handling of complaints, [14.1560] lodgement of complaint, [14.1530]–[14.1560] time as to complaint, [14.1550] types of complaint, [14.1530] who may lodge complaint, [14.1540] effectiveness, [14.10], [14.1570] establishment, [14.1500] freedom of expression, and, [14.1510], [14.1520] membership, [14.1500] privacy standards, [14.1520] review of operation, [14.10] statement of principles, [14.1520] Pre-trial discovery orders defamation actions, [7.590]–[7.600], [7.610] effective remedy, [7.590] failure to comply, [7.610] freedom of political communication, [7.610] identity of wrongdoer, [7.590], [7.600] compelling to disclose, [7.590], [7.600] newspaper rule, [7.530], [7.580], [7.610] overview, [7.590] political discussion, [7.610]

Privacy — see also Invasion of privacy Australian Privacy Principles (APPs) application, [8.30] journalism exemption, [8.40] personal information prior regime, [8.20] breach of confidence, [7.60], [7.240] common law, [8.70] communications — see Privacy of communications court records, esearching, [5.710] free speech, and, [8.10] meaning, [8.10] National Privacy Principles, [8.30] overview, [7.60], [7.240], [8.10] personal information, [8.20] use of information, [8.30] Press Council standards, [14.1520] public interest, and, [8.10], [8.1090] state and territory legislation, [8.60] Privacy Commissioner role, [8.50] Privacy of communications legislation, [8.110] listening devices, [8.110] exceptions, [8.230], [8.250], [8.270] journalist as party to conversation, [8.210]–[8.220] party to conversation, [8.170]–[8.200] private conversations, [8.170]–[8.180] prohibitions, [8.210], [8.280]–[8.290] videotape or film, [8.270] overview, [8.110] surveillance devices, [8.370] exceptions, [8.380] party to conversation, [8.370] private activity, [8.370] private conversation, [8.370] telecommunications interception, [8.110], [8.90] application of prohibition, [8.100], [8.110] communication, meaning, [8.90]

1031

Australian Media Law Privacy of communications — cont contravening prohibition, [8.140] dealing with intercepted information, [8.120], [8.140] email, [8.90], [8.110] exceptions to prohibition, [8.110] mobile telephones, [8.110] record, meaning, [8.90] scope of legislation, [8.90] telecommunications service, [8.110] telecommunications system, [8.110] Privilege absolute — see Absolute privileges confidential sources, [7.510], [7.650] fair comment, honest opinion and justification, relationship with, [3.1230] journalists’ — see Journalists parliamentary — see Parliamentary privileges professional confidential relationship privilege, [7.650] evidence, and, [7.650] reform, [7.650] qualified — see Qualified privilege solicitor-client communications, [3.740] Pseudonym orders — see also Concealment orders — see also Non-publication orders application denied, [5.120] granted, [5.120], [5.280] Public domain confidential information, disclosure of, [7.80]–[7.220] authenticity or veracity of source, [7.170]–[7.190] ever-widening audience, to, [7.140]–[7.160] public record, on, [7.220] purpose of information, [7.200]–[7.210] relative secrecy, [7.110]–[7.120] well-known facts, [7.220] Public interest defamation honest opinion defence, [3.1180] injunctions, [3.1370] subject matter, [3.1160] disclosure of government information, [7.280] free speech, and, [2.10] invasion of privacy defence, [8.590], [8.1090] justified disclosure defence, [7.360] duty of confidence, [7.330] iniquity rule, [7.330]–[7.350] investigative journalism, [7.350] just cause or excuse, [7.330], [7.360]

1032

protection of public safety, [7.330] non-publication orders, [5.210] ownership and control of media, [15.10], [15.160], [15.370], [15.490], [15.520], [15.530] privacy, and, [8.10] scandalising contempt, [6.830] sub judice contempt, and, [6.110], [6.710], [6.750] application of principle, [6.710] balancing approach, [6.730]–[6.750] court proceedings, reports, [6.760] normative approach, [6.720] onus of proof, [6.750] uncertainty in balancing approach, [6.750] whistleblowers, [7.500] Pyramid selling, [13.300]

Q Qualified privilege common law privilege, [3.860] application of defence, [3.830] common convenience and welfare of society, [3.860] exceptions, [3.870] jury trials, [3.860] legal moral or social duty, [3.860] malice, [3.960] political communications, [2.90], [3.970]–[3.1040] public warnings, [3.940]–[3.950] published corrections, [3.930] reciprocal interest, [3.860] retort to defamatory attack, [3.880]–[3.920] uniform defamation legislation, relationship, [3.1100] fair reports of proceedings, [3.800] court proceedings, [3.790], [3.810] defeat of defence, [3.850] earlier published reports, [3.790] fairness, [3.830] parliamentary proceedings, [3.790], [3.810], [4.40], [7.220] proceedings of public concern, [3.790] report, meaning, [3.840] uniform defamation legislation, [3.820] invasion of privacy, and, [8.970] overview, [3.780] parliamentary proceedings, [3.790], [3.810], [4.40], [7.220] political communications, [2.90], [3.970] elements of defence, [3.980] government or political matters, [3.990] High Court decisions, [3.970] House of Lords decisions, [3.1020] improper purpose, [3.1010], [3.1020] malice, [3.1010]

R – Index Qualified privilege — cont public interest, [3.1020], [3.1160] reasonableness, [3.1000] uniform defamation legislation, [3.820], [3.1040] provision of information, [3.1050] apparent interest, [3.1060] belief in truth of imputations, [3.1070], [3.1080] enquiries to verify information, [3.1080] interest of recipient, [3.1020] loss of defence, [3.1090] opportunity to respond, [3.1080] published in the course of giving information, [3.1070] reasonableness of publisher’s conduct, [3.1080] rumour or speculation, [3.1080] public documents, [3.790], [4.70] copies, summaries or extracts, [3.790] defeat of defence, [3.850], [4.70] whistleblowers, [3.770]

R

Race asylum seekers, [2.110] definition, [9.190] national identity, and, [2.110] Racial vilification aboriginal people descent groups, [9.230] race-based vilification, [9.240]–[9.250] broadcast codes of practice, [9.30] causal relationship, [9.240], [9.270] because of, meaning, [9.240]–[9.260] on the ground of, meaning, [9.270] Commonwealth law, [9.30] causal relationship, [9.240], [9.270] defences, [9.290] likely to offend, insult, humiliate or intimidate, [9.60], [9.80], [9.100] political communications, [9.30] public act, [9.40] remedies, [9.360] complainants, [9.280] defences, [9.290] reasonably and in good faith, [9.290], [9.300]–[9.310], [9.320]–[9.350] statutory provisions, [9.290] ethno-religious groups, [9.200], [9.210], [9.220], [9.260] free speech, and, [2.80] freedom of political communication, [9.30] imputations, identification, [9.50] inciting hatred, contempt or ridicule, [9.90] capacity to incite, [9.110] hatred and contempt distinguished, [9.120]

historical context, [9.180] humour or jokes, [9.180] incite, meaning, [9.90] meaning, [9.100] reasonable person standard, [9.130] relevant factors, [9.140]–[9.150] serious transgressions, [9.160]–[9.170] social context, [9.180] International Covenant on Civil and Political Rights, [9.20], [9.30] likely to offend, insult, humiliate or intimidate, [9.60], [9.70] meaning, [9.60], [9.70] objective test, [9.80] online material, [9.70] public act, [9.40] race, [9.190] aboriginal descent groups, [9.230], [9.240]–[9.250] common history, [9.210] definition, [9.190] ethno-religious groups, [9.200], [9.210], [9.220], [9.260] remedies, [9.360] apologies or retractions, [9.360] damages, [9.360] respondents, [9.280] state or territory law, [9.30] aboriginal descent groups, [9.230] causal relationship, [9.240], [9.270] criminal offence, [9.30] defences, [9.290] ethno-religious groups, [9.220] inciting hatred, contempt or ridicule, [9.90]–[9.230] on the ground of, meaning, [9.270] political communications, [9.30] public act, [9.40] remedies, [9.360] urging force or violence, [9.500] Racist speech — see Racial vilification Radio — see also Commercial radio services — see also Digital radio contempt liability, [6.70] copyright protection, [12.120] defamation, [3.440], [3.560], [3.560] multiple places of publication, [3.480] republications, [3.450], [3.560] interviews — see Interviews licences — see Broadcasting licences ownership and control — see Ownership and control parliamentary broadcasts, [4.530] access to proceedings, [4.530] compulsory broadcasts, [4.530] states and territories, [4.570] regulation of services — see Broadcasting services transmission arrangements, [14.450]

1033

Australian Media Law Referral selling, [13.300] Religion definition, [9.480] indicia, [9.480] Religious vilification — see also Blasphemy codes of practice, [9.510] context of publication, [9.470] defences, [9.490] ethno-religious groups, [9.200], [9.210], [9.220], [9.260] inciting hatred, contempt or ridicule, [9.120], [9.460] example, [9.110] meaning, [9.90]–[9.100] reasonable person standard, [9.130], [9.460] relevant factors, [9.140]–[9.150] overview, [9.450] prohibited conduct, [9.450]–[9.470] remedies, [9.360] statutory provisions, [9.220], [9.450], [9.490] urging force or violence, [9.500] anti-terror laws, [9.500] Reporting of elections — see Election reporting Reporting of parliament — see Parliamentary reporting Republications defamatory material, [3.450] disclaimers, [3.450] justification defence, [3.670] original publisher, [3.450] Reputation — see also Defamation free speech, and, [3.10] truth and, [3.20] Research or study copyright infringement, exception fair dealing, [12.410] students, [12.410] Reviews or criticisms fair dealing defences copyright infringement, exception, [12.410] Royal commissions absolute privilege, [3.740] contempt laws, [6.50] contempt liability, [6.80] appointment by Crown, [6.80] appointment by statute, [6.80]

1034

S

Satellite licences declared service-deficient area, [14.560] digital transmission, [14.560]–[14.570] reception certificate, [14.560] regional areas, [14.1180] remote terrestrial licence areas, [14.560] service provision, [14.570] signal deficient areas, [14.560] Viewer Access Satellite Television (VAST), [14.560] Western Australia TV3 licence area, [14.560] Satire defamation, [3.200] Scandalising contempt boundaries of offence, [6.820] court proceedings, [6.810] summary procedure, [6.100] effectiveness of offence, [6.810] elements of offence, [6.820] inherent tendency to impair, [6.840] fair comment defence, [6.930] free speech, and, [6.830] freedom of political communication, [6.940] conformity with, [6.940] political speech, [6.940] impropriety or impartiality attacks, [6.830], [6.890]–[6.920] examples, [6.900]–[6.920] institutional bias, [6.920] jurisdiction, [6.810] overview, [6.810],[6.840] penalties, [6.950] right to criticism, [6.830] scurrilous abuse, [6.830], [6.840]–[6.880] effect on public confidence, [6.860] non-contemptuous example, [6.860]–[6.880] time of offence, [6.840] Sedition — see also Anti-terrorism law common law, [10.40], [10.60] seditious intention, [10.40], [10.50] disaffection, meaning, [10.40] good faith defence, [10.90] good faith, meaning, [10.90] history, [2.20], [10.60] United Kingdom, [10.40] United States, [10.40] new statutory offences, [10.70] seditious intention, [10.80] use of force or violence, [10.80] overview, [10.40] seditious intention, [10.40], [10.50] limits on scope, [10.80] state and territory laws, [10.60]

S – Index Sedition — cont United States, [10.40] clear and present danger test, [10.40] unlawful associations, [10.110] attending meetings, [10.110] financing, [10.200] recruitment advertisements, publication, [10.210] Sexual material — see also Obscene libel — see also Pornography classification scheme, [9.640] books and magazines, [9.640] computer games, [9.640] Sexual orientation vilification on grounds of, [9.520] Slander common law, [3.70], [3.1500] libel, distinction, [3.70] overview, [3.70] statutory offence, [3.1500] Slander of title — see Injurious falsehood Social media — see also Internet breach of confidence criminal contempt, [7.490] court reporting, use in, [5.640] false stories, [11.250] influence, [14.30] offensive material failure to remove, [9.80] racial or religious vilification, [9.260], [9.320]–[9.350] overview, [14.10] personal injury arising from publication, [11.250] Sound recordings copyright protection, [12.120] underlying content, [12.120] mechanical or derivative rights, [12.120] ownership commissioned works, [12.210] exceptions, [12.210] first ownership, [12.210] Sources of information — see Confidential sources — see Freedom of information Special Broadcasting Services (SBS) anti-hoarding regime, [14.1240] applicable events, [14.1240] compliance with conditions, [14.1240] obligation to accept offer, [14.1240] operation of regime, [14.1240] whole of event, [14.1240]

codes of practice, [14.70], [14.950] complaints procedure, [14.1450] datacasting services, [14.70] election broadcasts, [4.590] ban on advertising, [4.600] functions and duties, [14.70] principal function, [14.70] political broadcasts, [4.640] regulatory regime, application, [14.70] Sponsorship false representations, [13.170] Spouse communications absolute privilege, [3.720], [3.760] States’ powers freedom of political communication, [2.90] Stop writs sub judice contempt, [6.770] Sub judice contempt abuse potential, [6.770] administration of justice, [6.110], [6.250], [6.790] intention to interfere, [6.140] prejudgment principle, [6.500]–[6.520] protection of participants, [6.250] tendency to interfere, [5.190], [6.130], [6.220]–[6.240] alternatives, [6.790] analysis, [6.790] civil proceedings, [6.190] inactive proceedings, [6.210] prejudgment principle, [6.500]–[6.520] contemptuous publications, [6.250] civil proceedings, [6.500]–[6.520] filming or photographing accused, [6.560], [6.610]–[6.630] judges and magistrates, [6.260]–[6.270] juries, [6.280]–[6.490], [6.520] parties to proceedings, [6.530]–[6.550] probable tendencies, [6.640]–[6.700] witnesses, [6.560]–[6.600] coroners, [6.260], [6.570]–[6.600] court proceedings, reports, [6.760] comments on proceedings, [6.510] conditions for protection, [6.760] fair and accurate, [6.760] public interest, [6.760] criminal proceedings, [6.180],[6.790] extradition proceedings, [6.180] hung jury, [6.180] intention by DPP to serve presentment, [6.180] re-trials, [6.180], [6.190] declining utility, [6.790] defences, [6.750] innocent publication, [6.140] elements of, [6.130]

1035

Australian Media Law Sub judice contempt — cont embarrassment caused by prejudicial material, [6.270] filming or photographing accused concealment of face, [6.630] identification issues, [6.610]–[6.620] witnesses, and, [6.560] free speech, and, [6.250] prejudgment principle, [6.510] public interest, and, [6.110], [6.710], [6.720], [6.750] freedom of political communication, [6.780]–[6.790] balance of interests, [6.780] political speech, [6.780] gagging writs, [6.770] imminent proceedings, [6.200] inactive proceedings, [6.210] influence of judiciary, [6.260] innocent publication defence, [6.140] internet, [6.150], [6.160] defamation actions, [6.160] time of publication, [6.160] judges, [6.260], [6.790] appearance of decisions, [6.270] embarrassment, [6.270] indirect bid by media to influence, [6.260], [6.270] lenient sentences, [6.270] pre-trial publicity, [6.260], [6.790] juries, [6.260] [6.280], [6.790] civil proceedings, [6.520] confessions by accused, [6.450]–[6.460] criticising or disparaging accused, [6.350]–[6.390] prejudgment principle, [6.520] prior convictions, [6.470]–[6.480] prior offences or charges, [6.490] statements of guilt, [6.290]–[6.310] statements of innocence, [6.320]–[6.340] sympathy for accused, [6.430]–[6.440] sympathy for victim, [6.360], [6.400]–[6.410] jurisdiction, [6.160] jurors, by, [6.800] Australian position, [6.800] internet and social media, publication, [6.800] United Kingdom position, [6.800] liability, [6.140] intention to interfere, [6.140] publisher, [6.160] test of liability, [6.220], [6.230] magistrates embarrassment, [6.270] influence by media, [6.260] mens rea, [6.140] intention to interfere, [6.140] knowledge of pending proceedings, [6.140] overview, [6.110], [6.120] parties to proceedings, [6.530]–[6.550]

1036

Australian position, [6.540], [6.550] improper pressure, [6.550], [6.710] New Zealand position, [6.540] tendency to influence, [6.540] unlawful threats or assertions, [6.550] penalties, [6.950] pending proceedings, [6.140], [6.170] civil proceedings, [6.190] criminal proceedings, [6.180], [6.190] imminent proceedings, [6.200] inactive proceedings, [6.210] prejudgment of issues, [6.500] statements of guilt, [6.290]–[6.310] statements of innocence, [6.320]–[6.340] prejudgment principle, [6.500]–[6.520] Australian position, [6.520] free speech, and, [6.510] United Kingdom approach, [6.510] probable tendencies, [6.640] form of publication, [6.660]–[6.700] identity of statement maker, [6.670] irrelevant factors, [6.700] lapse between publication and proceedings, [6.680] location of audience, [6.650] other prejudicial publications, [6.690] size of audience, [6.650] public interest, and, [6.110], [6.710], [6.750] application of principle, [6.710] balancing approach, [6.730]–[6.750] court proceedings, reports, [6.760] normative approach, [6.720] onus of proof, [6.750] uncertainty in balancing approach, [6.750] publication of material, [6.130], [6.150]–[6.160] internet, [6.150], [6.160] jurisdiction, [6.160] persons involved, [6.150] place of publication, [6.160] supply between media organisations, [6.150] publisher’s liability, [6.160] social media, publication, [6.150] stop writs, [6.770] tendency to interfere, [5.190], [6.130], [6.220]–[6.240], [6.640] archived material online, for, [6.230] courts’ approach, [6.220]–[6.230] effect of publication, [6.190] nature of publication, [6.230] practical reality, [6.220] probable tendencies, [6.640]–[6.700] proving tendency, [6.240] substantial risk, [6.220] time of publication, [6.230] time of publication, [6.230] internet, [6.160], [6.230] lapse between proceedings, and, [6.680]

T – Index Sub judice contempt — cont witness interviews, [6.560] comparison of decisions, [6.600] prohibition, [6.560]–[6.600] real or substantial risk, [6.560] witnesses, [6.560]

subjective test, [8.370] prohibition, [8.370] statutory provisions, [8.830] trespass, [8.690] unlawful activities, [8.370]

T Subscription radio services broadcasting licences, [14.100], [14.670] breach of conditions, [14.910], [14.920] narrowcasting services, [14.110], [14.670] ownership and control, [15.380] Subscription television services — see also Digital television anti-siphoning regime, [14.1230] applicable events, [14.1230] delisting events, [14.1230] operation of regime, [14.1230] reform, [14.1250] report, [14.1250] types of rights, [14.1230] Australian content, [14.1150] annual returns, [14.1150] application of condition, [14.1150] Australian/New Zealand programs, [14.1150] eligible drama programs, [14.1150] expenditure condition, [14.1150] New Zealand programs, [14.1150] pass through providers, [14.1150] US free trade agreement, [14.1150] broadcasting licences, [14.660], [15.370] conditions, [14.740], [14.790] prohibited classifications, [14.740] digital television, [14.380] conversion, [14.240] mergers, [15.70] narrowcasting services, [14.110] overview, [14.100] ownership and control, [15.370], [15.380] Subversive speech, [2.80] Suppression orders — see also Non-publication orders criteria for grant, [5.420]–[5.440] non-publication orders distinguished, [5.420] Surveillance devices — see also Listening devices communication of content, [8.390] court authorisation for publication, [8.400]–[8.420] exceptions, [8.380], [8.400]–[8.420] overview, [8.370] party to conversation, [8.370] private activity, [8.370] subjective test, [8.370] private conversation, [8.370]

Talkback radio/television defamation, [3.450], [3.560], [3.1270] innocent dissemination defence, [3.1250] telephone interception, [8.110] Tape recordings court proceedings, of, [5.30], [5.590] courts’ powers, [5.590] permissive approach, [5.590] telephone conversations, [8.110] Telecommunications interception application of prohibition, [8.100] logger tapes of talkback, [8.110] passage of communications, [8.100] recorded conversations, [8.110] communication, meaning, [8.90] contravening prohibition, [8.140] dealings with intercepted information, [8.120] contravening, [8.140] email, [8.90], [8.110] exceptions to prohibition, [8.130] legislation, [8.90] mobile telephones, [8.110] News of the World “phone hacking” scandal, [2.90] overview, [8.90] record, meaning, [8.90] recorded conversation, [8.110] telecommunications service, [8.110] mobile telephones, [8.110] telecommunications system, [8.110] Telephone News of the World “phone hacking” scandal, [2.90] nuisance calls, [8.820] Teletext excluded broadcasting services, [14.50] Televising court proceedings changing attitudes, [5.620] judicial wariness, [5.620] media’s position, [5.610] overview, [5.600]–[5.630] prejudice, and, [5.620] statutory provisions, [5.610] technological advances, [5.610]

1037

Australian Media Law Television — see also Commercial television services — see also Digital television — see also Election broadcasts — see also Political broadcasts — see also Subscription television classification of programs, [9.700] contempt liability, [6.70] filming accused, [6.630] defamation, [3.440] liability, [3.560] multiple places of publication, [3.480] republication, [3.450] digital transmission, [14.30] Internet protocol television, [14.30] Internet television, [14.30] licences — see Broadcasting licences ownership and control — see Ownership and control parliamentary broadcasts, [4.540] guidelines and conditions, [4.540], [4.560] states and territories, [4.570] publication, broadcast as, [3.440] regulation — see Broadcasting regulation satellite broadcasting licences, [14.560]–[14.570] sub judice contempt, [6.150], [6.170] subscription, [14.30], [14.100] anti-siphoning regime, [14.1230] narrowcasting services, [14.110] Terrorism — see also Anti-terrorism laws — see also Sedition advocating acts, [9.690], [10.290] broadcasting standards, [10.300] classification scheme, [9.690], [10.240] refused classification rating, [10.240]–[10.290] film, publication or computer game which promote, [9.690] national security, and, [10.10] refused classification rating, [10.240], [10.270] considerations in determining, [10.250]–[10.290] proposed broadening of laws, [10.290] Therapeutic goods advertising, [13.490] broadcasting licence conditions, [14.720] code of practice, [13.550] Tobacco advertisements accidental broadcast, [13.460]–[13.480] broadcast branded imagery in news report, [13.450] deliberate intention, [13.480]

1038

meaning, [13.440] defences, [13.440] definition, [13.440] exemptions, [13.460] incidental broadcast, [13.460]–[13.480] incidental, meaning, [13.460]–[13.470] national standard, [13.460] publishing an advertisement, [13.440] state and territory legislation, [13.440] statutory prohibition, [13.440], [13.460] constitutional validity, [13.440], [13.480] free speech, and, [13.480] rationale for enactment, [13.480] Treason defences, [10.90] Trespass — see also Nuisance consent, [8.670] remaining after withdrawal, [8.680] criminal sanctions, [8.770]–[8.790] damages, [8.720] exemplary or aggravated, [8.720]–[8.740] ejection from land, [8.760] elements of tort, [8.650] entering land without consent, [8.670] access parameters, [8.670] implied consent, [8.670] “walk-ins”, [8.670] filming or photographing, [8.670] aircraft, from, [8.710] other premises, from, [8.700] implied consent, [8.670] remaining after withdrawal, [8.680] injunctions, [8.750] restraint of publication, [8.750] underlying cause of action, [8.750] “walk-ins”, [8.750] leaving objects, [8.690] media conduct, [8.660] observing from aircraft, [8.710] observing from other premises, [8.700] overview, [8.650] “walk-ins”, [8.670] injunctions, [8.750] Tribunals absolute privilege, [3.720] contempt laws, [6.50] contempt liability, [6.80] disclosure of confidential information, [7.690] Triviality defamation defence, [3.1280] Truth criminal defamation, [3.1470] defamation and, [3.20]

W – Index Truth — cont justification defence, [3.670] mitigation of damages, [3.1360] substantial truth, [3.670] free speech, and, [2.50] anti-foundationalist position, [2.50] Enlightenment period, [2.50] marketplace of ideas, [2.50] types of speech, [2.50]

books and magazines, [9.640] computer games, [9.640] Violent threats free speech, and, [2.80] Voir dire open justice principle and, [5.140] purpose, [5.140]

U United States Declaration of Independence, [2.80] free speech, [2.80] clear and present danger defence, [2.80] First Amendment, [2.80] invasion of privacy, [8.450] appropriation, [8.490] disclosure of private facts, [8.470] display in false light, [8.480] unreasonable intrusion, [8.460] negligence actions exhortation cases, [11.310] inspiration cases, [11.300] mimicry cases, [11.290] newsgathering activities, [11.160] on-air ambush cases, [11.320] sedition laws, [10.40] clear and present danger test, [10.40] United States free trade agreement Australian content, [14.1120] commercial television, [14.1120]–[14.1140] subscription television, [14.1150] broadcasting services, [14.1120] overview, [14.1120] Unlawful associations attending meetings, [10.110] definition, [10.110] financing, [10.200] recruitment advertisements, publication, [10.210] seditious intention, [10.110]

V Vilification — see Racial vilification — see Religious vilification — see Sexual orientation

“Walk-ins” trespass, [8.670] injunctions, [8.750]

W

Watergate, [7.350] Whistleblowers — see also Police informants confidential information, [7.500] statutory protection, [7.500] defamation, [3.770] privilege, [3.770] Witness interviews sub judice contempt, [6.560] comparison of decisions, [6.600] prohibition, [6.560]–[6.600] real or substantial risk, [6.560] Witness statements non-publication orders, [5.550] Witnesses concealment of identity, [5.120], [5.350], [5.570] blackmail cases, [5.120], [5.350] extortion, [5.120] New South Wales, [5.420]–[5.440] Northern Territory, [5.450] police informants, [5.120] deterrence or interference, [4.490] contempt of parliament, [4.490] obligations, [7.510] parliamentary broadcasting, [4.550] sub judice contempt, [6.560] veracity, [5.20]

Violence classification scheme, [9.640]

1039