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Panpa Bulletin : July 2007
PANPA Bulletin July 2007 33 media matters Media access to public information is on the political agenda now that the media groups have joined to form the Australia's Right to Know campaign in the lead-up to the federal election. Media lawyers and journalists kept the topic alive at an evening seminar on media restrictions and suppression hosted by the Communications and Media Law Association (CAMLA) in mid-June. FOI editor for the Seven Network Michael McKinnon joined Banco Chambers barrister Sandy Dawson and Mallesons Stephen Jaques senior associate Justine Munsie to debate the increase in legal restrictions on the media. After explaining the disappointments and frustrations of freedom of information applications, appeals and court challenges, McKinnon suggested the following job description for his role. "To be an FOI editor is to be an incur- able and absolutely stupid optimist," he said. He said the media were the only institu- tions that could be relied upon to protect the public's right to know because politi- cians at all levels and of all persuasions continued to breach that trust. The Queensland Government was a prime example, he said, with Premier Peter Beattie changing his attitude over the course of his career. "Beattie supported the FOI Act during the time of Joh Bjelke-Petersen, but now has been found to deliberately thwart the FOI Act," McKinnon told the seminar. "If anything, the Commonwealth is worse." The antipathy to transparency in government was bipartisan, he suggested, with the Labor Party already backing away from a tightening of the legislation 'be- cause they now have a sniff of victory'. Despite the obstacles, McKinnon said he still believed in the value of FOI applica- tions as an investigative research tool. "If journalists can pursue the issues and find the truth you really can have an impact on public policy," he said. He was particularly critical of the use of 'conclusive certificates' by government ministers, a device whereby they can exempt documents from FOI release on the grounds that their release would be contrary to the public interest. It was Federal Treasurer Peter Costello's use of such a mechanism that prompted McKinnon's unsuccessful appeal to the High Court last year. "The certificate allows politicians to escape public scrutiny," he said. "There is no test applied to the value of the release of documents, only to whether the certificate is contrary to the public interest." The lawyers focused most of their discussion on NSW laws restricting the identification of children involved with court proceedings and court rules on me- dia access to documents. Mallesons Stephen Jaques senior associ- ate Justine Munsie pointed to the litany of state-based restrictions throughout Australia such as the variations on listening devices legislation which featured 'beauti- ful little quirks'. But both she and Banco Chambers' Sandy Dawson devoted the bulk of their presentations to the technicalities of section 11 of the Children (Criminal Proceedings) Act 1987, which has such se- vere restrictions that the media are prohib- ited from identifying children involved in court cases before or after those proceed- ings have been finalised, even if the child has become an adult or has since died. This was the law under which talkback radio host Alan Jones was fined $1000 and placed on a nine month's good behaviour bond in April this year after he named a juvenile witness in a murder trial. "Because of the way it is worded it does restrict the media in ways the media think impractical," Munsie said. "The restriction on not naming de- ceased children becomes almost ridiculous when children are reported upon years after their death." She used as an example the murder of nine-year-old Samantha Knight, who dis- appeared from Bondi in eastern Sydney in 1986. Despite the wide publicity surround- ing the case, technically the media could not name the child victim from the instant her murderer had been charged. Dawson looked at the few recent interpretations of this complex piece of legislation. "The problem for the media is that in making an application and in assessing whether you can name someone there is very little judicial assistance," he said. "This section prohibits the identifica- tion of a child forever. "Once prohibition applies it is there to stay. It is not to be underestimated. There should be some legislative revision of this provision because of its draconian nature." Dawson also compared the approach- es of the Federal Court and the NSW Supreme Court to the release of docu- ments to the media. He cited cases show- ing the Federal Court was more willing to release pleadings to journalists, despite a Supreme Court practice note suggesting there should be a bias towards granting their release. All this will be grist to the mill of the newly formed Australia's Right to Know coalition of media outlets as it goes about the task of auditing the state of free speech under the direction of former NSW Ombudsman Irene Moss. The audit is giving a special focus to laws impacting on media access to information, restrictions on them dis- seminating that information, and the general public's right to be informed. FOI and court restrictions head their hit-list of items of concern. Professor Mark Pearson. Obstacles to FOI When it comes to court access, it's often a case of closed doors for the media, writes Mark Pearson.
August September 2007