AUSTRALIAN PRESS COUNCIL SUBMISSION TO THE
HOUSE OF REPRESENTATIVES STANDING
COMMITTEE ON LEGAL AND CONSTITUTIONAL
AFFAIRS ON PROTECTION OF CONFIDENTIAL
PERSONAL AND COMMERCIAL INFORMATION
13 October 1992
1. Executive Summaiy
The Council proposes that there be an
im m u n ity from civil or crim in al
liability for the media where:
(a) there is an unlawful disclosure
of con fid en tial p erso n al o r
commercial information to the
media;
(b) that information is published;
(c)
the publication is in the public
in te re st, bein g a m a tte r of
serious concern or benefit to the
public; and
(d) the media is not itself guilty of
criminal or tortious conduct.
2. Submission Details
2.1 The A ustralian Press Council
su p p o rts the p ro p o sitio n th at in
general the law should proscribe the
u n au th o rise d d isclo su re of co n ­
fidential personal or commercial in­
formation held by the Commonwealth.
2.2 The Australian Press Council
p rop oses that w here confidential
information held by the Com m on­
wealth is the subject of unauthorised
disclosure, and that information is
published by the media, the media be
im m une from crim in al and civil
liability if, and only if:
(a)
the relevant media personnel had
no part in the commission of any
b reach
of the
law ,
or
encouraging that breach; and
(b)
the publication is in the public
in terest, b ein g a m a tte r of
serious concern or benefit to the
p u b lic, and not som eth in g
merely of interest to the public.
2.3 The Council argues that there is an
an alogy w ith the public in terest
defence available in respect of the pub­
lication of confidential information. It
is not a breach of confidential informa­
tion to publish information which ex­
poses a crime, fraud, or iniquity: Allied
Mills Industries Ptv Ltd v. Trade Prac­
tices Commission (1981) 34 ALR 105
per Shephard J at 126-141 (cf. A v.
Hayden (1984) 156 CLR 532 per Gibbs
CJ at 545-546). It is not settled whether
the concept of "iniquity" is restricted to
crimes in general, serious crimes or
other breaches of the law, such as the
Trade Practices Act. Nor is it settled
whether publication to the authorities
charged with investigations, or to the
media generally, is protected: see Kirby
P in Spycatcher (AG (UK) v. Heinemann
Publishers Australia Pty Ltd (1987) 75
ALR 353 at 430-434).
Although aspects of the law are not
clear, there is authority in both Austral­
ian and British cases which establishes
a public interest defence to the publica­
tion of confidential information. (Ini­
tial Services Ltd v. Putterill (1968) 1 QB
396; Fraser v. Evans (1969) 1 QB 349;
Hubbard v. Vosper (1972) 2 QB 84;
Malone v. Commission of Police of the
Metropolis (No 2) (1979) 2 All ER 620;
British Steel v. Corporation v. Granada
Television Ltd (1981) 1 All ER 417.)
2.4 A further analogy may be found in
the debate on the introduction of
whistleblower protection legislation.
There are those who believe that sources
who make available information of
public interest should be protected
where that information is made avail­
able to other appropriate authorities or
the media. The Council supports this
view. Others would argue that the
whistleblower be pro tec ted only where
Printed as an insert to Australian Press Council News Vol. 4 No. 3
information is made available to the
authorities, for example, the police, the
DPP, the ombudsman. This view is ex­
pected to prevail in the Bill soon to be
in tro d u ced in NSW to p ro te ct
whistleblowers.
2.5 The Council also finds an analogy
in what is, in the United States, some­
times referred to as the "silver platter"
principle. The proposition is that, where
information is improperly obtained by
another and published by the press
which itself has not been involved in
any criminal or tortious activity, the
press should not normally be penal­
ised. The press in such a case receives
the information on a "silver platter". In
Pearson v. Dodd 410 2 Fd 701, the col­
umnist Drew Pearson was held not li­
able for publishing private information
about Senator Dodd, notwithstanding
that the information had been stolen by
Senator Dodd's staff. However, Chief
Justice Warren Burger did express the
view, obiter, in the Pentagon Papers case
(New York Times v. US (1971) 403 US
713) that the New York Times should
have been liable for the theft of stolen
government information.
2.6 In conclusion, the Australian Press
Council argues for a public interest ex­
ception to protect the media generally
in publishing matters of public interest
when this is obtained from an unlawful
disclosure of confidential personal or
commercial information held by the
Com m onwealth, provided that the
media is innocent of criminal or tortious
conduct. The Council stresses that the
term "public interest" is intended to
mean matters of serious concern or ben­
efit to the public to the public, not mat­
ters merely of interest to the public.
AUSTRALIAN PRESS COUNCIL SUBMISSION TO THE HON. PETER
FOSS, MLC, ON THE PRIVACY OF GRIEF BILL, 1992.
14 October 1992
1. Executive Sum m ary
This submission does not purport to be a
response to the provisions o f the Bill; it is
rather a submission seeking to dem onstrate
that the Australian Press Council provides, as
regards the press, high standards in relation to
the protection of privacy o f a person in times
of grief, balanced by considerations of legiti­
mate public interest - particularly through the
provision of an efficient and inexpensive fo­
rum for the resolution of com plaints against
the press.
2. Privacy in Tim es of G rief
2.1 The first of the C ouncil's principles pro­
vides:
Newspaper readers are entitled to have
news and com m ent presented to them
honestly and fairly, and w ith respect
for the privacy and sensibilities of indi­
viduals.
2.2 In considering com plaints against the
press the Council seeks carefully to weigh the
rights o f the individual and his or her family
against the public interest.
2.3 There will be occasions when there is no
public interest in publishing a photograph, or,
at that time, publishing the nam e of a person
in tim e of grief. Although the Bill does not seek
to address the nam ing of the victim s, there are
analogies in relation to this practice. The ac­
cepted practice is that nam es not be published
until relatives of the deceased or injured have
been advised. The Council's recent Adjudica­
tion No. 593 is an exam ple where the Council
concluded that early publication was not ap­
propriate. The adjudication is published in
the APC News, V ol 4 No 4, N ovem ber 1992.
2.4 In ca ses concerning photographs, the Coun­
cil has regard to the question of whether con­
sent to the photograph being taken has been
given or withheld. One such matter was dealt
with in A djudication No. 518. There a photoraph of a young m an, in a state of obvious
istress after a coronial inquest into his moth­
er's suicide, was taken. Subsequently it be­
cam e apparent that he did not wisn to be
involved w ith any media story. In the adjudi­
cation, which was published in Annual Report
No. 16, the Council upheld the complaint.
2.5 The extent to w hich a photograph identi­
fies a deceased person has also been in issue.
The general view is that photographs of per­
sons killed or seriously injured in accidents
should not norm ally be published if the per­
son can be identified an a if it is likely that it
w ill be seen by his o r her family. This reflects
the acceptance by the com munity of photo­
graphs or films of tragedies identifying peo­
ple from distant lands, w here it is unlikely that
those will be seen by persons close to the
deceased or injured. A n example of this ap­
proach is dem onstrated in Adjudication No.
596 which related to a photograph taken of a
victim of a tragedy at the Kiama Blowhole.
There were strong public interest reasons in
publishing that photograph - the need for
persons to take care in sim ilar circumstances
and the need for the authorities in SA to take
measures to warn the public. The photograph
showing the face o f a deceased child was
published in an area away from where the
deceased's fam ily lived and was unlikely to be
seen by that family.
Given the public interest advantages in publi­
cation, the com plaint was not upheld. The
adjudication is published in the APC News,
Vol 4, No 4, N ovem ber 1992.
2.6 It is relevant to note that the num ber of
com plaints received by the Council in relation
to intrusion of privacy and personal grief is
very small.
3. Conclusion
The principles of the A ustralian Press Council
have been approved and adopted by the Aus­
tralian press. Given the role of the Council in
m aintaining the standards set out in those
principles and in providing an efficient and
effective forum for the hearing of complaints
against the press, and having regard to the
very small num ber o f com plaints the Council
actually receives in relation to the invasion of
privacy in times of personal grief, the Council
suggests that there is no dem onstrable need
for legislation in this area.
AUSTRALIAN PRESS COUNCIL SUBMISSION TO THE NSW LEGISLATION
COMMITTEE ON THE GOVERNMENT PUBLICITY CONTROL BILL 1992.
14 October 1992
1. Subm ission
1.1 This submission relates to the objects of the
Bill, to the Government Publicity Committee, to
one of the functions of that committee in relation
to the content and guidelines issued by the
committee.
1.2 The objects of the Government Publicity
Control Bill are:
(a)
to ensure that, as far as possible, pub­
lic money is not expended on govern­
ment publicity for a partisan political
purpose; and
(b)
to constitute a committee to scruti­
nise, and formulate guidelines for,
government publicity which appears
to the committee to have the capacity
or to be likely to have the capacity, in
whole or in part, of being used for that
purpose. (Clause 3)
The Australian Press Council believes these are
commendable objects and supports the intro­
duction of the Bill.
1.3 The Government Publicity Committee is
(Clause 5) to be constituted and to consist of:
(a)
(b)
(c)
the Auditor-General, who is to be Chair­
person of the Committee;
the Electoral Commissioner; and
the Ombudsman.
The Australian Press Council supports the estab­
lishment of the Government Publicity Commit­
tee, and believes that its membership should
ensure that its activities would be objective and
impartial.
1.4 Among the functions of the committee is the
formulation of guidelines for government policy
(Clause 7 [a]). Under Clause 8 [1] the guidelines
are to recommend the matters to be taken into
account by public authorities in determining
whether to incur expenditure on government
policy. The guidelines may include recommen­
dations regarding the appropriate content and
style, method of dissemination and cost of gov­
ernment publicity (Q ause 8 [2]). The guidelines
and any amendments are to be published in the
Gazette (Qause 8 [4]).
The committee will have powers of enforcement
(Clause 9) and may hear complaints (Clause 11).
The Council supports the provision for the com­
mittee to issue guidelines. It draws the Legisla­
tion Committee's attention to the position it has
previously taken in relation to the allocation of
government advertising. In September 1984, the
Council issued General Press Release No. 63
relating to reports of a major change in long­
standing arrangements for the allocation of gov­
ernment advertising in NSW. In October 1984 the
Council commented (GPR No. 65) on a govern­
ment decision that from 17 September classified
advertising would cease to be placed in the Syd­
ney Morning Herald. While the Council was
unable to conclude that the transfer of advertis­
ing was politically motivated, it proposed that
government advertising be subject to procedures
for public tender to an independent board. When
a system of tendering was introduced in Queens­
land in 1985 the Council argued that the govern­
ment should constitute a formal and clearly inde­
pendent body to consider those tenders so as to
increase public confidence in these decisions (GPR
No. 74). The committee will no doubt be inter­
ested to know that the Council has been consist­
ent in relation to the withdrawal of advertising
by powerful private interests. In its GPRNo. 85 in
December 1986, the Council was critical of a
decision by Mr Alan Bond to withdraw advertis­
ing in publications of John Fairfax and Sons.
(The relevant General Press Releases are avail­
able in the appropriate Annual Reports for the
years in question.)
2. Conclusion
Accordingly, the Press Council welcomes the
introduction of the Bill, and expresses the hope
that its enactment, and the issuing of guidelines
by the Government Publicity Committee, will
ensure that the incidents referred to in the Coun­
cil's GPRs can be avoided in the future.
Printed as an insert to Australian Press Council News Vol. 4 No. 3