Exam Revision for JN2310 - 2013 Study Period One

Background on Courts - State Courts are known as inferior courts. They are at the bottom of the court structure, also referred to as the hierarchy. District Courts have a wide jurisdiction and can hear most criminal matters excluding murders and treason. Supreme Courts are the highest court within any state and deal with any criminal mater within it's state. An important aspect of Supreme courts is their ability to hear appeals from the state or district courts. Appeals from the Supreme Courts go to the Federal Court System or the High Court of Australia.

There are several Federal Courts such as the Family Court or Federal Court of Australia. The Family Court is in all states and territories and deals with family matters such as divorces, marriage and custody cases. While Federal Courts deal with legislation and bankruptcy matters.

Also part of Australia's system is the Quasi-Judaical body which is a tribunal or commission setup to look into a particular matter. 

Today, Dispute Resolution has become a favoured way to solve matters as it's faster and allows decisions to be made in private between the parties involved.

The legal system in Australia consists of three parts - The Judicial, The Legislative and Executive.

• Judicial - Is the courts. 
• Legislative - The Parliaments and the laws implemented. 
• The Executive - Are Public service that enforce laws such as Police. 
• Common Law in Australia is built upon the principal of precedence.  Doctrine of Precedence requires courts to look to courts superior to them for decisions on similar cases when deciding the decision for the case on hand. 

Quote on Open Justice - "Where there is no publicity there is no justice... Publicity is the very soul of justice."

 
Suppression Orders are sometimes issued by judges to limit the release of information related to a case. Failure to follow a supression order results in contempt of court, more specifically disobedience contempt.

Contempt of Court is concerned with ensuring the media do not become a de-factor criminal investigative body by solving crimes that may affect the official investigation.

The Media's role in covering court cases is to ensure there is no breach of powers between the legislative, judicial and executive.

 When covering cases it is a good idea to familiarise yourself with the what can be discussed at what points. The Journalist's Guide to Media Law by Mark Pearson and Mark Polden discusses a Crime Reporting Timezone.

1. Before court or any suspect has been charged or arrested there is no risk in coverage. 
2. After an arrest - You may only discuss the bare facts and not disclose any information on the identity of the accused. Also need to be concerned with defamation against the accused who has been formally trialed. 
3. After charging - Court appearances or committal hearings should only be discussed if they are a matter of public interest. 
4. During the Trial - Reporting with care as too much can influence jurors and be seen as revealing deliberations of sub-judice contempt. 
5. After appeals and acquittal - There is no risk of sub-judice contempt. 

There are five types of Contempt remembered by the acronym SSRCD.

• Sub-judice contempt - Preventing the court of a fair trial.
• Scandalising the court - Making a mockery of the justice system.
• Revealing Deliberations - Revealing information to jurors or speaking with jurors. 
• Contempt of Court - Improper behavior within a court room. 
• Disobedience Contempt - Not following court orders such as suppression orders etc.

There are three requirements for defamation to occur: 

• Publication
• Implication
• Identification

The above three points must be proved by the plaintiff. 

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Cases to Review...

Doe v. Australian Broadcasting Corporation. (Page 21)

Jane Doe was raped by her husband. When the sentence was announced in court ABC radio broadcasted the stories but identified the real name of the husband. The Judicial Proceedings Report Act 1958 makes it an offence to publish information identifying the victim of a sexual offence.

This case was the first time a journalist had been sued for journalists should also be weary to not reveal details that may be useable in identifying the victim, i.e. street names, suburbs, workplaces etc.

ASIC v. Rich (Page 66)

The NSW Supreme court dealt with the mdea and released documents that should of only been released under exceptional circumstances. The court allowed access to almost all the documents, leaving out just a few. A second application was lodged to access documents however this application was denied.

The lesson in this situation is documents released in open court are easier to access. Journalists should note that they have every right ot request information from a court and should expect access to transcripts from open courts. Access is rarely granted for charge sheets, pre-sentence reports and child protection reports.

Attorney-General v. Times Newspapers Ltd (Page 89)

The Sunday Times in London ran a series of articles about a drug company that's drug affected the development of baby's in the womb. The stories ran were related to public interest. Though the appeal process lead to the court suggesting the media shouldn't pre-judge a case if issues of public interest are relevant in deciding if a story is in contempt. This case concluded justice is better served after courts considered the matter.

E Hulton & Co v. Jones - Case

A newspaper published a story with a fictional character though the name actually belonged to a lawyer, Artemus Jones. The case was successful in proving the newspaper had defamed Mr Jones.

As the case meet the three points required for defamation - publication, imputation and identification.

The man was imputated in the matter, and was identified by name with witnesses who identified the man in the article as being the lawyer, the story was also published.

AFL & anor v.The Age & Ors (Page 294)

The AFL had recently tested a few players under the Anti-Doping code which found 3 players to be subject to taking illicit drugs. The names were to be kept confidential however despite injunctions preventing the release media published the story with the players' names. 

The lesson here is it breached a court order. The case also concluded that just because it's a crime doesn't make it public interest. Public Interest is not excusable if it reveals a crime affecting only one person.

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FOI - Freedom of Information...

Freedom of Information is to do with the public's interest in the administrative decisions of government bodies. 

Although FOI is good there were several problems that meant FOI requests were denied.

• The request unreasonably re-directed agency's resources. 
• Time delays were common. 
• The cost of the application is a factor.
• Too many exemptions are included in the act. 

In Queensland the FOI act is known as the Right to Information Act 2009. 

Keeping Confidences...

Privacy Acts are concerned with breached of Confidence. Confidences can be implied in circumstances. When interviewing a person it should be discussed what is information is on record, on background or off the record.


Breach in Confidence - Implied in circumstances when discussed is is to do with the unauthroied release or use of information.

Ethics & The Law of Copyright - There are moral issues relating to what extent you can borrow someone else's work.

When reproducing the works of others the copyright period should be looked at. If Copyright still applies seek written permission from the license holder.

More on Defamation...

Defamation is a civil law but criminal defamation does exist.

The difference is criminal defamation is the deliberate publishing of information when the accused knows the information to be false.

Defamation needs; imputation which reasonably referrs to the plantiff as the person discussed. It needs to be published to at least one other person other than the two parties involved.

Lee's case 1934 is an example of where a newspaper referred to the plantiff as a different person by using the incorrect salutation. A paper used the title Detective instead of the officer's real title Constable. In actual fact there ended up being two Detective Lee's that wern't actually involved in the story but where implicated as a result of a journalist not checking the officer's correct title. 

Values that a Journalist should hold close... Honesty, Fairness, Independence & Respect for the rights of Others. 

Common Law is also referred to as judge made law.

The High Court of Australia is the highest court of appeal and can change the outcome of a case by re-interpreting laws to suit a changing society.

Common Law - Case Law and Precedent are one in the same! Common Laws are laws that have come about or have been enacted based on court rulings. These laws are developed based on rulings that have been given in older court cases.

Exam Revision Cheats

Preparation for Final Exam; The first section is 10 questions about 100 words for each, Section B is approximately 800 words, six choices answer one questions.

Cases to review: pages 21, 66, 94, 109, 197, 294.

General feedback on assignment 2 - Great to show you've read the material and have used references, need to incorporate your reflection, critical thinking, justification of the issues. Better to show you understand the knowledge and to show how it can be applied to different cases.

Review Ethics and Law... Ethics is not covered as well as Law.

Can refer to cases as part of an argument, when it's about ethics it's about privacy, law and ethics.

Can refer to a case, don't need to quote directly... 

Ethics in Indigenous Reporting

Ethics vary from one community to another. Ethics change according to the time or era. Becoming a custom to the ethics and what's expected in the community or place you at can often be learned through communicators or other local journalists who have experience in that area.

Read a report into the Report on Indigenous Voices in mainstream media.

Portrayal of indigenous people are divided into noble and savage according to Frances Peters-Little, an Aboriginal film-maker who has observed the TV portrayals of indigenous people.

Read Wikipedia's information on Media portrayals of Indigenous Australians. 

Guidelines and Things to know for indigenous reporting

• Labels such as half caste, quarter caste, full blood are usually offensive. So is questions the amount of Aboriginal or Torres Strait Islander blood an indigenous person has is not welcome.

Regional terms used by Aboriginal people to describe each other according to their home country, such as Nyoogar, Murri, Nungah, etc are preferable for accuracy and also helps to not cause any offence. 

Grammar - Do not use acronyms to refer to Indigenous people (e.g. TSI or Abl.) Most aboriginals prefer not to be called Aborigine. 

Most Aboriginal people use the word Indigenous with a capital letter. This applies only to Australian Indigenous people. Pronounciation should also be checked for accuracy. Subtitles should be checked for accuracy of translation. Accurate spelling as well. 

Conduct - Speak in a manner that can easily be understood, as English can often be a second language of the people your interviewing. Do not mimic Aboriginal speech patters if you are using words of the local language. Be sensitive to non-verbal communication. Keep technical words to a minimun (avoid jargon that could make your source feel uncomfortable).

Cross-check with the indigenous people if your story is in-line with what they meant during the interview (integrity and authenticity).

Basic questions to ask during the research phase; Is there a Local Aboriginal Land Council in the area, who are the people in the area, how do they wish to be referred to, Who can I approach to get permission to film or record, Is there anything sensitive or confidential in light of the information you'll be receiving.

Silence - Silence from an interviewee may not mean they don't have a question, it's a sign of listening, reflecting. Don't rush the source or repeat four times, give them time to answer your questions.

Aboriginals: Notion of silence, listening, waiting for support of the community.
Fiji: Silence is not a good thing

Culture in Burma (Mayanmar) may affect a way a journalist is to practice if they haven't previously studied the culture. Their main cultural difference with European nations include changes to dress, speech and manners. 

Their dress is similar to that of India, though in businesses' it's acceptable to wear collared shirts etc. The main difference is in the way you refer to someone. The Burmese people use very age-oriented honorifics. For instance young males are addressed different with Ko while older senior men are addressed differently with U. A speaking vocabulary also exists for speaking to Buddhist Monks.

Burmese society also use a characteristic of feeling that has no English equivalent. It is characterized by hesitation, reluctance or avoidance, to perform an action based on the fear that it will offend someone or cause someone to lose face, or become embarrassed. There is also a concept of power, "hpon," which is the explanation of varying degrees of ethnic socioeconomic, gender differences between those in the society. 

Be careful with your conversations as there are secret police, you are only endangering them by initiating a sensitive conversation, and undercover police abound – do not take any chances.

South-Pacific: Chiefly status, customary channels (New Caledonia), Curtailing of information (ethics imposed by customs), Sua (Samoa), Honorifics.

Unethical Reporting Justified

A Dutchman also a journalist was on holiday in Bali when he was pulled over by a police officer for riding a motorbike without a helmet. The officer than preceded to fine the man but in-turn offered a bribe, in turning allowing the journalist not to receive a fine and no court summons.

The jouranlist submitted a story and helped to expose the corruption with the Balinese police force. 

Is this practice in journalism justified? The man didn't identify himself as being a jouranlist at the time and submitted a story afterwards? Is it justified by the public interest. 

The incident has shone a light on the ugly side of corruption among public officials in Indonesia. A great many tourists and Westerners in Bali can tell you how they paid a bribe to a traffic cop to get out of trouble. It's generally about $20 but it adds up when you consider how many people they stop and "fine" in a shift.

Read more here: News.com.au.

Defamation requires ~ Publication, Defamatory imputation and Identification - First, the grounding of the action on the imputation or imputations pleaded and alleged to flow from the publication of the defamatory matter. Secondly, the question whether or not the falsity of the imputation ought to be an essential ingredient of the plaintiff’s cause of action. Thirdly the plaintiff needs to be identifiable either directly or indirectly.

What about this story, is this unethical? Today Tonight: refugees from journalistic decency.

Journalists who face ethical dilemmas are reminded to ask themselves … 

What should we do in cases like this?Who will be hurt and who will be helped?Is there a better alternative?Can I justify this to other people or to the public?What principles or values can I apply?

Ethics & Moral Reasoning

Ignorance to journalism ethics or the law is unacceptable... 

Plagiarism is not an acceptable attribute of a journalist - Turning in someone else's work as your own. It is also considered plagiarism if you only change just a few words from a press release.

Fabrication is to make up a story for the purpose of deception (Merriam-Webster Dictionary) Speculating on what may of happened is also fabrication.

Jayson Blair is an example of a journalist who had good skills but left his work after producing work that was plagiarised on more than one occasion. Watch a video of Jayson Blair admitting his error here.

Jayson was diagnosed with a bipolar disorder later in 2003.

The most important ethical issues in journalism are the human ones. 

The most difficult thing for journalists is dealing with your name going on the story, but one thing to think before you publish the story is what harm can it do? 

Journalism Ethics: A Short Video Lesson

Journalism Ethics and Rules

Should the promise of confidentiality have limits for Journalists

 Should the promise of confidentiality have limits? Discuss this question from both legal and ethical perspectives and provide an example(s) to illustrate your argument.

Australian Journalists are liable for keeping confidences with their sources. The question is often raised, more so in recent years as to whether a journalist should reveal their sources as evidence when legal action is taken against them. (in Pearson) This question brings dilemmas which involve considering legal and ethical perspectives. Furthermore, recently the Commonwealth Parliament and other states have either amended or considered changes to their "Evidence Acts." (APH)

Before becoming a Commonwealth, Australia operated under the British legal system which operated without a journalist ever being jailed for refusing to reveal a confidential source. (Pearson, page 266) Though since the late 1980s journalists have been jailed for obeying their ethical guidelines. Between 1992 and 1994 journalists from prominent Australian organisations were sentenced for not revealing sources of information made in confidence.

·         Courier Mail Journalist, Joe Budd, was imprisoned for not revealing sources for an article which led to defamation action against the courier mail. (in Pearson)

·         South Australian Advertiser Journalist, David Hellaby was fined for refusing to disclose a source. (The News Manual)

·         Madonna King of The Australian was threatened with contempt prosecutions for publishing material from a Queensland Criminal Justice Commission investigation. (The News Manual)

Journalists like those mentioned above often find themselves in contempt of court. This is due to the journalist holding to their ethical code, to not reveal sources made in confidence.

There have been several calls for Commonwealth Parliament to introduce a framework to protect journalists as summarised by the Queensland Parliamentary Library and Research Service in their Shield Laws for journalists research brief. (QPLRS) A submission to amend the Evidence Amendment (Journalists' Privilege) Bill 2009 lapsed when parliament adjourned pending the 2010 Commonwealth election. (QPLRS; ARK) The amendment sought to expand matters which the court could use at its discretion to determine whether or not to protect confidential sources.

While there is an argument that journalists should disclose the sources of their information. Essentiality a journalist always seeks to reveal the sources of their information as it builds credibility and trust with the public. However, in some situations, information of public concern will not be disclosed to a journalist if the information is not kept confidential. The Media, Entertainment & Arts Alliance (MEAA) code of ethics states keeping confidence is the cornerstone of a journalists' ability to maintain trust:

"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." (MEAA, point 3)

Unfortunately the code of ethics has no legal standing. Though there is a situation that a journalist can decide not to disclose a source by using the 'Newspaper Rule' while in the introductory stage of a defamation action or during pre-trial discovery procedures. (Ingham, page7)

The rule allows the publisher to take responsibility for the content, making the sources identity an unnecessary pursuit. It also prevents improper questions for the sole aim of identifying more sources to be sued. (in Ingham) Pearson mentions several cases through his book where courts have considered the rule. One such case is Mayor's case (2001) which involved an article in the Sydney Morning Herald which alleged conflicts of interest in property deals:

"Mayor's case (2001). An article in the Sydney Morning Herald alleged conflicts of interest in property deals involving a mayor of a suburban council... The newspaper... objected to answering questions  in the interrogatories where the answer would disclose its sources." (Pearson, page 272)

Justice Simpson of the NSW Supreme Court applied the 'Newspaper Rule' and agreed that the newspaper should be excused from "giving any answer to the extent that the answer might identify the source of its information." (AustLII) The 'Newspaper Rule' therefore provides no real safety for journalists as it ceases to apply once the trial begins. (Ingham, page7)

The 'Newspaper Rule' is essentially the closest special privilege a journalist has until the introductory of "Shield laws." Shield laws have been used to protect a journalist from being held in contempt of court if they refuse to give evidence for not disclosing their sources. These laws provide positive outcomes for  democracy as they protect sources who may not come forward otherwise, by promoting the flow of information into the public sphere. (ind Ingham) Although shield laws may seem straight-forward there are concerns that they would be used by spin-doctors to hamper the administration of justice.

In April 2013 the MEAA published a media release calling for a uniform approach to shield laws for journalists, as currently they vary between the states. The release discusses five journalists including Adele Ferguson who said:

"Right now, I am faced with every journalists' most-feared nightmare: comply with a court order to hand over documents that I promised would be kept confidential, or face a jail sentence for contempt of court.” (MEAA, paragraph 6)

In agreement with the MEAA no journalists should be subject to having to reveal their sources of information if made in confidence. Journalism is essential in a transparent democracy and shouldn't be punished for acting in the public interest. (in Change.org) If Australia is to stay true to freedom of the press or as the constitution puts it an implied freedom than a journalist must be able to protect their sources. 

Works cited

AustLII. " Cotter v John Fairfax Publications Pty Ltd [2001] NSWSC 587" In 13 July 2001. Web         8 May 2012.
        URL <http://www.austlii.edu.au/au/cases/nsw/supreme_ct/2001/587.html>

AustLII. "The Implied Constitutional Freedom of Political Communication and Australian        Media Policy." In. 2003. Web 7 May 2012.

        URL <http://worldlii.austlii.edu.au/au/journals/UTSLRev/2003/4.html#Heading70>

Australia's Right to Know (ARK). "Submission to the Inquiry into the Evidence Amendment (Journalists' Privilege) Bill 2009." Inc. April 2009. Web 8 May 2013.
        URL <http://www.aph.gov.au/binaries/senate/committee/legcon_ctte/journalists/
        submissions/sub08.pdf>

Australian Parliament of Australia (APA). "Evidence Amendment (Journalists' Privilege) Bill 2009."
        URL<http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_
        Results/Result?bId=r4091>

Change.org. "Gina Rinehart: Withdraw your subpoenas against Adele Ferguson and Steve   Pennells #pressfreedom." Web 8 May 2012
        URL <http://www.change.org/en-AU/petitions/gina-rinehart-withdraw-your-subpoenas
        -against-adele-ferguson-and-steve-pennells-pressfreedom>

Ingham, Lorraine. "Australian Shield Laws for Journalists: A comparison with New Zealand, the United Kingdom and the United States." Australian National University. Web 7 May   2013.
        URL <http://www.cla.asn.au/Article/ShieldLaws.pdf>

Media, Entertainment & Arts Alliance (MEAA), "Media Alliance Code of Ethics". Web 8 May         2013.
        URL <www.alliance.org.au/code-of-ethics.html>

Media, Entertainment & Arts Alliance (MEAA), "Uniform shield law needed to protect   confidential sources". Inc. 2 April 2013. Web 8 May 2013.
        URL <http://www.alliance.org.au/uniform-shield-law-needed-to-protect-confidential-sources>

Pearson, Mark. Journlaw. "Call for uniform shield laws is worth support, but not an easy fix."

        Inc. 11 April 2013. Web 8 May 2013.
        URL <http://journlaw.com/2013/04/11/call-for-uniform-shield-laws-is-worth-
        supporting-but-not-an-easy-fix/>

Queensland Parliamentary Library and Research Service (QPLRS). "Shield Laws for   Jouranlists." Inc February 2012. Web 7 May 2013.
        URL<http://www.parliament.qld.gov.au/documents/explore/ResearchPublications/
        ResearchBriefs/2012/RBR201203.pdf>

The News Manual. "Contempt & Court reporting in Australia." Inc 2008. Web 8 May 2013.     URL <http://www.thenewsmanual.net/Resources/medialaw_in_australia_03.html>

The Parliament of the Commonwealth of Australia, House of Representatives. "Evidence             Amendment (Jouranlists' Privilege) Bill 2009." Web 7 May 2013.
                URL <http://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r4091_
                ems_4a37cb5b-b745-476b-946a-9b66e8abff1a/upload_pdf/327408.pdf
                ;fileType=application%2Fpdf>

Should a Journalist be liable for the work they produce?

To what extent should journalists be personally liable for their work and exposed to defamation action over their stories?

Journalism is one of the only professions that allows information to be distributed out to a mass of people known as the public sphere. (Simpson) One setback to this is laws regarding defamation which hold a journalist or member of the public, such as a blogger personally responsible for the information they publish. Journalists like other professions are also governed by a code of ethics and standards as set by the Australian Press Council (APC). Part of the standards which journalists abide to is sharing information that is of public interest which can lead to revealing information that some may not like being released. The laws of defamation are constant concerns for journalists.

Defamation is of concern to a journalist as they are held responsible for the work they publish, just like any other citizen or blogger who may defame another. Journalists' strive for publishing information about "people and their activities." (Pearson, page 183) Their work is grounded by the APC's guidelines which include publishing "accurate, fair and balanced reporting." (APC, paragraph 5) One would assume that this would mean their works are published only once they have evidence from an ethical source. If their source is ethical and obtained legally why should a journalist be threatened with legal action for doing their job? Journalists reveal information to keep the public informed on political and social issues. Despite following guidelines, the government sees defamation as a wrong injuring another's reputation.  

Journalists should take responsibility for the works they produce and publish. There are defences in their favour for merely informing the public and holding people to account. Although defamation imposes restrictions on journalists, quality journalism is not lost. (in Pearson) Journalists have several defences, the first is apologising which under the defamation Act is a defence if the plaintiff accepts an offer of amends. (Pearson, page 216) However, should an offer not be accepted truth or justification is next in-line as a defence. As every journalist should have evidence of the claims that justifies the published material is "telling the truth about a man [plaintiff], his reputation is not lowered beyond its proper level, but is merely brought down to it." (AEU, paragraph 4) Quality journalism shouldn't be affected by defamation, in many cases journalists find their employer will assist in defending any defamation action.

Accepting your responsibility for writing and conveying information develops your journalistic skills and fosters accountability and trust with your readers. (in Pearson) Most journalists are members of the Media Entertainment & Arts Alliance (MEAA) which also provides a code of ethics for journalists to follow.  The MEAA code of ethics describes just why a journalist should accept responsibility for their writing:

"They scrutinise power, but also exercise it, and should be accountable. Accountability engenders trust. Without trust, journalists do not fulfil their public responsibilities." (MEAA, paragraph 1)

Fair and accurate journalism that fosters accountability and trust with the public is worth taking responsibility for and attaining.

Works cited

Australian Education Union (AEU). "Defamation and Report Writing." Web 8 May 2012.
        URL        <http://aeutas.org.au/Portals/0/Documents/Services/Legal%20and%20Industrial/Defam
        ation%20and%20Report%20Writing_aspx.htm>

Australian Press Council (APC). "Statement of Principles." Web 8 May 2013.
        URL <http://www.presscouncil.org.au/statements-of-principles/>

Simpson, Lindsay. "Public Sphere." James Cook University. Townsville, IN. 7 March 2012.      Notes via Web 8 May 2012.
        URL <http://www.nickosullivan.id.au/2012/03/public-sphere.html>

Media, Entertainment & Arts Alliance (MEAA), "Media Alliance Code of Ethics". Web 8 May 2013.     URL <www.alliance.org.au/code-of-ethics.html>

Parliamentary Education Office (PEO). "Separation of Powers: Parliament, Executive
        and Judiciary." Inc. 18 October 2012. Web 8 May 2013.
        URL        <http://www.peo.gov.au/students/fact_sheets/separation_powers_parliament_execut
        ive_judiciary.html>

Pearson, Mark & Mark Polden. 4th Edition The Jouranlist's Guide to Media Law. Allen &
                Unwin, 2011. Print

The Advantages & Disadvantages of Austrlaia's System of Governance

    Our federal system of government means that our states have quite different laws in some areas and that the courts in different states come to different conclusions. Discuss the advantages and disadvantages of this system.

The Australian Federal system of government entitles each state and territory to have varying laws. This system of governance allows for courts in different states to come to different conclusions when a court hears a case. The advantages and disadvantages of this system will be discussed further. Each state and territory has the explicit ability to create laws that they may have a vested interest in. Laws within Australia are built upon several doctrines that are specified in the Australian Constitution one of which is ‘separation of powers.’ The principal of precedent or the authority of appellate courts, binds all Australian courts, excluding the High Court of Australia. The Australian system of government allows each jurisdiction to enforce laws according to their interests.

The ability for states to create laws that they may have an interest in comes from the Australian Constitution. Section 51 of the Constitution of Australia specifies the areas, which the Federal Government has legislative power while powers not included are known as ‘residual powers.’ (AustLII) This system has advantages for the Federal Government which is able to introduce laws that will override state legislation if it exists on the matters specified in the section. This section lists 40 matters that the Federal government may legislate on. The introduction reads:

"The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth." (Section 51)

Although this may be seen as a disadvantage the matters covered are those that one would expect a "responsible government" to control such as international trade, taxation, postal and immigration. (Wikipedia) Matters not covered by Federal legislation are left for the states to determine. Commonwealth legislation also prevails should state legislation be inconsistent with the law of the commonwealth:

"When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid." (Section 109)

Furthermore the Australian federal system of government is divided up into three categories; legislative, executive and judicial. (PEO) In Australia there are nine legal systems, though confusing at first it breaks laws up depending upon the state you live in, which may be seen as an advantage for most Australians:

"The eight state and territory systems and one federal system. However, it is the state and territory criminal laws that mainly affect the day-to-day lives of most Australians." (DOFAT, paragraph 6)

The ability for states to have different laws means the courts of each state may come to a different conclusion. While many laws vary throughout the states one law of interest to journalists should be the Defamation Act for the state they reside in. Pearson & Polden specify the main variations in the acts are the roles of judges and the jury:

"Juries are not used in civil trials in South Australia, the ACT or the Nothern Territory, so judicial officers perform all roles in those jurisdictions."(Pearson, page 186)

The absence of a jury in the states mentioned could mean matters are not resolved as "openly" as what they could be if a jury was present. This would affect the decisions of courts in other states, however the inferior courts would look to similar cases resolved by higher courts.

Although Australia's system of governance varies between the states it allows each state to make laws in the best interests of their voters, those in court are still protected and entitled to a fair trial.

Works cited:

AustLII. "Commonwealth of Australia Constitution Act." Web 10 May 2013. 
                URL <http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/>

Australian Government, Department of Foreign Affairs and Trade (DOFAT)."Legal system." Inc February 2012. Web 8 May 2013.
                URL <http://www.dfat.gov.au/facts/legal_system.html>

Parliamentary Education Office (PEO). "Separation of Powers: Parliament, Executive and Judiciary." Inc. 18 October 2012. Web 8 May 2013.
                URL         <http://www.peo.gov.au/students/fact_sheets/separation_powers_parliament_executive_judiciary.html>

Pearson, Mark & Mark Polden." 4th Edition The Jouranlist's Guide to Media Law." Allen & Unwin, 2011. Print

Wikipedia: The Free Encyclopedia. Wikimedia Foundation, Inc. "Responsible government."         31 March 2013. Web 8 May 2013.
                URL <http://en.wikipedia.org/wiki/Responsible_government>

Wikipedia: The Free Encyclopedia. Wikimedia Foundation. "Section 51 of the Constitution of       Australia." Inc. Web. 7 May 2013. Web 8 May 2013.
                URL <http://en.wikipedia.org/wiki/Section_51_of_the_Constitution_of_Australia>

Privacy Laws and Australia

Confidentiality

Intruding into private lives of citizens, even though these people might appear as leading very 'public lives'.

Bodies of law protect people's 'right to privacy.' However, no tort of privacy in Australia.

Right to privacy has not received a great deal of attention until situations like the death of Princess Diana.

Given the rise to several privacy laws in the UK and other European countries.

No common law for right to privacy in 'Australia.'

The Australian Law Reform Commission, recommends that Australia should have a privacy law that identifies several types of invasions; interference with a person's home or family, subjecting someone to unauthories surveillance, interference with or disclosure of an individual's private communications.

ICCPR - International Covenant on Civil and Political Rights

Australia is a signatory to the ICCPR which in article 17 the ICCPR states

Article 17 mandates the right of privacy.^[50] This provision, specifically article 17(1), protects private adult consensual sexual activity, thereby nullifying prohibitions on homosexual behaviour,^[51] however, the wording of this covenant's marriage right (Article 23) excludes the extrapolation of a same-sex marriage right from this provision.^[52] Article 17 also protects people against unlawful attacks to their honor and reputation. Article 17 (2) grants the protection of the Law against such attacks ^[50]

The Australian Government accepts the principal right to privacy. 

Privacy in Australia works on the common law principle - If there is no precedent in Australia what do we do? What does this imply in terms of privacy.

Privacy Act 1988: Confers a degree of enforcement power upon the Federal Court and Federal Magistrates Court to protect privacy but focuses on private information held by government departments and large corporations.Designed to protect a consumer from having their personal details released.

Do we need a privacy tort? - Who would have predicted there would be serious talk of a statutory privacy tort in Australia, giving private individuals who feel their privacy as been breached the right to sue? But then again, who would have predicted a phone hacking scandal to engulf the Murdoch press?

Define: Tort is a common law, a civil wrong.

If you trespass you're liable for trespass if: You enter land or premises without the consent of the occupier, you remain there when permission to be there has been withdrawn, you place an object like a listening device or camera on someone else's land or in their premises.

Nuisance - Very limited area of law - Protects an occupier's use of enjoyment of his or her land from unreasonable interferences. Injuction can be granted or damages, a nuisance has to be persistent and annoying for it to be actionable.

Obscenity and Decency

• As much an issue of public taste as it is of privacy. 
• Good taste / bad taste v.right or wrong. 
• Public test. 
• Decision rest with the publisher and editor rather than the journalist. 
• A range of provision apply to obscene or indecent material. 
• Each state and territory has laws restricting this kind of publication. 

The Confidentiality of a Child - The right to privacy for children is in the best interests of the child partly because as they grow, they will learn to use their rights properly. Read A summary of the rights under the Convention on the Rights of the Child.

Exercise find a story where a journalist has faced jail time due to not revealing a source...  Fox News Reporter Facing Jail For Protecting Source - Mainstream Media Yawns, Raising Questions Of Liberal Bias

Summary of article: US Journalist Jana Winter was assigned by Fox news to cover the aftermath of "The Dark Night Rises” shooting. A few days after the incident Winter revealed information about the alleged killer James Holmes who had sent a notebook to a University of Colorado psychiatrist.

The allegations is that Winter's story was based on information obtained from unnamed law enforcement sources. Furthermore a county judge had previously issued a gag order in the days following the shooting.

The defense argued to the judge that it was necessary to force the Fox News reporter to disclose her sources.

"Sources that were, according to Mr. Holmes (the offender)’ defense attorneys, prevented from discussing the case pursuant to a gag order issued by County Judge William Sylvester."

Unlike the past travails of reporters put in this difficult position, few media outlets—with the exception of Fox News and some conservative blogs—are reporting the story. Never mind that each of these ignoring media services were all to willing to re-report the story after Winter broke it via Fox News.

Intellectual Property

Intellectual Property = Individual moral issue

The MEAA alliance says members engaged in journalism commit themselves to Honesty,  Fairness,  Independence,  Respect for the rights of others.

Using someone else's work implies moral/personal ethics and professional ethics.

Borrowing the words of others v. stealing the work of others; quotes, statements, questions etc (i.e. press releases)

Intellectual Property Law

Plagiarism is enforced by the Australian authorities.

The law of copyright - Significant for the use of other people's work and for the protection of your own work.

Copyright law is embodied in the Copyright Act (1968)

The 4 most significant parts of Copyright are Part 3, 4, 5 & 6. See page 359 of the book for references to Copyright.

Copyright stays active for 70 years once the author or copyright holder dies. Once expired the works can be used without seeking permission from the copyright owner.

Author of a work - Person who has created the work, not the person who has thought of an idea. An idea itself cannot be copyrighted in Australia, however this may differ depending upon the country.

Journalists working for print media own the right to reproduce their work in a book for photocopying purposes but the media employer retain all other rights (e.g. reproduce the work in electronic databases or online)

Freelancers usually hold rights for all uses but need to verify their contracts (rights can also be conferred on the publisher)

Key considerations to reproduce the work of others

Has copyright period expired? Has the copyright holder 'assigned' copyright to you = transfer of ownership (you NEED a written proof of assignment). Copyright holders can also 'license' you to use the material (permission restricted in time)

Defenses

Three main categories - Fair dealing for the purpose of criticism or review, fair dealing for the purpose of news reporting, fair dealing for the purpose of parody or view.

The Australian Copyright Council (ACC) states that 'criticism and review involves making a judgement of either the copyright material used or the underlying ideas expressed in that material.'

Journalists whose primary reason for publication is to report the news can reproduce a reasonable prtion of copyright material.

According to the ACC news is not limited to current events. 'Old material or footage that was never related to a current event, may be relevant to a current news event' (significant for investigative journalist)

Music to accompany news items: must obtain permission (blanket licenses)

Use of audio visual items 

Part IV of the act advices how one may use audio visual items, fair dealing offences apply.

Division 4 of the Act: deals with the duration of copyright for these items.

Disputes on copyright can be resolved amicably.

Trademarks

Trademarked logos are not able to be used on blogs or websites without permission from the holder.

S.52 of the Trade practice Act 1984 protects intellectual property for those who feel their work has been misrepresented.

Action of passing off can be brought against someone who has falsely represented their work or business as that of the plantiff. Issue that also arose in the Internet environment with domain names.

Confidentiality, Sources, Privacy & Intellectual Property

Keeping sources confidential when asked by a court or parliament to reveal them can be punished (fine, jail)

"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." ~ MEAA - Article/Point 3. 

Confidences - Very sensitive issue for AUS journalists. Ethico-legal paradox, Disobedience contempt v. moral obligations.

A breach of confidence is not just an ethical issue though to breach confidence is to break the law.

The law protects confidentiality for lawyers/solicitors but not for journalists. 

Breach of Confidence - A three=point test to determine whether there has been a breach of confidentiality. The circumstances in which the information was imparted must have given rise to an obligation of confidentiality. 

The disclosure of information, even if by accident or mistake will not make a difference for breach of confidence. 

Confidential Information - Can be verbal, written, expressed or implied contract. 

Government information which is not of public relevance / public interest should not be shared. Only if it is of public interest.

Defences to Breach of Confidence

• Legal compulsion: order of the court to disclose information.
• Just cause or excuse: 'justified disclosure' (usually information relating to a crime or a fraud). Breach of confidence in the public interest. 
• Fair report.
• Protected disclosure: disclosure to one specific class of people may be considered in the public interest. 

Disobedience Contempt - Refusing to reveal your sources... No escape clauses in journalism code of ethics or conducts. Commonwealth Evidence Act and Shield laws are similar but no equivalent of the US Journalists' legislation. 

Newspaper Rule - A publisher defendant will not be compelled during...

Protections of publishers against plaintiffs on a fishing expedition. Would protect publishers / authors. 

Crikey (page 15) has a paper located here on Newspaper rule - The best reason for the application of the “newspaper rule” to defamation proceedings so that publisher defendants will not be compelled during preliminary proceedings to disclose the sources on which an article depends was best summarised by Dixon J in McGuiness’s case:

"the special position of those publishing and conducting newspapers, who accept responsibility for and are liable in respect of the matter contained in their journals, and the desirability of protecting those who contribute to their columns from the consequence of unnecessary disclosure of their identity (at page 104). 

In Australia, an exemption from privacy law applies for news-gathering activities only if the reporter and editors can demonstrate that they have established and follow an in-house code of conduct covering matters of personal privacy. 

There is still no real clear definition on what a Journalist is as bloggers etc are changing the defintion.

Readings for this week are Chapter 11 & 12. 

Defamation

"The wrong of injuring anther's person reputation without good reason or justification; calumny; slander or libel."

Defamation Law - First act 1846, 1 January 2006 Uniform Defamation Laws (Defamation Act 2005)

Still notable different in jurisdictions on what Defamation is. 

'defamation matter' - Can be in many forms, articles, reports, artworks, verbal or any other medium.

Three things need to be present for Defamation - Publication, Defamatory imputation and Identification. 

Publication - The act of making something known to another or making it available to be known to another. Applies to broadcast and also applies to those in the public.

Defamatory Imputation is not exactly defined in Australia's act - Anything which may shun a person or effect their reputation.

If one of those aspects are missing there is no way you can be sued for defamation.

Meanings - Literal meanings of words is important for the writer or you as a journalist should exercise care and respect the literal meaning of words. 

Innuendo is also important for you to be aware of when the words or the way a sentence is phrased can convey an innuendo. 

An innuendo may be a simple inference. It may also require proof of some extrinsic or outside fact.

Legal Innuendo and True Innuendo

Defences to Defamation - Like in the case of contempt, your 'intention' in the area of demation is not an issue. 

In other words, you may not have intended contempt or to publish something defamatory about someone, but that is no defence.

• Person's with the same name can sue for the person your writing about within the story. 
• Someone meeting the description of a person who hasn't been named in the report can sue. 
• If reports refers to a small group of people of whom the plaintiff is a member or a representative, this person can sue (even if he/she has not been named) 
• Fictious character has been named. 
• Misspelling a name.

 Limitation Period - With reform laws an individual has now only a year to take defamation action after the publication of the material.

Defamation Laws are not there to restore a person's damaged reputaiton as a person's reputation cannot be restored, it's rather compensated.

Common misunderstandings - Journalists do not get sued for defamation - Incorrect! It is easier for people to sue a journalist than a media organisation. Media organisations in some cases won't protect you once you're taken to court. 

Forget Poor people don't sue - You'd be supried. 

Truth is your best defence - Unde law, 'truth,' 'substantial truth', or 'contextual truth' are defences you may claim. 

In a philosophical sense the notion of truth is debated. 

In the context of DL if you can demonstrate that what you've said is the case, that there are facts and evidence to reveal it, then you may be able to establish a defence of truth.

Contextual Truths, Public Interests is usually one of the best defences. 

Criminal Defamation can result in both civil and criminal prosecutions.

Defamation

Defamation is the wrong harming or damaging of a person's reputation. It is a tort (civil wrong). Defamation laws protect people's reputation - their 'good name.' Actions for defamation can be taken even if there is no course of justice.

How to Identify Defamation - 3 major things necessary for defamation to occur; publication, imputation, identification.

For Defamation to occur there has to be an act of publication making something known to another or making it available to be known to another.  Applies to broadcasting. Defamation laws can also be applied to the public. What is PUBLISHED cannot be unpublished.

Defamatory Imputation - Australia's uniform Defamation Act does not spell out what defamatry imputation is. Basically it is anything that may disparage a person's reputation, cause ordinary people to think less of a person, hold a person up to ridicule, cause other to think something of a person that may not necessarily be true. All these = defamation.

Defamatory Identification - A person claiming that they have been defamed will have to be able to establish that he or she can be identified in connection with the offending material. This does not mean that it is necessary to name people to identify them.

Who cannot be identified - Groups and organisation cannot be defamed (up to a point)

Who cannot be defamed - Corporations of less than 10 people, non-profit organisations and individuals can be associated with larger companies.

Companies, corporations or public bodies barred from taking defamation actions can still sue for negligent misstatement, injurious falsehood, and breaches of the Trade Practice Act.

How can Defamation occur - You do not need to write or say something to publish a defamation. Mime, Street Theatre, Painting, Cartoons = All capable of conveying defamatory information.

The meaning of words - This is a landscape littered with traps for the unwary... Your intentions and intended meaning do not matter and will not stand as evidence within a court.

Literally stating the meaning of the word - Mrs Smith is frequently beaten by her hushband.
Mrs Smith's wife is frequently observed to be battered and bruised.
Mr Smith's wife is frequently observed coming in and out of the hotel on the corner.

Watch a Media Watch episode that was featured in class - Andrew Bold and the Herald Sun on Trial.

The Journalist's Guide to Media Law - Chapter 4 - Open Justice

Open Justice is a concept that the judicial process should be open to public examination.

This would mean that people should be able to sit in the courtroom and observe cases in progress.

By extension the media are seen in the same way as the rest of the public unless a magistrate has offered special privileges to a journalist such as a recording or court transcript.

"In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place, can any of the checks applicable to judicial injustice operate. Where there is no publicity, there is no justice. 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."

The open justice concept was tied closely to the notion that justice was compromised if conducted behind closed doors.

Today - The principle of open justice is reinforced at the highest level - that of the United Nations, Article 14 of the International Covenant on Civil and Political Rights reads (OHCHR 1976)

"1. 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. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children."

While some court proceedings may be closed to the general public most states have exemptions too allow journalists such as the Children's Court allows journalists to sit in and cover stories provided children are not named or witnesses etc.

Page 72 of the Journalists Guide to Media Law speaks of a journalist, Melissa Ketchell (23 November 1999) from the Townsville Bulletin who wrote to a magistrate to be allowed access to a court involving both children and sex. The resulting story - School officer tells of 'rape' - Met the requirements by detailing the circumstances of the case without identifying any of the children involved.

In recent years the use of tape recorders has been allowed - However if permission is not first sought from the magistrate your likely to be seen as contempt of court.

Open Justice & Court Contempt

Open justice is a principle not a right.

The judicial process should be transparent and open to public examination. It is a principle that can be denied or limited in both court cases and public debates (non-publication orders, suppression orders).

Limitations - Restrictions vary in different jurisdictions.

Access to Courts - Journalists have no more rights than any other citizen in a courtroom. Some privileges (at the discretion of the judge or set out in statues). Privileges include sitting at the bench press, being able to take notes, audio taping and video recording, use of social media.

Restrictions on court documents - Affidavits, Documents from committal hearings (except in NSW), Transcripts and documents related to previous cases.

Court Orders - suppression orders, non-publication orders, pseudonym orders.

Challenging restrictions on access - Can you challenge these orders, How? On what grounds? Contact the magistrate and ask for the restriction to be lifted.

Secret Justice - Mental health, alternative dispute resolutions & matters of national security.

Contempt of Court - There are five main categories.

• Sub-judice contempt
• Scandalising the court. 
• Revealing the deliberations of juries
• Contempt in the face of the court
• Disobedience of contempt. 

Sub-judice is trial by media, ill-defined in many respects, sub-judice period from the arrest.

Revealing Deliberations - Common law prohibition on speaking to jurors after a trial.