The Law and Media Censorship in Australia : Melbourne Indymedia

Introduction

Although since 1992 free speech has been protected in the constitution of Australia, the government and other public figures with power and access to high-powered lawyers have been finding ways within the law to make our right to free speech conditional on what we speak and about whom we speak it.

The current Howard government is guilty of using many tactics to control the media and public knowledge about its goals, mistakes and policies. One of John Howard’s Principles is that he governs Australia for the “mainstream”; his aim is for Australians to feel “relaxed and comfortable” and believes that “politics should not stir the passions of the people” and “should be kept off the front page of the news”. (p 31 Hamilton 2007)

In order to achieve this atmosphere of political disengagement all argument about politics needs to be kept out of the public eye, especially critical opinions or scandals of the government which can “stir the passions of the people”.

This essay looks at some of the ways that the law, litigation or government procedures and policies have been used to suppress dissent and provide exceptions to the law protecting free speech in Australia. Focusing on:

(1) How the Howard government has silenced its own ministers, public servants and bureaucrats by forbidding them to speak with the media; instead forwarding all calls to deliberately unhelpful press secretaries.

(2) How the government keeps a tight lid on its internal documents by refusing or delaying document and by punishing and intimidating leakers.

(3) How the press has been constantly under the threat of being accused of defamation and how it has led them to impose self–censorship.

(1)

To ensure total control of their public image the Howard government has set up an “unprecedented number of press secretaries and information gatekeepers” in “an ‘octopus-like’ network of media control extending from the Prime Minister’s office”. (p 113 Hamilton 2007)

This network was born from the ashes of the previous labour governments National Media Liaison Service (NMLS) which was set up as a quick response service for media but began to become twisted into a propaganda arm about five years after it was created(p 113 Hamilton 2007). Howard dissolved the NMLS as a false election promise, saying that apart from himself; no ministers would be allowed to have press secretaries.

An interesting and original tactic the Howard governments ministerial press secretaries is that unlike the NMLS which would release co-ordinated resources to get the governments views spread through the media, Howard’s Media Management Network releases no information at all.

Instead, press secretaries direct inquires to the parties official press releases; any further questions are directed to a higher group of press secretaries; the key being denial of access to information. (p 120 Hamilton 2007)

Tony Walker (Australian Financial Review) has commented saying that the “[The government] not only have totally unhelpful press secretaries, but they also have got people to watch press secretaries to make sure that the same message is being put out by everyone – every minister every back-bencher. The result is that there is practically no information outside the government line”. (p 114 Hamilton 2007)

This network of press secretaries ensures that the government can control totally the information it releases to the media and public, and uses it to ensure that no information critical of the government is released.

(2)

As a government is never going to criticise itself or make itself look bad it is up to journalists to find information that might be critical of the government, one of the best sources for journalists on government policy and practice are internal government documents.

Despite Australia’s Freedom of Information (FoI) laws which should allow public access to most government internal documents, many sensitive documents that are requested are not received. There are many disincentives for requests as each incurs a fee and a waiting period of up to six months can apply; often killing the newsworthiness of a potential story. (p 104 UTSLR 2003)

Many government departments are exempt from FoI such as the Governor and the corruption commission. Even then FoI requests to non – exempt departments are not guaranteed; in 2006 almost half of all requests for “information on government policy and decision making were partly or wholly unsuccessful”. Many requests to departments close to contentious policy areas were very slow to process with requests to the Department of the “Prime Minister and Cabinet (taking) more than 90 days in 36 per cent of cases, Defense 27 per cent and Immigration 22 per cent”. (p 10 Coopes 2007)

So why is Australia’s FoI system so useless? Firstly FoI laws in Australia were only created in 1982, so the public service hasn’t gotten used to their documents being under public and press scrutiny and tries to try to keep them secret, unfortunately as there are lots of provisions for restricting, delaying and charging for documents this is easy to do.
As it was the public service that designed the FoI system it seems to have been “designed by bureaucrats, for the bureaucrats”. (p 107 UTSLR 2003)

So if there are no formal ways to obtain information directly from the government it must be obtained informally by talking to sources within the government or public service that are willing to share information that is not otherwise available.

“Leaks” of this sort are often the best way journalists can find out what’s really happening behind the scenes in the government and therefore, of course, the government has an interest in preventing leaks and curtailing leakers.

Leaking government documents is a criminal act with harsh penalties, leakers will at least lose their job and depending on the sensitivity or scandal of the leaked material may also be prosecuted and sentenced to prison as well, the only defence leakers have is that they can try to leak anonymously or declare themselves Whistle Blowers.
Whistle blowers in Australia are only protected from reprisal to their actions if they only alert official channels. Whistle-blowers who find that an official complaint causes no action have no choice but to use the media and public pressure to bring about change, an act that leaves them open to backlash. It seems that “the laws failure to protect whistleblowers who go to the media is a clear indication that the law is orientated to domesticating dissent, rather than empowering the whistleblower or putting priority on action against wrong doers”. (p 123 UTSLR 2003)

The Howard government has taken a viscous tack with leakers in an effort to intimidate public employees; it has conducted high profile “raids” on journalists and newspapers to find the identity of leakers, and even jailing two journalists for not revealing their sources. This has created a climate of fear within the public service where “when you call a bureaucrat they say: ‘sorry I can’t talk to you’ and refer you to a press secretary”. Gone are the days “when policy documents used to regularly fall off the back of truck”. (p 104 Hamilton 2006)

(3)

Even if journalists manage to find information critical of the government they can be discouraged and punished for publishing by they (or their newspaper) being blacklisted by having their credibility attacked or by sued for defamation.

Defamation law is an expensive process and a powerful tool for those who can afford it. Defamation cases can sometimes take decades to settle and the specialised lawyers needed for a resilient case demand a staggering price.

With only small compensations awarded for libels often the objective of the litigation is not to seek compensation for the libel but to enforce a gross punishment in the case itself Chris Masters a journalist for Four Corners said that “the litigation involved in defending his program “The Moonlight State” cost him two years of work time” and commented that “when a journalist sees a strong investigative piece dragged by the tail through a decade of nasty litigation, they get the message; there is no such thing as a win in a defamation court.” (p 13 UTSLR 2003)

The terrible price of a defamation case can make journalists and publishers very paranoid about being liable for libel, and with Australia’s broad and complex defamation laws where libel can seem to be found in anything this caution leads to a policy of strict self censorship. (p 30 Pullan 1994)

Australia’s defamation laws are so complex and vague that media companies must hire lawyers to tell them whether their articles are defamatory or not, Robert Ainslie QC when asked to analysing an article for dissent threw up his hands in despair saying “I can’t tell you what the law is. That is the point: when we don’t know what we can say and what we can’t, the blue pencil rules”. (p 32 Pullan 1994)”

Compare this to view of defamation in the US where Justice William Brennan of the Supreme Court said that:

“Erroneous statement is inevitable in free debate … it must be protected if the freedoms of expression are to have breathing space that they need to survive … a rule compelling the critic of official conduct to guarantee the truth of all his factual assertions – and to do so on pain of libel judgements virtually unlimited in amount leads to a comparable of “self-censorship”. (p 30 Pullan 1994)

Conclusion

A free press is essential to a democracy not only does it provide the means for the public to be informed and have a valid opinion in the decisions of government it is also prevents the corruption of politicians and the degradation of the democracy into autocracy. Press gallery veteran Laurie Oaks has commented:

‘It is the threat of leaks that keeps politicians honest … they are much more reluctant to lie or act improperly if they know they could be found out … A society where government has tight control of the flow of information – that is control of what the public is allowed to know – is not a democratic society.” (p 106 Hamilton 2007)

Often a free press is taken for granted and not considered till it’s noticed missing, I think many people in the public, media, public service and even the government are beginning to notice or get tired of the Howard gag on political debate, the recent release of many books on this topic is a clear indication that people are unhappy and are willing to push for change.

The coming years and the possible election of the ALP seems to suggest some positive changes within the issues in this essay, “the promise of uniform shield laws to protect journalists’ sources and proposal to scrap ministerial certificates against FoI requests represent a genuine desire for greater press freedom”. (p 24 Coopes 2007)

Reference:

Silvia, T. (ed) (2001), Global News Perspectives on the Information Age. Ames: Iowa State Press, 2001.
Shelley, G. (2006), The Triumph of the Airheads. Sydney: Park Street Press, 2006

Pilger, J. (2002) The New Rulers of the World. London: Verso.

Hamilton, C. & Maddison, S. (2007), Silencing Dissent Sydney: Allen & Unwin, 2007.

Nash, C. Holland, G. Keyzer, P. (2003) The Public Right to Know: Number five of the UTS Law Review Sydney: Halstead Press. 2003.

Pullan, R. (1994) Guilty Secrets Sydney: Pascal Press 1994

Isaacs, V. Kirkpatrick, R. (2003) Two Hundred Years of Sydney Newspapers Sydney: Rural Press 2003

Coopes, A. Dobbie, M. Franks, L. Gordon, S. Swan, K. (2007) Official Spin: Censorship and Control of the Australian Press 2007 The Media, Entertainment & Arts Alliance (2007) cited 11th May 2007 http://www.alliance.org.au