SENATE - Parliament of Australia by yaofenji


									                   COMMONWEALTH OF AUSTRALIA

         Official Committee Hansard

Reference: Self-regulation in the information and communication industries

                  WEDNESDAY, 22 APRIL 1998

                          BY AUTHORITY OF THE SENATE
                                CANBERRA 1997
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                                           Wednesday, 22 April 1998

Members: Senator Ferris (Chair), Senator Quirke (Deputy Chair), Senators Calvert,
Harradine, McGauran, Tierney, Reynolds and Stott Despoja
Senators attending the hearing: Senator Ferris (Chair), Senator Quirke (Deputy Chair),
Senators Calvert and Harradine

    Matter referred by the Senate for inquiry into and report on:

    Evaluate the appropriateness, effectiveness and privacy implications of the existing self-regulatory
    framework in relation to the information and communications industries and, in particular, the
    adequacy of the complaints regime.


BLOCK, Ms Jessica, Corporate Counsel, Nine Network, 24 Artarmon Road,
  Willoughby, New South Wales 2068 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 332

BRANIGAN, Mr Anthony Michael, General Manager, Federation of Australian
  Commercial Television Stations, 44 Avenue Road, Mosman, New South Wales
  2088 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 332

BUSCHMAN, Mr George Henry, Chief Executive Officer, Macquarie Radio
  Network, Level 8, 368 Sussex Street, Sydney, New South Wales . . . . . . . . . . . . 362

CARROLL, Mr Graeme, Manager, Public Affairs, Federation of Australian Radio
  Broadcasters Limited, 10/82-86 Pacific Highway, St Leonards, New South Wales
  2065 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 362

DIXON, Mr Timothy Edwin, Secretary, Australian Privacy Charter Council,
   Faculty of Law, University of New South Wales, Sydney, New South Wales 2052 380

FIST, Mr Stewart Anthony, 70 Middle Harbour Road, Lindfield, New South Wales
   2070 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 372

HARVEY, Mr Peter, Private Citizen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391

KRISHNAPILLAI, Mr Maha, Representing Phil Singleton, Chairman, Service
  Providers Industry Association, Level 11, 80 Alfred Street, Milsons Point, New
  South Wales 2061 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 401

MANNING, Mr Peter Clarence, Head, Current Affairs, Seven Network Limited,
  Mobbs Lane, Epping, New South Wales 2121 . . . . . . . . . . . . . . . . . . . . . . . . . . 332

MARZBANI, Mr Ramin, Principal, www.consult Pty Ltd, 2 Bridge Street, Sydney,
    New South Wales 2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 426

MEAKIN, Mr Peter Jeremy, Director, News and Current Affairs, Nine Network, 24
  Artarmon Road, Willoughby, New South Wales 2068 . . . . . . . . . . . . . . . . . . . . 332

O’BRIEN, Mr Dermot John, News Manager, Network Ten Limited, 620 Chapel
   Street, Melbourne, Victoria 3205 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 332

ODDIE, Ms Susan, General Manager, Business Affairs, Network Ten Limited, 1
  Saunders Street, Pyrmont, Sydney, New South Wales . . . . . . . . . . . . . . . . . . . . 332

PEARSON, Professor Mark Leslie, Head of Communication and Media Studies,
  Bond University, Gold Coast, Queensland 4229 . . . . . . . . . . . . . . . . . . . . . . . . 409

ROTHERY, Ms Catherine Margaret, Legal Counsel, Regulatory and Business
  Affairs, Seven Network Limited, Mobbs Lane, Epping, New South Wales 2121 . 332

RUDD, Mr John Edward, Network Director of News, Seven Network Limited,
  Mobbs Lane, Epping, New South Wales 2121 . . . . . . . . . . . . . . . . . . . . . . . . . . 332

WATERS, Mr Nigel, Vice-President, Australian Privacy Charter Council, Faculty of
  Law, University of New South Wales, Sydney, New South Wales 2052 . . . . . . . 380
Wednesday, 22 April 1998              SENATE—Select                                    IT 331

   Committee commenced at 9.04 a.m.

    CHAIR—I call the committee to order and declare open this public hearing of the
Senate Select Committee on Information Technologies. The committee was appointed on 27
August 1997 to receive and consider outstanding government responses to the reports of the
Senate Select Committee on Community Standards relevant to the supply of services utilising
telecommunication technologies; to evaluate the development of self-regulatory codes in the
information industries; and to monitor the personal, social and economic impact of continu-
ing technological change created by industries and services that utilise information technolo-

    The committee’s current inquiry is being undertaken under part B of its terms of
appointment—that is, to evaluate the appropriateness, effectiveness and privacy implications
of the existing self-regulatory framework in relation to the information and communications
industries and, in particular, the adequacy of the complaints regime. The committee is
undertaking its inquiry into these matters to provide an opportunity for individual citizens
and relevant organisations to contribute to the public policy discussion on these matters and
to suggest improvements.

                             INFORMATION TECHNOLOGIES
IT 332                                 SENATE—Select                  Wednesday, 22 April 1998

[9.05 a.m.]

BRANIGAN, Mr Anthony Michael, General Manager, Federation of Australian
Commercial Television Stations, 44 Avenue Road, Mosman, New South Wales 2088

MANNING, Mr Peter Clarence, Head, Current Affairs, Seven Network Limited, Mobbs
Lane, Epping, New South Wales 2121

ROTHERY, Ms Catherine Margaret, Legal Counsel, Regulatory and Business Affairs,
Seven Network Limited, Mobbs Lane, Epping, New South Wales 2121

RUDD, Mr John Edward, Network Director of News, Seven Network Limited, Mobbs
Lane, Epping, New South Wales 2121

BLOCK, Ms Jessica, Corporate Counsel, Nine Network, 24 Artarmon Road, Willough-
by, New South Wales 2068

MEAKIN, Mr Peter Jeremy, Director, News and Current Affairs, Nine Network, 24
Artarmon Road, Willoughby, New South Wales 2068

O’BRIEN, Mr Dermot John, News Manager, Network Ten Limited, 620 Chapel Street,
Melbourne, Victoria 3205

ODDIE, Ms Susan, General Manager, Business Affairs, Network Ten Limited, 1
Saunders Street, Pyrmont, Sydney, New South Wales

    CHAIR—Welcome. The committee prefers all evidence to be given in public, but you
may at any time request that your evidence, part of your evidence or answers to specific
questions be given in camera—which means in private—and the committee will consider any
such request. The committee has before it submission No. 29, dated 28 January 1998. Are
there alterations or additions that you would like to make to the submission at this stage?

   Mr Branigan—No.

    CHAIR—The committee has already authorised the publication of that submission in a
separate volume. I now invite you to address the committee and, at the conclusion of your
remarks, we will ask questions. Perhaps Mr Branigan could start and then each network may
like to have one spokesman, and then we will ask questions individually.

    Mr Branigan—I would just like to say a few words. The first point to make—and it is
one that we have made already to this committee and its predecessor committees—is that we
are more closely regulated than any other media. You are, of course, familiar with our code
of practice and with the legislative structure in which it is located. You are aware of the
Australian Broadcasting Authority’s role as a court of appeal and, effectively, as the ultimate
interpreter of the code of practice.

    The guidance contained in the code of practice is more detailed than that in the codes of
practices of other broadcasters. It is a fact that there is no uniform code for the press. As far

                              INFORMATION TECHNOLOGIES
Wednesday, 22 April 1998               SENATE—Select                                     IT 333

as we are aware, indeed, there is very little of substance at all covering the print media. We
believe that television has a pretty good record on a whole range of issues relating to
community perceptions of what is appropriate or acceptable in media. The code is more a
reflection of this than the cause of it, but it certainly underpins the approach that commercial
television stations take.

    Given the diversity of our society—the many different generations, backgrounds and
value systems that make up our community—there is surprisingly little dissatisfaction with
the way that we do our job, particularly in relation to news and current affairs. We have
quoted the ABA’s research on community concerns in our submission. These show a very
low level of concern about the subject matter that this committee is specifically looking at—
privacy issues.

    We have also quoted figures on the number of complaints that stations have fielded on
privacy issues. They amount to precisely 25 complaints among the 3,773 complaints that we
have logged in just on 4½ years. That is obviously a tiny percentage, well under one per
cent. Of those 25 complaints, only two were upheld.

    It is worth putting these complaints into the context of the number of hours of news and
current affairs that are broadcast each year by commercial television stations. Metropolitan
stations broadcast something like 5,700 hours of news and current affairs each year. Regional
stations broadcast a further 4,000 to 5,000 hours. So we are looking at something like 10,000
hours of news and current affairs a year which attract on average about six written com-
plaints each year: clearly a tiny percentage.

    People here today are responsible for putting a substantial proportion of those hours of
news and current affairs to air. Between them they have, I am sorry to say, a century or
more of experience in Australian television. They are obviously happy to help you any way
they can with this inquiry.

    CHAIR—I think we can probably beat you along this table. Would any of the represen-
tatives of the individual stations like to make a comment at this stage?

   Mr Rudd—No, thank you, I am happy to be represented by the FACTS submission.

   CHAIR—Are you happy to individually respond to questions?

   Mr Meakin—Absolutely.

    CHAIR—It may be of assistance if we were to know exactly what each of you does
within the stations. Some of you are the corporate lawyers for the companies and some are
obviously news producers. It might help the committee if we were to hear from each of you
in your particular area of expertise.

   Mr Branigan—Anyone in black garb is a lawyer.

   CHAIR—What a funny thing, I thought that might be the case! Senator Quirke, would
you like to lead off?

                             INFORMATION TECHNOLOGIES
IT 334                                 SENATE—Select                 Wednesday, 22 April 1998

    Senator QUIRKE—You have thrown me in at the deep end. How does it work? If
somebody makes a complaint through to you, I presume, Mr Branigan, and that complaint is
then dealt with, what sort of time frame are we looking at?

    Mr Branigan—The complaints system is actually station based. FACTS does not have
any operational role in it at all. The act requires stations to respond to complaints within 60
days; our code actually requires stations to respond within 30 days. There is an additional
requirement that stations reply finally or otherwise within 10 days. The emphasis is very
much on getting a quick reply. As far as we can ascertain, the average time for response to
complaints is less than 15 working days. There are very few that fall outside that 30-day
period that is laid down in the code.

    Senator QUIRKE—I think you said before that there were about 27 complaints about
privacy over the last period of whatever it was that you mentioned. Are they easier or harder
to deal with than complaints about other programming matters?

    Mr Branigan—I do not believe so. It is perhaps worth throwing that to some of the
news people. I would not have thought so on the face of it. It certainly involves the same
issues and the same practical issues of any complaint about news and current affairs: it
involves checking tapes, talking to the people involved—and, of course, the people involved
may be a reporter, a producer and the news director. There may be quite a number of people
to be contacted.

    It is not uncommon for station investigations into complaints about news to take a little
longer than perhaps investigations into some mistake in transmission to air, simply because
the people are harder to pin down. They are not sitting in a chair at a station eight hours a
day—they are out on the road or whatever. But apart from those sorts of practical difficul-
ties, I would not have thought they are inherently any more difficult than other news and
current affairs issues. Does anyone else want to comment on that?

    Ms Rothery—No, but to answer Senator Ferris’s earlier question: there are so many
lawyers here because we tend to respond to the complaints, or at least oversee the responses
to them, so we are most familiar with the day-to-day answering of them. I think that Tony’s
answer is correct: all news and current affairs complaints tend to take a few days to answer
because you have to talk to all the people involved whereas, in relation to other programs, it
might just be a question of watching the tape. But you do have to talk to people and that
does take time, but a privacy complaint takes no longer than impartiality or a similar
complaint like that.

    Senator QUIRKE—What lawyers are not down at the docks today are here—is that

   Ms Rothery—Yes.

    CHAIR—I hasten to say that I was not critical of the representation of lawyers. I under-
stand the complaints procedures.

                             INFORMATION TECHNOLOGIES
Wednesday, 22 April 1998               SENATE—Select                                     IT 335

    Senator QUIRKE—Of the 27 complaints that you have received, were most of those to
do with the ordinary five o’clock news—where I come from—from Channel Ten, or was it
to do with the more investigative current affairs programs?

    Mr Branigan—I believe that the bulk of them were to do with news. Certainly a small
number of them had to do with current affairs programs. From a quick flick through, less
than half were to do with current affairs programs—about eight or 10 out of 25.

   Senator QUIRKE—What time frame is this?

    Mr Branigan—This is over 4½ years, since the code came into effect in late 1993. It is
predominantly news and news across the country—certainly from New South Wales,
Queensland, South Australia, Tasmania and Victoria. There is no clear pattern and no
smoking gun. It is a whole range of issues from the fairly minor to the fairly minor. For
example, we appear to have fielded no complaints at all about the treatment of the Port
Arthur killings. There were no complaints about invasions of privacy or inappropriate

     A typical complaint, for example—to the extent that you could say any complaint is
typical—is a deceased accident victim being referred to as unemployed. That was regarded
as unwarranted. The complaint was not upheld, but it is the kind of complaint that we are
listing here. Identification of witnesses to a hold-up, alleged invasion of privacy in coverage
of a dog attack story, lack of sensitivity in linking a report of the discovery of a dead body
to a search for a missing man, unauthorised filming outside a court and invasion of privacy
in images of a former prime minister and his second wife: that list summarises about half of
the complaints that we have received.

    Senator QUIRKE—Each one of the networks that is represented here has a current
affairs program that is fairly high profile and from time to time exposes scams of different
types in the public interest. I wonder if you or one of the station people here who deals with
these sorts of things would go through the process of how you decide what goes to air and
what does not go to air. We have all seen the shonky car mechanics or the television repair
blokes who fix everything or whatever else the program has been over many years. I think
probably one of the more probing of those programs—for want of a better word—was the
program on Channel 2, the Investigators—which has now gone. Channel 2 are not represent-
ed here but I think I asked them about it at the time.

   How do you determine what goes to air and what does not go to air? What sort of
mechanisms are in place to make sure that you do not get the innocent party?

   Mr Branigan—Can I perhaps throw this to Peter Meakin because Peter has been—

    Senator QUIRKE—I accept the fact that there is not as much of this as there used to
be; or maybe I am not watching as much TV as I am travelling too much.

    Mr Branigan—I am suggesting that Peter respond because he has been, effectively, head
of current affairs at Nine for many years. He has lived through waves of current affairs.

                             INFORMATION TECHNOLOGIES
IT 336                                 SENATE—Select                 Wednesday, 22 April 1998

    Mr Meakin—Just taking it in shorthand, the story is usually initiated by complaints from
viewers who, in their mind, have been victimised by a particular company or individual. One
complaint is seldom enough to proceed on. So, at that stage, you start checking whether
there are other complaints with industry associations or with state departments of consumer
affairs. Quite often, we are tipped into stories by state departments of consumer affairs.

    When you have established that there is a pattern of conduct involving a number of
people, then you interview those people. You then seek a response from the person who is
allegedly the perpetrator of a rip-off or whatever. Either at an early stage or at a later stage
the company’s lawyers become involved to make certain that it is within the law, that no-one
is unnecessarily defamed. We are well aware that, apart from breaching privacy, we also run
a conceivable legal risk of defamation. So we involve the lawyers very early, and we make
certain—which we have to—that we get our facts right before we get too far down the track.

   Senator QUIRKE—Have there been very many defamation cases against the TV
networks in the last few years? Would they feature in your statistics?

   Mr Branigan—We would not necessarily identify them. We would not necessarily be
aware of them.

   Senator QUIRKE—I just wondered whether persons, instead of going to the television
network and saying, ‘I think this is wrong,’ just go straight to the lawyer and actually initiate
some sort of proceedings.

    Ms Rothery—Could I just say, Senator, that we have found at the Seven Network that,
because of the costs these days of taking defamation proceedings, people are resorting more
to taking action under the code and complaining by that venue—because it is at no cost to

    Ms Block—And, in many cases, a complaint will be resolved at that level, which is a
considerable saving of resources generally. You often find that people want the chance to air
their complaint, and once we have responded—which we do substantively—they are then
satisfied, by and large.

   Mr Meakin—Legal help is available—there are lawyers out there trawling for business.

   Ms Rothery—Yes.

   Senator QUIRKE—I have noticed that, but not today.

   Ms Rothery—There are a number of defamation actions pending against all the

   Senator QUIRKE—We have heard of about 27 complaints about privacy. What sorts of
numbers are we dealing with in terms of defamation proceedings against the networks? You
can take it on notice if you want.

                             INFORMATION TECHNOLOGIES
Wednesday, 22 April 1998               SENATE—Select                                      IT 337

    Ms Block—Just as a rough estimate, we would perhaps get 10 to 12 new sets of
proceedings commenced in a given year. Of those, most end at an early stage, quite often
straight after the statement of claim is filed and perhaps after the defence is filed. Very few
go to trial. In fact, most are settled, usually at quite an early stage.

    CHAIR—I noted your comment, Mr Branigan, in the introduction, and also the remarks
that you made in your submission at page one, where you talk about the electronic media’s
commercial television code of practice being the most detailed and stringent. I wonder
whether you could elaborate on that.

    Mr Branigan—The electronic media, generally, are more tightly regulated and have
more extensive codes than any other media. I think, comparing the various electronic media,
the ABC has a somewhat different code of practice from our own. It is more in terms of
principles rather than detailed requirements. Ours is a longer and far more detailed document
which attempts to regulate a much wider range of activity in considerable detail. The
commercial radio code of practice again has a few specific requirements, but the bulk of the
provisions are in fairly broad terms. Pay TV, as far as I am aware, has no code at all to date.
That is, again, in some contrast to our approach. It is really just in comparison with the
written documents to self-regulate the behaviour of people in other electronic media and,
particularly, the generally laissez-faire approach in the print media.

    CHAIR—I am interested in your comments because we have had some advice from
New Zealand where in fact their electronic media do have a form of sanction in fines of up
to $5,000 and actually being removed from the air for periods of time for their coverage of a
certain story which may attract the same sort of coverage in the print media. As you have
observed, in Australia they do not have anything like the same regulatory code. I was just
interested in your response on that. Do individual television channels have their own codes
of practice or do you all observe the FACTS code of practice?

   Mr Meakin—We all subscribe to the FACTS code of practice.

    CHAIR—So there would be no individual lines in the sand to be observed by journalists
in a particular station?

    Mr Meakin—There might be a company policy in relation to a certain matter. In the
case of Nine, an edict went out about two years ago that we would not be paying criminals
or anyone accused of crime for interviews. That was a directive from management. That was
basically a one-line instruction rather than a code of practice.

   Mr Manning—And the same with the Seven Network.

    Mr O’Brien—Those sorts of rules apply from time to time, and come and go. I think
they are standard across the networks. Not paying criminals is one that I think we all try to
subscribe to.

    CHAIR—I was particularly interested in Mr Manning’s comments on that on a recent
ABC television program where you were talking about not only the costs but also the
principles of what is known as cheque book journalism and the difficulty of finding a way to

                             INFORMATION TECHNOLOGIES
IT 338                                 SENATE—Select                 Wednesday, 22 April 1998

ensure that if the electronic media were to observe a particular view of that, that it did not
flow over in a more flexible way to the publications.

   Mr Manning—To the magazines in particular, yes, that is right.

    CHAIR—Given that you all subscribe to the same code, how do you go about ensuring
that your staff—each journalist and each camera man—understand the way that code
operates? Do you have in-house training programs?

    Ms Block—Yes, we do. At the Nine Network we have in-house training programs which
deal with defamation and contempt and, as part of that, the code of practice and complaints
handling. Every journalist comes to one of those. We also issue memoranda regularly and
each finding that the ABA makes us aware of is passed along to each relevant executive
producer of each relevant program with instructions for them to make the relevant producer
and journalist aware—and also all staff aware—of those findings. There is a constant stream
of awareness.

    Mr O’Brien—In the Ten Network the broadcast services manager from Sydney makes
regular trips to the various newsrooms around the country briefing senior reporters, produc-
ers, et cetera. The code is circulated as well and staff are expected to know and have a
working knowledge of the code. Exactly the same as the Nine Network, we also have both
our in-house lawyers and our external lawyers give regular briefings on defamation,
copyright, contempt, trespass and that sort of thing. Those sessions take place on a regular
basis in all newsrooms.

    Mr Rudd—We do the same kinds of things and at least once a year I circulate to all
newsroom staff a copy of the codes as they apply to news. If something happens that
involves another network perhaps or I become aware of something in whatever way, whether
by reading people’s criticisms in newspapers or whatever, I say, ‘Hang on, maybe we need a
refresher or there is something here which we need to think of as broadcasters rather than as
print journalists or whatever.’ Again, I will then circulate the appropriate parts. As well, we
talk regularly with producers.

    CHAIR—In a situation like Thredbo or Port Arthur, before you send people on an
assignment which is as emotionally charged as those two were, I wonder whether there is
any reminder, ‘Just remember that these are the particular aspects of privacy or these are the
sorts of lines in the sand that we draw on these sorts of things, and don’t go over them.’ I
ask the question because it is very clear that at Thredbo and also at Port Arthur we also
heard how well the media observed people’s privacy.

    In fact, we had a submission from the Police Commissioner in Tasmania—we have yet to
meet with him—in which he points out how effective the management of the media was and
how well the codes operated. When somebody goes out on an assignment like that—when
you send a crew out—do you brief them in that way beforehand? Because it is clearly an
ongoing and quite emotional issue which even extends to the coverage of the current
situation on the waterfront.

                             INFORMATION TECHNOLOGIES
Wednesday, 22 April 1998               SENATE—Select                                     IT 339

   Mr Meakin—It is sometimes hard to brief people before they go out; and if you are
sending someone out at 1 o’clock in the morning—

   CHAIR—I accept that.

    Mr Meakin—which is what happened at Thredbo, it is a case of telling them, ‘Get
there.’ But, where possible—if it is a really major story—you send the most experienced
people who know instinctively the way to conduct themselves. They know that if they
trample on the emotions of the people directly involved in a situation then they will get no
cooperation and will quickly become pariahs. You tend to rely on experience. When they are
operating, you keep them informed by telling them: ‘Just emphasise that a bit more,’ or,
‘Just back away from that—keep your distance.’

     Mr O’Brien—These people are not sent off and not heard from again. They are all
senior people, as Peter Meakin said, and we are having conversations with them six, eight,
10 or 12 times a day. We monitor everything they are doing because we want their best
output, of course, and we want the best result. They are not just left to their own devices in
these places. Thredbo was well within the mobile phone communication net, et cetera. Port
Arthur was slightly more difficult but, nevertheless, possible. These people are talking to us
all the time. We know everything they are doing and at the same time we are getting
community feedback. If they do offend people’s feelings, we often know before they do,
because the police—or whoever—let us know. We are very sensitive to that sort of issue.

    Mr Manning—I also think it is true that there is a perception among the whole
journalist community—from top to bottom—that there is a big public debate going on about
privacy and the paparazzi, et cetera. That sensitivity within the profession means that people
tread more carefully in all these situations. I think there is general acknowledgment that this
is an issue; just as, five or 10 years ago, the question of interviewing people after accidents
resulted in changes to the code—about grief and sensitivity—when talking to people after
train accidents and all that. There were a number of things—I think Hoddle Street was one
and the Grafton bus crash was one: there were several horrific incidents that happened in a
row—which resulted in internal discussions within the profession. These led to people like
Peter writing into the code—certainly in the ABC—things about grief reporting. I think it is
true at the moment, as well, that there is a greater sensitivity within the profession to the
privacy question.

     Mr Rudd—We are not an insensitive group. We deal with these kinds of situations,
sadly, quite often: and so we are aware of the reactions that we get. I think that, because of
the means of our transmission—that is, because we transmit our presence into people’s
sitting rooms—people are much more willing to criticise us, to say, ‘Hey, I didn’t like that; I
did like this.’ So, our customers talk with us all the time.

    I was not involved with Port Arthur, but shortly before I came to Sydney I was involved
closely with the Gracetown cliff collapse in which a number of children were killed. In that
case, we knew we were sending people into a small and very grief-stricken community. This
is not something which happens only in my office; it applies to all of us. The same thing
happened with Thredbo. As Peter said, your first people go in in the middle of the night; but
early the next morning I went in with my senior people. I telephoned the reporters on site

                             INFORMATION TECHNOLOGIES
IT 340                                  SENATE—Select                 Wednesday, 22 April 1998

and said, ‘Look, you are in a very small, very close community. You are dealing with people
who are friends or relatives of those who have been killed. Remember the circumstances—do
your jobs properly and thoroughly and fairly and decently—but do be careful.’

    When those kinds of things happen, I think there is a common feeling that we are a
bunch of godless, heartless and childless monsters, sitting away in our castles plotting to
destroy the world. We are not. We have children, families, wives—whatever.

    CHAIR—We certainly have not had any evidence to suggest that you are. I am just
wondering whether the competitive pressures of the infotainment industry—because there is
now a much broader definition of what is news—mean that journalists out in the field feel
the need to push the envelope. I suppose we see it ourselves—in a very limited way—in
door stops, where there is competitive pressure to push the questions just a little bit further. I
am intrigued to know whether that applies more than it used to. Perhaps Mr Meakin or Mr
Manning, who I recognise as having had some years in the field, might like to comment on

    Mr Meakin—My personal observation is that journalists have always been competitive;
and they are no more competitive today than they always were. I think we are aware now—
and Peter has already touched on this—that there are many more people on our case. Stuart
Littlemore may have gone to God but he has been succeeded. Newspapers like to write
stories against television programs. We are aware that we are open to criticism and we are
exposed to criticism. If we go too far, we are seen to go too far—the switchboards light up
like Christmas trees, and we all have to spend hours and hours justifying our conduct, if we
overstep the line. I think, if anything, that we have become a bit more circumspect in the last
few years. Yes, the odd journalist will ask a question that exceeds bounds—that will happen,
and it will continue to happen. But I do not think competitive pressures have encouraged us
to push the envelope.

    CHAIR—We saw an example of that at the Logies, didn’t we? There were some quite
interesting old tapes the other night on questions that seemed to push the envelope a bit far.

   Mr Meakin—Yes.

   Mr Manning—There is rare agreement between Nine and Seven here. I agree with Peter
about competitive pressures not pushing the edge of the envelope, and there being no more
competition now than before. In fact, I think you could possibly argue that there is less
general competition within the industry as a whole. There were more current affairs
programs at one time, competing with each other. But I do think that programs like Front
Line and Media Watch and Fast Forward, among others, have actually been good for the
industry—even though we all hate them when they actually concentrate on us—in that they
have raised public and professional consciousness about all the issues. I think they have
made the media a public issue as well as just an infra dig professional issue and that, in turn,
has put a lot of pressure on the professionals within the industry to think about what they do.

   I am talking now about a decade in which Fast Forward, in particular, has been having a
go at the media in that comedic sense. I think it has been good. There is now the bizarre

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situation where Channel 7 is running its current affairs program and promos for Front Line
within the same half hour, and that is good.

    CHAIR—It might confuse some viewers.

    Mr Manning—I hope not.

    CHAIR—Going back to the code—clause 1.3 of the code provides:

Licensees must endeavour to comply fully with the Code, but a failure to comply will not be a breach of the Code if
that failure was due to:. . . a reasonable mistake;—


reasonable reliance on information supplied by another person—

and then it goes on to detail some other things. That could be construed as giving a fairly
broad opportunity to television channels to argue that failure to comply was a genuine
mistake. I am just wondering how often that tends to be relied on as the essence of the
argument and where the resolution lies?

    Mr Branigan—Quite rarely, I think—in general terms.

    Ms Block—In two years I have not relied on it at all.

    Ms Rothery—At the Seven Network, we have relied on it once. It was actually a
computer mistake which had been checked, but the computer glitched and something went to
air that should not have. We relied on that and, of course, we changed the procedures to
make sure that it does not happen again. But that is the only time that we have called on it.

    Mr Branigan—It was certainly intended, primarily, to deal with reliance on third parties
where, for instance, a station takes a live feed from another station. The reality is that that is
the case with most stations most of the day. They simply are not in a position to physically
exercise control over what comes as part of a live feed. Similarly, where, for instance, a
station runs a commercial which has been checked by my organisation and my organisation
has told the station that, in our view, this complies with every legal and regulatory require-
ment and it turns out that that advice is not correct, a station might reasonably say, ‘We, in
good faith, relied on the advice of these experienced people who have a very good track
record. Therefore, although we recognise that it was a breach of the code, it is one that we
should not be held fully accountable for.’

   Mr Rudd—None of us in news see that as a let-out of any kind. It is something which
applies to the codes overall, not just to the very small section of the codes dealing with news
and current affairs. Things may be broadcast wrongly as a result of simple and innocent
mistakes: somebody hits a button that they should not have done—those kinds of things. I
have never thought of it as being something which applies to the section 4 matters of the

    Mr Branigan—It is certainly not intended as a grab-bag excuse for human error.

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    Mr O’Brien—The Ten Network has not relied on that either.

    CHAIR—I am interested to explore this issue of privacy versus public interest and the
fairly fine balance between the two. I will just quote to you from page 3 of your submission:

The public and the media alike frequently have a legitimate interest in broadcasting of private information or images
even if, in some instances, the individual concerned objects.

I am just wondering whether you could give me a couple of examples where that principle
might be applied. I do not mean real life examples; I mean in a set of circumstances where
you might determine that, although an individual might object, there is a legitimate interest
for the broadcasting of private information or imagery.

    Mr Meakin—There was a recent case, without naming any names, of a certain paedo-
phile who was ensconced in Central America somewhere. He probably did not want his
privacy invaded over there, but we thought there was a legitimate reason to do so in the
public interest.

    CHAIR—But once he was charged, his face was obscured anyway, wasn’t it?

    Mr Meakin—Yes. That was for reasons of contempt.

     CHAIR—I will put to you a circumstance and I wonder if you could comment on it.
Again, it will be in a set of principles. The wife of a public figure, who might, in her own
right, have a professional occupation, sits in the backyard of her house believing, given that
it is private property, that she is in a private circumstance, and she is photographed. This
was not an electronic, and that is why I am asking you for a view on it. I just wonder how
you make a decision about a set of circumstances where public interest is certainly involved
but the woman herself—and in this case it was a woman; the wife of the public person—also
has a professional life, individual to the person who is attracting the public interest. How do
you make a decision about whether or not her privacy should be invaded in the public
interest if you were presented with the opportunity to film that?

    Mr Meakin—I am aware of the circumstances because it has been raised previously in
evidence before this committee.

    CHAIR—I am trying to explore the principles of this rather than the particular.

    Mr Meakin—In terms of television, I do not think we would have an interest in her
unless she were somehow caught up in the allegations against her husband. If she were on
the record somewhere, whether it is in parliament, as an alleged co-defendant or whatever—

    CHAIR—Person involved.

    Mr Meakin—Then there would be some interest but, if she were not, I think she has a
right to privacy. I am glad you mentioned the point that this was not electronic media. A lot
of the climate in which we operate is Princess Diana, Fergie’s notorious toe-sucking incident,
et cetera. They are all stills photographers. We do not hire paparazzi.

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   CHAIR—Would anybody else have a comment to make on this?

   Mr O’Brien—The paparazzi does not exist in this country the way we see it in Europe
and the UK. If there is a market for it, it is very small. One only has to look at the colour
magazines to see that the vast majority of the photos that they publish are, in fact, from
overseas. Mr Meakin is right: the incident that you refer to did not involve the electronic
media, and it is something that I think we, at this table, would all find very hard to justify.

    CHAIR—As a matter of interest, it was described by the Press Council as a blatant
breach of personal privacy.

    Mr Manning—I think this is one of those areas where the debate moves on and the
industry has to confront that question because, increasingly, you are going to have a situation
where there are two professionals and there is media interest in only one. It may often be
that it is the woman whom the media has no interest in, and you do not want discrimination
occurring and professional damage. This is just a personal view rather than a policy position,
but I have some sympathy for what I think is the MEAA view, which is that we need to
develop ways of avoiding invading the privacy of the partner who is the potential collateral
damage person—male or female—and to possibly think about us in a self-regulatory way
talking about how we might ensure that that does not happen. I suspect it probably is going
to be a continuing issue, and I think we need to think about that.

    CHAIR—I am sure you are aware that we have also had a submission which makes
observations about the behaviour of some members of your own industry in relation to the
wife of another public figure. She told the committee in a submission that she felt harassed
by a television channel’s helicopter hovering over her house when the object of the public
interest was actually known not to be there, that she felt her privacy was invaded by
activities involving the electronic media during periods of time when the focus of the public
interest, if you like, was actually not at home. For obvious reasons, the principles apply here
rather than, again, the particular. I am just wondering how you make a decision about the
extent to which focus is put onto the house of the person, or the car of the person, or the
Canberra residence of the person, when it is known that the person is not there.

    Mr Rudd—If we had known at that time that the hypothetical person was not there I am
sure that we would not have been wasting helicopter fuel waiting to see the person. A lot of
these things spring from simple misunderstandings and mistakes. How long did this
helicopter hover? I really do not know. This was at a time when, legitimately, many
publishers were seeking this person and none of us, I believe, would be interested in the
slightest in observing a house from a helicopter if we knew and believed the person was not

    Mr O’Brien—In the day-to-day world, at this table we all have resource problems; we
do not have resources available to sit outside a house for any length of time if we know for
certain that the person concerned, the person we are looking for for the story, is not there.
Certainly, having helicopters hover over suburban houses raises other issues. We do not have
the time or the money to pursue that endeavour, if you like. If we knew the person was not
there we would simply back off. That would be my experience.

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    Mr Rudd—It moves into a very difficult judgmental situation where there is legitimate
public interest in a person who lives at a place. I would argue that then we have a legitimate
reason for being there in the expectation that that person will return to that house. An
unfortunate consequence of that may be that there is a person in the house or going to and
from the house who is distressed by that. We would never seek to cause that distress. We
acknowledge that it may sometimes happen. We try to deal with it as comfortably as we are

     Mr Manning—It is a regulation question. This is ultimately one of those kinds of moral
cultural things where stations are simply going to have to be sensitive about those situations.
It is the line between public and private and I do not think it is a line that can be regulated.
It is a professional question of sensitivity which is covered in numbers of the news and
current affairs code questions already.

    CHAIR—I asked a similar question to a previous witness who works in your industry.
His response was by way of another example and that was where a number of allegations
and observations had been made in the print industry about a figure of public interest—a
woman. The woman made an arrangement through her office with the media to do a
doorstop where a certain grab was taken but no questions were asked. The deal was made
that that would be the end of the matter. Does that happen very often? Apparently in that
case it was very successful and the arrangement was that that would be the only appearance;
there would be no questions asked but a statement would be made. The deal was that the
person would then be left alone. Generally speaking, are those sorts of arrangements made
with people in that way?

    Mr Manning—There is a myriad of arrangements. Sometimes that happens. Sometimes,
as I am sure all senators are aware, that kind of deal is done and then the person wants to go
and do another separate interview with one channel because they know they will get better
air time or whatever. There is a myriad of arrangements.

    Senator HARRADINE—Surely most people would think that a hovering helicopter over
a suburban home is an intrusion into the privacy of the person? What do you want to
photograph? There is no long distance—

    Mr Meakin—That is my question too: what would you want to photograph? You cannot
get an interview from a helicopter. I cannot see the point of it.

   Senator HARRADINE—This was the case; the helicopter was hovering over a home.

   Mr Meakin—It flew over or was it hovering there?

   Senator HARRADINE—It was hovering, wasn’t it?

   CHAIR—That is the witness’s evidence to this committee.

   Mr Rudd—What length of period, do we know?

   CHAIR—I understand some hours were involved, but not on a constant basis, obviously.

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    Mr Rudd—I agree with you. But it also to me sounds ridiculous that it would have
happened. I do not question the memory of your previous witness but it is one of those
things which to me sounds so out of the ordinary as to be very difficult to understand.

    Senator HARRADINE—It gets to the question that I inferred and that was: is there
anything that can be interpreted from your code which would prevent that from taking
place—apart from the cost thereof?

    Mr Rudd—There is. I have here the draft of the new code at 4.3.5 which says:

. . . must not use material relating to a person’s personal or private affairs, or which invades an individual’s privacy,
other than where there are identifiable public interest reasons for the material to be broadcast.

I would say, in these circumstances, there would not be. Perhaps if the person had been
excused from parliament or the running of a large public company on the premise that he or
she was gravely disabled but was frolicking every day in a swimming pool then there may
well be. I think that would be arguable. In the normal way of things, it just seems a
nonsense. Do you have a copy of this draft?

    CHAIR—Yes, I do.

    Mr Rudd—It is there.

    Senator HARRADINE—Mr Branigan, do you have any comments on the minister’s
statement as to a broadcast television use-by date? What do you think your use-by date will

    Mr Branigan—The minister’s reported comments some days back?

    Senator HARRADINE—Yes.

    Mr Branigan—My understanding of his comments is that it is very hard to foresee the
future. We are living in turbulent times when new media and new means of delivery seem to
be emerging every day. It is very hard to know exactly what the situation will be a decade
hence—whether television will still be as prominent a medium as it is now or whether we
will be fighting for our share of eyes and minds with a myriad of other media. I think that
we will still be the predominant medium without doubt 10 years hence and probably 20
years hence.

    Senator HARRADINE—Nevertheless, you admit that there will be increasing competi-

    Mr Branigan—Certainly.

    Senator HARRADINE—Including in news and current affairs.

   Mr Branigan—Absolutely. What is interesting is that there is virtually no competition in
news and current affairs from pay television.

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   Senator HARRADINE—Yes. I am talking about the Internet.

    Mr Branigan—Yes. I suspect that the same may be the case as regards local news 10
years hence. Providing extensive local news is a hugely expensive resource-intensive
business. At the moment, only newspapers and television can do it and I do not imagine that
is going to change.

    Senator HARRADINE—You have not expressed any view, as I understand it, about
codes of practice or the lack of codes of practice for the Internet industry. Doesn’t it
somewhat concern you that you have a number of elaborate codes—the efficacy of which I
will question at a later stage because we are running out of time, unfortunately—but you
have no code of practice in an area which may well compete with your output?

    Mr Branigan—It is certainly the case that even at the moment we are more tightly
regulated than, for example, pay television. Pay television does compete directly with us in a
whole range of areas—not, as I have said, in news and current affairs because that is an
expensive business that they have chosen to not become involved in at this point. I do not
doubt that, within five years, a lot of what we see on the Internet will be hard to distinguish
from television. It will have full motion video and it will undoubtedly originate a lot of
material that is comparable to news and current affairs. It obviously does raise some difficult
issues for us if we are a regulated island in a sea of competing media—albeit that none of
them are of our scale and significance—which, effectively, are unregulated.

    Senator HARRADINE—In other words, you are telling us that commercial television is
the medium of greatest influence?

   Mr Branigan—I think that is so.

   Senator HARRADINE—And it will be for some time.

   Mr Branigan—I would be most surprised if that changed within the next 10 years.

   Senator HARRADINE—Have you studied the latest report of the National Television
Violence Study in the United States?

    Mr Branigan—I have certainly read the study that came out last year; I assume that is
the latest one.

   Senator HARRADINE—No. I am surprised that you have not studied the most recent
one, which is dated 16 April 1998.

   Mr Branigan—No, I have not. That has not come my way yet.

    Senator HARRADINE—You have just said that you are the medium with the most
influence, including the most influence on children. Here is a study which reveals that
glamorised violence continues to pervade American television. It details the problems quite
specifically by saying that, overall, the percentage of programs on television that contain

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some violence is virtually unchanged at 61 per cent, compared to 61 per cent last year and
58 per cent in 1994-95. The report also found:

However, programs containing violent content have become more frequent in prime time, rising by 14 % (from 53% to
67%) on the broadcast networks and 10% (from 54% to 64%) on basic cable since 1994.

So there is a huge increase in violence in prime time, rising by 14 per cent, from 53 per cent
to 67 per cent, on broadcast television networks. Not only that, but I would ask you to
respond to the following:

The report highlights portrayals of violence that pose a high risk for children. These portrayals include a cluster of plot
elements that increase the risk that children who watch will learn aggressive attitudes and behaviours. A high-risk
portrayal includes all of the following elements: (1) a perpetrator who is attractive; (2) violence that seems justified;
(3) violence that goes unpunished; (4) minimal consequences to the victim; and (5) violence that seems realistic to the

We are talking about children here, Mr Branigan, and your industry has not even looked at
the latest information on violence and children.

    Mr Branigan—If I understood the date right, it came out late last week.

    Senator HARRADINE—On 16 April, yes.

    Mr Branigan—It is not inconceivable that it may be on my desk, but I certainly have
not read it.

   Senator HARRADINE—Isn’t it of vital importance to those people who are drafting the
guidelines and codes of practice that they should have all of the information available?

    Mr Branigan—Of course.

   Senator HARRADINE—Would you deny that this is the most far-reaching study that
has been done?

    Mr Branigan—From what you have said, it is an update to detailed studies that have
been done over the past two or three years, which we have looked at carefully. It undoubted-
ly provides some additional information, but we are certainly familiar with the previous

   Senator HARRADINE—Some the cartoons that are referred to are portrayed on your

    Mr Branigan—I do not doubt it.

   Senator HARRADINE—Violence is a matter which this committee has looked at, as
you know. Why should we have confidence in your other codes if your own codes are not
based on the latest information?

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    Mr Branigan—I would dispute that. I believe they are based on all the information that
was available to us. As a matter of fact, the current code—the one you are looking at; the
draft code—was lodged with the ABA on 3 May last year. So naturally it does not take
account of material that was produced last week.

    The fact remains that we did consult very widely. We did study all material that was
available to us and we certainly cast the net very widely in formulating that code. It is
certainly a much tougher code than any American broadcaster has to live with as regards
classification requirements and on-air information about the content of programs. It leaves
the latest American advances far behind. We have the toughest classification system in the
world, full stop.

    Senator HARRADINE—I will not ask you a question on that because I do not accept
that, to be quite frank. You may have the codes written up in good faith, but it is the
interpretation of them that appears to be the problem. Has FACTS not made a study of the
level of violence in prime time and childrens’ time, how that level has risen or fallen in the
last two to three years and how that was reflected, or if it was reflected, in the details of the

    Mr Branigan—No, we have not, but I would make these comments. I do not think you
can easily transfer the American findings to our own prime time, for instance. The reason for
that is that our own prime time is very differently structured. For instance, we have large
amounts of what is commonly called infotainment material, which is totally lacking in
violence of any kind. Generally speaking, our local dramas have much lower violence levels
than American dramas. My guess, without having attempted to replicate the American study,
is that the level of violence on Australian television is considerably lower than in the United

    Ms Rothery—Can I also add, Senator, that the ABA regularly does reports on violence
on television in Australia.

    Senator HARRADINE—We are aware of those matters, as you would expect. I asked
why FACTS had not undertaken a study. If you say that your codes of practice deal with
these matters satisfactorily, give us a look at when the codes of practice came in and
whether there has been a lowering of violence since that particular date.

      Mr Branigan—We believe that there has been.

      Senator HARRADINE—You believe, but on what basis?

    Mr Branigan—On the basis of day-to-day observation, complaint levels—a whole range
of factors.

      Senator HARRADINE—But you have not made a study?

      Mr Branigan—We have not attempted to replicate a detailed, academic study like that,

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   Senator HARRADINE—Will you?

   Mr Branigan—We certainly have no current intention of doing so, no.

   Senator HARRADINE—On such a vital issue as the minds of children, that violence is

     Mr Branigan—That approach is one approach to measuring violence. I am not sure that
it is one that everyone would agree with.

     Senator HARRADINE—But isn’t it a lack of responsibility on the part of FACTS to,
firstly, not even have read the latest study, and, secondly, not be prepared to commission a

    Mr Branigan—On the first point, how many days after the publication of a report
should a responsible organisation have read it? Are you saying that within seven days is
responsible and beyond seven days is irresponsible?

   Senator HARRADINE—No, I would have thought the next day, if you were interested,
would be sufficient.

   Mr Manning—Can I ask a question, Senator?

   Senator HARRADINE—Yes.

   Mr Manning—Are the findings relevant to news and current affairs?

    Senator HARRADINE—No, not necessarily. Well, yes, it covers some news and current

   Mr Manning—Because it says ‘prime time’. I am just interested.

   Senator HARRADINE—It does cover some news and current affairs.

   Mr Manning—It does?

   Senator HARRADINE—Yes.

   Mr Manning—So it is from the 6 o’clock timeslot?

   Senator HARRADINE—The study is not limited to news and current affairs; that is
what we are saying, Mr Manning.

   Mr Rudd—Are we talking American figures, Senator?

   Senator HARRADINE—Yes, this is an American study.

   Mr Rudd—Because I suspect also that they count prime time. I know these are quibbles.

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    Mr Manning—I am just interested in whether they include the network news in that.

    Senator HARRADINE—Prime time I assume they do, do they not? They have the veto.

    Mr Rudd—I am not sure because their prime time can be different.

    Mr Branigan—Prime time in the United States is 8 p.m. to 11 p.m.

    Ms Block—We should probably make the point also that the complaints we receive
about violence are comparatively few. I do not know whether that is the experience of the
other networks but we certainly get very few complaints. The code is very much intended to
reflect community standards and we react very much to the complaints we receive from
viewers. Those are not at all significant.

    Senator HARRADINE—I wanted to get on to the question of complaints. The informa-
tion that I get generally around the place is that it is not worthwhile. People have given up
complaining because it is absolutely not worthwhile. The evidence that we have from the
Australian Children’s Television Action Committee in submission No. 23 has put to the
committee that:

The Complaints Procedure is cumbersome, intimidatory, requiring huge tenacity and strength of purpose by the
complainant. It does not fulfil its aims of improving the service. It works against the public using the system.

I have an example here of Channel 10 which shows precisely that. That is a matter that I
will deal with in another area.

    The people do not feel confident. You say that you have got your codes of practice and I
think I saw in your submission that you are going to increase spots to 360 a year. How long
are these spots?

    Mr Branigan—On average they would be 30 seconds in length.

    Senator HARRADINE—Thirty seconds a day?

    Mr Branigan—At least a day. A lot of stations do in fact—

    Senator HARRADINE—What do you do now? You say you are increasing to that.

    Mr Branigan—There is no minimum requirement at the moment. It is qualitative but it
is an exhortation to stations.

    Senator HARRADINE—What do your members do? How often do they run it?

    Mr Branigan—It varies widely between very little and virtually daily.

    Senator HARRADINE—How much does Channel 10 run?

    Ms Oddie—Across the industry there are—

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   Senator HARRADINE—Channel 10.

   Ms Oddie—I cannot tell you. I would have to take that on notice in terms of the exact
amount. But across the industry it is very—

    Senator HARRADINE—We are talking about codes of practice—advising codes of
practice: each one of your codes of practice, whether they be taste and decency or whether
they be privacy or whatever.

   Ms Oddie—There is a community service announcement that is broadcast on each of the
networks, advertising their codes of practice. FACTS undertakes dissemination of those

   Senator HARRADINE—I would like you to take on notice how many ads Channel 10
have run in the last year and at what times. I would be obliged—and I think the committee
would be helped—if we had that from Channel 7 and Channel 9 as well.

    Mr Branigan—The last year has been an odd one in that we expected that a new code
would eventuate towards the middle of last year. We have not been as active in encouraging
stations to run these spots as we normally are because we were expecting to run a new
campaign when the new code came out. When it became clear, at the end of the year, that
that was not going to happen quickly we did advise stations to reschedule the old spots that
they had been using for a couple of years. It is an anomalous year; it probably does not
reflect the normal level of scheduling of these promotional spots.

   Senator HARRADINE—You did not refer to that in your submission, Mr Branigan.
You have just indicated that you are going to increase the spots to 360 a year.

   Mr Branigan—That is correct.

   Senator HARRADINE—With 360 a year at 30 seconds a day, at what times are you
going to do it?

    Mr Branigan—I cannot remember if we say in the code itself but whenever we are
reminding stations that it is time to crank up the level of promotion we make the point that it
should be across all time zones, including prime time and fringe prime time. The intention is
to make sure that over a several week period—and we prefer to do it in bursts rather than at
a continual low level—everyone who watches commercial television should see that spot at
least once.

   Senator HARRADINE—Do you believe that program context should determine content
when it comes to violence or pornography?

   Mr Branigan—I could not answer for pornography because, of course, we do not
broadcast any. Context is certainly an element that has to be taken into account.

   Senator HARRADINE—Who does not broadcast any?

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    Mr Branigan—Commercial television.

    Senator HARRADINE—Oh?

    Mr Branigan—By definition it is not permitted to.

    Senator HARRADINE—Why?

    Mr Branigan—Because it is against the law.

    Senator HARRADINE—Why do you say that?

    Mr Branigan—Simply because—

   Senator HARRADINE—Pornography shown by a television station is against the law?
Could you explain that?

   Mr Branigan—It is not permitted by our code of practice or by the Broadcasting
Services Act.

   Senator HARRADINE—I see. Could I ask your advice as to whether the following
program might be pornographic and exploitative of women:

A number of men are hired on separate occasions to perform the task of filling envelopes and are left alone in the
room, only to be interrupted by a woman mimicking a singing telegram. The woman pretends that the hired temps are
‘the birthday boy’ and accordingly performs a strip-tease in front of them. The strip-o-gram removes all her clothes
except for a red g-string, much to the surprise . . .

Do you not think that exploits women let alone the workers, who are young workers
desperate for a job?

    Mr Branigan—It is very hard to tell from a storyline.

    Senator HARRADINE—It is hard to tell?

    Mr Branigan—It would depend very much on the treatment. That could well be the
storyline for a pornographic movie; it could be the storyline, at a pinch, for a PG classified
or certainly an M classified movie. It would depend entirely on how it was treated.

    Ms Oddie—Senator, if I may address that particular issue. I believe that you are
referring to an actual segment of a program that was broadcast on Channel 10, which the
ABA adjudicated in respect of. The ABA actually had a finding in relation to the portrayal
of women in that and spoke to Channel 10 about that. In terms of that they did not believe it
was, in the context of its broadcast, in accordance with the spirit of the guidelines of our
code. We have had serious discussions with the ABA in that regard.

   Senator HARRADINE—Ms Oddie, the ABA is not here—and obviously the ABA will
have its chance to consider these matters—but I am asking Mr Branigan. I am talking about
codes of practice. What confidence can we have in any codes of practice if they are

                                   INFORMATION TECHNOLOGIES
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interpreted in certain ways? I am asking you in respect of that matter. I can deal with other
matters as well and give you other examples, for instance:

The aim of the program seems to be an attempt to show as often as possible naked women, while fully clothed men
were put on-the-spot and compelled to, in some way, deal with the awkward situation.

The program was relevant to the program context in that the main objective of the program was to observe how men
react to a naked woman. This suggests that the nudity was necessary and central to the context of the program and did
not conflict with section 2.1.3 of the code.

Do you think that is appropriate—in other words, that you can excuse any nudity if it is in
the context of the main objective of the program?

    Mr Branigan—No, I do not think so. I think that anyone would have an uphill battle
claiming that the code permitted that.

    Senator HARRADINE—I would have thought so. Thank you.

    Senator CALVERT—I apologise for being late. The vagaries of the Sydney weather do
not help matters. I only have one question because I am sure that most of the things have
been covered. One of the questions I am interested in is the organisation of the media—both
print and television media—when there are disasters. I think you all would be aware of the
Thredbo disaster and the one at Port Arthur. In the particular case at Port Arthur, I know the
Police Commissioner was reasonably happy with the way television journalists behaved
themselves. They were organised as a group to get media releases and whatever out so that
everybody was treated exactly the same way. In some way, it did alleviate any breaches of
the code that you have highlighted under 4.3. Did you have any feedback from your
journalists, though, that it perhaps may have been too restrictive and that, in their profession,
they would have liked to have had a little bit of individuality so that they could differentiate
between channels?

    Mr Meakin—I have not had any response to that effect, no.

    Senator CALVERT—The same applied with Thredbo—there was no feedback from the
actual journalists themselves? They seemed to be happy with being organised into a group
rather than—

   Mr Meakin—I think most of them accept that, in a situation like that, there has to be
some form of control exercised. It was a disaster situation. I think in both cases there might
have been a couple of cowboys out there, but in most cases all members of the media
behaved remarkably well, which is reflected in the fact that, as I understand it, we received
no complaints at all regarding our coverage.

    Senator CALVERT—There does seem to be a little difference between the print and the
electronic media as far as codes of practice are concerned—in my perception anyway. In the
Port Arthur exercise, the print media did not seem to be concerned about breaking into a
house, pinching photos and putting them across the airwaves or through the print media.
What would happen if something like that happened with the electronic media—with

                                    INFORMATION TECHNOLOGIES
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   Mr Meakin—It happened to us last year when two of our staff intruded in a house in
Queensland. One was suspended without pay for a month, the other was fired. There was no
code complaint—it just happened on the day. The story was never used.

    Senator CALVERT—So you deal with those things individually, channel by channel,
the same way?

   Mr Meakin—That was just a managerial matter. The behaviour was not to be condoned
and it was dealt with swiftly. A press statement was issued to that effect.

    Senator CALVERT—There does seem to be a little difference between the print and
electronic media. We had an occasion in Canberra recently that you may be well aware of:
against the guidelines, the President’s courtyard was videoed. Nothing happened—the video
was handed in and not televised—but I note the print media did not hesitate to use their
version of what was happening in the President’s courtyard and used it to some effect. So I
guess that highlights the difference between the code for the print media and the code for the
electronic media in some particular cases. Do you think there should be an overall code that
covers all media rather than there being individual codes for print and electronic?

     Mr Meakin—Because the techniques of newspapers and television and radio are so
different, you end up with a code covering the use of listening devices for newspapers and
movie cameras. The additional problem is getting everyone in bed together and getting them
all to agree.

   Senator CALVERT—It would be pornographic if you did that.

   CHAIR—Theoretically speaking.

   Mr Meakin—I know. In context it might be all right. The other thing that I should
emphasise about our code is that our code applies to people who are not members of the
union. All people who work in the commercial television industry are bound by the code,
whereas the MEAA code applies in principle only to members of the union.

   Senator CALVERT—So you are satisfied that the action you took with those two
people in Brisbane is sufficiently strong enough to discourage other people from doing the

   Mr Meakin—There has not been a repetition, and I do not expect one.

    Senator CALVERT—I was hoping you would say that. How often do those sorts of
instances happen?

   Mr Meakin—Very rarely.

   Senator CALVERT—Was it more prevalent in the past until you had your code?

                            INFORMATION TECHNOLOGIES
Wednesday, 22 April 1998               SENATE—Select                                      IT 355

   Mr Meakin—I think there was a more liberal attitude in the past. People were a lot
younger and there were a few more cowboys in the industry. I think now we have tightened
up our act because more people are on our case.

   Mr Manning—It is different to when we were young, Senator.

   Mr O’Brien—I think those sorts of cases were a rarity, even going back into the past.
You would have to dig very hard to find a similar case in the electronic media.

    Senator CALVERT—Do you think that sometimes there is what some people may see
as contrived media events?

   Mr Rudd—Yes. Politicians stage them all the time.

   Senator CALVERT—So do trade unionists, I believe.

   Mr Meakin—Could you give us an example of what you consider a contrived event?

    Senator CALVERT—I was reading in the media the other day where someone was
commenting on some of the television coverage of the protests at the docks, particularly in
relation to those children. I was pointing out that the head of the MUA was in his particular
spot for TV and something else was for TV, and I just wondered whether in fact it was set
up to some extent to highlight the problem that was occurring there.

    Mr Meakin—I do not think so. That is the first time I have heard that. There was
certainly no contrivance by the media in taking those two children to the picket line.

    Senator CALVERT—No. It just seemed to me, from the way it was written up, that one
of the print media outlets was perhaps just indicating that some of these events are for
publicity and some of the particular players, like politicians, for instance, put themselves in
such a place—

    Mr Meakin—All sides usually have professional advice as to how they should best
present themselves, and they might advise them to stand in this position or stand in front of
the picket line or to one side. I do not know the level of their professional advice, but I do
not have a feeling that it has been stage managed.

   Mr Rudd—There is also the situation that, on the one hand, you are talking about
control by police or others distributing information. That is a contrivance and, if this other
matter is a contrivance by those involved, not us—we as the observers—the world is a
contrived place, I think.

    Senator CALVERT—But you would be concerned about court orders that may have
stopped members of your organisations from filming what were matters of national interest
in this particular event that has just been happening?

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   Mr Rudd—We were actually party to a court proceeding to have the order clarified,
which it has been. I do not think Justice Beach intended it to have the implications that some
people thought it did.

    Senator HARRADINE—The law of the country requires that a television station cannot
run a film which would have exceeded the previous AO. What has the industry done to
examine that particular provision and come up with realistic guidelines to ensure that that
particular provision is given full effect to?

    Mr Branigan—Very briefly, the current code—the code that has been in place for close
to five years—was drafted with that legislative requirement in mind. In redrafting the code
12 months ago, we were very conscious of the comments we received from a number of
public submitters that the wording of the current code appeared, in some respects, to go
beyond the former AO requirement. So we went to considerable lengths to ensure that the
wording of the revised code—the one that is currently with the ABA—reflected as far as
possible the wording of the former AO classification.

     Unfortunately, the wording of the former AO classification was not particularly helpful.
It is very cloudy; it is imprecise. We have tried to use that wording wherever possible, but to
make it far more precise and readily understandable in expanding it to several new classifica-
tions. We believe that everything that has been classified since 1993 is within the boundaries
of the former AO classification, and that that will be so with the revised code when it comes
into effect.

    Senator HARRADINE—You said you believe that. How do you believe it? Have you
got together a range of AO films that were broadcast over television and had a look at them
and then got a range of your MA to see whether they have?

   Mr Branigan—I am not sure that would be the best way of doing it, Senator. I think it
was certainly the case—

   Senator HARRADINE—Channel 10 suggested that they have looked at one episode of
Number 96. They seem to rely on that. So they have obviously done it for their purposes.
But they neglected to say that that particular program caused a bit of a stir. It may well not
have been appropriately AO anyhow.

    Mr Branigan—Sure. I think one point that is certainly worth making is that most
stations classify well within the AO guidelines. The most obvious instance of that is in
relation to coarse language. It would have been possible for stations to include considerably
more coarse language in AO movies than they typically did before 1993. You have seen
some expansion of coarse language in MA classified movies since then.

    That, in my mind and certainly in the view of the classification officers, is still within the
AO classification, even though—and this gets back to the methodology you suggested of
selecting some AO classified movies and then some MA classified movies and putting them
side by side—the AO classified movies were classified well within the boundaries of AO
and we are perhaps getting, in some respects, coarse language closer to the boundaries of
AO now. Although, in other respects—violence—I suspect that we have moved back

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Wednesday, 22 April 1998               SENATE—Select                                       IT 357

somewhat from the boundaries of AO. So there have been changes, but they are changes in
both directions, and still within the boundaries of the AO classification.

   Senator HARRADINE—Why do you not have a look at—

   Mr Branigan—I am not sure it would be particularly helpful.

    Senator HARRADINE—That was the basis of the changes that were made to the

    Mr Branigan—But we are talking about the AO classification rather than specific
classifications that were made under the AO classification. It is the classification, rather than
the classification practices of the day, which is relevant.

   Senator HARRADINE—That is a very interesting comment.

    Mr Branigan—It is not a surprising comment, it is one that we have made on a number
of occasions. It is a matter of observable fact that, over time, classification practices change.

    Senator HARRADINE—Mr Branigan, you ask anybody whether the material that is
currently over broadcast television in the MA classification is more problematical than the
material in the AO classification and they will say yes.

   Mr Branigan—I do not believe that anyone would say that. I think that anyone who
observed closely would say, in terms of violence, there is less violence in MA than there
was at the top of AO.

   Senator HARRADINE—Why do you say that if you have not compared the AO
material with what is now in MA?

    Mr Branigan—I think it is interesting to compare material classified six or seven years
back with material classified now to discern changes in classifying practice. Those changes
reflect what the classifiers see as changes in public attitudes. As I have said, in some
respects they are more conservative now, and that is particularly so in relation to violence. In
other respects, they are less conservative, and that is particularly so in relation to coarse
language. In every respect, I believe they are still operating within the boundaries of the
former AO classification.

    Senator HARRADINE—I finally ask, have you examined or will you examine a
selection of the material that was previously in AO and compare it with the material that is
in MA? That was the reason for that provision going into the Broadcasting Services Act.

   Mr Branigan—The reason—

   Senator HARRADINE—I am well aware of the reason for that going into—

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    Mr Branigan—Perhaps we have completely misunderstood it, but our interpretation was
that the government did not wish stations to classify anything as suitable for television which
would not have been permitted to go to air under the former AO classification.

   Senator HARRADINE—That is right.

    Mr Branigan—If that is the case, then I am certain that nothing that has been classified
since then would have failed to be classified under the former AO classification.

   Senator HARRADINE—Even though you have not compared them?

    Mr Branigan—I have watched a great many movies, both now and in those days before
we had the code of practice. I have not seen anything which, on my assessment—and I do
not claim to be a professional assessor but I do understand the codes very well, and I did
understand the old standards well—struck me as being beyond the former AO classification.
But, certainly, I will suggest to our classification people that they do that exercise and I will
be happy to provide the results of that assessment to you.

   Senator HARRADINE—Thanks, Mr Branigan.

    CHAIR—I am very conscious of the time and I thank you all for your patience in
staying. I just have one last question that I would like to put to each of you and see how you
would respond. I think it has become clear in this inquiry that the degree to which self-
regulation is considered to be workable relies to a great extent on the efficiency and the
effectiveness of the complaints regimes that operate within the codes. Let us look at a
particular theme that might be developed for either a news program or a current affairs
program which was planned to go over a week looking at a particular aspect of some fairly
contentious matter in the community, and after the first night there were to be a large
number of complaints to the switchboard, what would be the operation of your process to
look at that before the program continued the next night and the next night?

     It has been put to us that if a television series went to air—and I am thinking now more
in terms of current affairs for the purposes of these new witnesses rather than perhaps a
weekly series—every 24 hours at 7 o’clock or 6.30 and there were a lot of complaints about
it, how well geared are you to look at those complaints the next morning and make the
decision about how those complaints will be answered and how you might decide whether to
continue with that particular theme in that program?

    Mr Meakin—That is a complicated question in some ways. You might, on a particular
issue, get hundreds of complaints come in, in a very short period of time. If you get a
ground swell of opinion—the switchboards light up and there is a ground swell one
particular way, or people have a particular point which they feel has not been covered or
should be covered—you would do well to take account of it, as you also take account of
talkback radio the next day. If there is a mood in the community, that is one of the few ways
we can judge it on a short-term basis. We can react very quickly. We can address their
concerns. We can adjust some previously shot content to take account of their views. It does
not happen a lot but there is flexibility to do that.

                              INFORMATION TECHNOLOGIES
Wednesday, 22 April 1998              SENATE—Select                                      IT 359

    CHAIR—It has been put to us by previous witnesses that if there was to be perhaps a
six-weekly series, on a weekly basis, and something was offensive to a particular group of
viewers in the first episode of that series, by the time the television channel had processed
that complaint it could be that the whole series had been run. I think it was Ms Block who
said that sometimes it can take a couple of days to work through the process of how you
deal with complaints. I am just interested to know whether you do have a mechanism in
place to deal with that very quickly, for example with a promo that was done on a Monday
for a series that was going to be part of the television news or current affairs programs for
the week.

   Mr Meakin—I think Jessica is talking about handling written complaints. We are talking
about the rapid response mechanism.

   CHAIR—These might be faxed in.

    Ms Block—The point is that it might take a couple of days to watch the tape, talk to the
journalist concerned and go through it. It is a very thorough process and a considerable
procedure to respond to a written complaint. But if we get a flood of complaints about a
particular night’s program the next day, we can react immediately in terms of editing the
program for the following night and certainly for the following week.

   Mr Meakin—There was a case in point here with the Paxton family, which is a
notorious case.

   CHAIR—That is the one I was really thinking about, I suppose.

     Mr Meakin—The initial story, which is often forgotten, was a story about generational
unemployment in a suburb of Melbourne. Shane Paxton showed us around and pointed out
all the houses where no-one had a job. It went to air as a very sympathetic story about
generational unemployment. Then the switchboard started to light up with calls from viewers
saying, ‘If he wants a job, why doesn’t he get a bloody hair cut?’ It spiralled from there. We
knew from feedback we were getting—and radio stations were getting—there was an interest
in this case, so we kept going with it.

    CHAIR—Would it be the case that the other channels do have a rapid response process
to deal with a circumstance like that, so it would not be the case that the program would
continue to go to air with that particular focus, despite the fact that there were a huge
number of complaints?

    Mr O’Brien—With the sort of television event you are talking about we would like to
think that a fair bit of homework had been done prior to it. If you are talking about a series
over six weeks or six nights, I am sure that if it was the slightest bit contentious we would
have our broadcast services managers and our lawyers have a look at it. That is the first
thing. Secondly, we do have television logs the next day. We do log phone calls. The logs
are circulated to all management areas throughout the network. We can respond. If there is
an issue and we feel there has been a mistake or we have misjudged the sentiment of the
community, we can rectify that virtually as we go. We are sensitive to that because our

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IT 360                                  SENATE—Select                  Wednesday, 22 April 1998

whole process is geared up to cover news or current affairs on a daily basis, so dealing with
response is also on a daily basis.

    Mr Meakin—It has happened in the course of a program where people will ring up and
say, ‘That’s incorrect,’ and we will correct before the program has finished.

    Mr Manning—Just to give a picture: if you put a controversial item to air at 6.30 in a
current affairs program—and we know well and truly before that that it is going to be
controversial, it is going to stir the emotions, it has a particular balance within it, there are
passionate points of view being presented for and against, et cetera—you may have seven
reporters in the office answering phones on a 30-second basis, as well as the company
switchboard, as well as other overflow calls that might be going into the news area and
waiting to be switched back through.

    You would have some of the supervising producers, some of the researchers, sometimes
some of the editing staff and the camera people and so on. It is a full-bore public response
and I am literally meaning that for a 20-minute period every phone in the office is ringing
flat out to everybody. So you get a fair idea of what your audience is thinking. Now,
sometimes that does not mean—and I certainly know this from my long time in the ABC—
that that is actually the broad public response; it may be a very partial view of it. The ABC
switchboards are not necessarily a good reflection of what the broader audiences thought
about it either, as often you can get next day by comparing the radio talkback. In that kind
of rapid response, often that night, literally, people will sit down and go through the
implications of that. ‘Did we do too much of this? Did we do too much of that? Is there a
point in that particular viewer who rang and said such and such?’ We have done this several
times over the last kind of few weeks about various things that have happened on Today

    There is a lot of thoughtful assessment that goes on, not out of any kind of great high
moral ground view but simply because if you get it wrong and you are offside with your
public then you are not going to do too well the next day. So, yes, sometimes there would be
a refocus on the story because you are taking that into account. Sometimes you might stick
your neck out and say, ‘Well, we still think the story is the right story and, despite the
public response, we should continue to go down that line.’ That is slightly more edgy and
dangerous, because you may get a bad public response and lose the ratings. You do that with
some trepidation, but it may be that the story is true and fair and that is what ought to be

    CHAIR—Can I ask you a last question, and then we really must close. Can I ask
whether any of you have had very many calls in relation to film coverage of the waterfront
and whether you have had to implement those strategies in relation to that, because that is
clearly an issue that includes a lot of emotional focus. I am just wondering what the public
response has been and how you have evaluated that as it has been running.

    Mr Manning—At Seven current affairs, absolutely. There has been a lot of public
response, hundreds and hundreds of phone calls, and we have assessed it on a nightly basis
to make certain that we gave a fair view of the many sides of that dispute.

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   Mr Meakin—In cases like this, the main body of complaints is that you are biased
towards one side or the other.

    Mr O’Brien—Based in Melbourne, the experience has been identical. We have had lots
of calls. There was one I took personally from somebody who said we did not show Kim
Beazley on the wharves in Perth. But what the person did not realise was that we had broken
that story into two segments, one in the first break and one halfway through the bulletin. As
I was talking to that gentleman, that story came up, so he went away quite happy. But bias is
an issue that does crop up all the time.

   CHAIR—I am very conscious of the time and I do thank you very much for staying
overtime. I found your evidence very interesting this morning and I appreciate the effort you
have all made to get here. Thank you very much.

   Mr Manning—Senator, can I just make one apology? In speaking to Senator Harradine
before, I should have gone through you as the chair, and I apologise for that.

   CHAIR—Thanks, Mr Manning.

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[10.53 a.m.]

BUSCHMAN, Mr George Henry, Chief Executive Officer, Macquarie Radio Network,
Level 8, 368 Sussex Street, Sydney, New South Wales

CARROLL, Mr Graeme, Manager, Public Affairs, Federation of Australian Radio
Broadcasters Limited, 10/82-86 Pacific Highway, St Leonards, New South Wales 2065

    CHAIR—I welcome the witnesses from FARB. The committee prefers all evidence to be
given in public but you may at any time request that your evidence, part of your evidence or
answers to specific questions be given in camera, which means in private, and the committee
will consider any such request.

    The committee has before it submission No. 43 dated 14 April 1998. Are there any
alterations or additions that you would like to make to the submission at this stage?

   Mr Carroll—Not at this stage.

   CHAIR—Is it the wish of the committee that the submission be published? There being
no objection, it is so ordered.

    I now invite you to speak to the committee and at the conclusion of your remarks we
will ask you questions. Mr Buschman, I realise you have not got long with us, so perhaps if
my colleagues have any questions to you they should ask them first.

   Mr Buschman—Thank you.

   CHAIR—Do you have any comments you want to make before we start?

    Mr Carroll—Senator, at this stage no. I think the submission that we sent to you is
fairly straightforward, and we would be happy to answer any questions that you may have.

    Senator QUIRKE—Obviously, you blokes do not employ helicopters to fly over
people’s houses either in the short or the long term, but there are issues of privacy that do
come up which affect radio broadcasting as well. If a public figure has transgressed or is
perceived to have transgressed or is in the public eye for whatever reason, how do you
handle immediate members of the family? Do you seek to interview immediate members of
the family? Do you seek to incorporate them in the story, or do you have a hands-off
policy—you deal simply with the individual who is in the public eye?

    Mr Carroll—As an overall observation, as we pointed out in the submission, radio is a
far less intrusive media. We do not have to put forward the in-depth coverage that print and
television go into. It is generally providing the basic facts of a news event for a news
bulletin. Mr Buschman may be able to elaborate from the operational point of view.

   Mr Buschman—Yes, thank you. From an operational perspective, it is a reality that
most radio broadcasters have actually reduced their journalistic staff and it is actually more

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Wednesday, 22 April 1998                SENATE—Select                                      IT 363

common practice for us to take our information from the wires. There are fewer and fewer
journalists on the road. It is really not something that is a major issue in the radio industry.

    Senator QUIRKE—What about a murder trial that has just been concluded, the verdict
has come down and no-one is really satisfied because such is the nature of a tragedy like
that that you never can satisfy people? Certainly, I have seen radio journalists who have
sought to interview members of the victim’s family about the adequacy of the sentence and
those sorts of things. Do you reckon that is fair game?

   Mr Buschman—I think it is safe to say that commonsense and a bit of judicial input
from the news director should stop that sort of activity. I do not think it is something you
can legislate against, but commonsense tends to prevail, I would like to think.

    Mr Carroll—Certainly, in some cases, the relatives of the victim are quite forthcoming
in their comments. I think on those occasions it is warranted, but there are occasions when it
can be intrusive and should not be put forward.

    CHAIR—I am interested in the pooling issue on radio. What often seems to happen on
radio, as you said Mr Buschman, is that you take a lot of material from the cables—from
AAP and other news sources. There has been a suggestion that that exposes radio to a
greater difficulty in relation to accuracy—that, because of the timing of the medium, it is not
always possible to check somebody else’s story when you pull it off a wire service. What
mechanism do you have to ensure that a story that goes to air, perhaps through the Macqua-
rie network that might have come from AAP or even an international news wire, is in fact

    Mr Buschman—I would like to think it would always be a reflection of the quality of
the news director. Where staff might have been reduced across the board in most radio
stations in news terms, the one thing that most companies have not eliminated is having
quality people, albeit fewer of them, who can still decipher, and rarely are risks taken. It
would be quite a ridiculous scenario for us to simply take whatever is on the wires and put it
straight to air, for all sorts of reasons. We still have a team of people who monitor exactly
what is going through the wires and check on stories.

   CHAIR—I think my old cadet counsellor used to say, ‘When in doubt, leave it out.’

   Mr Carroll—Yes.

   Mr Buschman—Exactly.

    CHAIR—When your staff come on—you have mentioned that they are very experi-
enced—how do you ensure that they know and understand the codes of practice that apply to

    Mr Buschman—In our instance, all of our journalists are given the codes when they
start with the company so they can clearly understand it. If there is any confusion, they can
always speak to management. We quite often refer matters back to FARB and, in fact, we

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IT 364                                 SENATE—Select                Wednesday, 22 April 1998

have FARB often in our company, coming in to actually lecture announcers and news people
on specific areas if we believe there is anything lacking in their experience base.

    CHAIR—I am interested to explore this question of competitiveness. I think radio has
always had the immediacy over television without the pictures. In relation to events like Port
Arthur and Thredbo, with the live crosses that went on with those sorts of issues and the
coverage of them, radio, to some extent, lost that slightly competitive edge of being able to
give the immediate cross without the picture because television had the pictures and the
immediate cross. Does that mean that radio journalists are under more pressure now to sort
of push the envelope in terms of the competitive edge in getting a story first—getting the
news flash?

     Mr Buschman—I guess radio has always marketed itself on immediacy and the fact that
it is one of its greatest assets. Again, I believe it comes back to the quality of the people
who we have operating across the industry. There are always going to be fools who slip
through the net, but in the main I think the lack of complaints in this area would vindicate
that we rarely slip up in that area.

   CHAIR—What sort of complaints would Macquarie get? Could you tell us a little about
your complaints mechanism in the company and also numbers and types of complaints?

    Mr Buschman—In the realm of news and current, very few. In fact, I do not recall a
complaint regarding our news service. But, having said that, we have just recently reopened
the Macquarie National Newsroom. It has been operating for four weeks. We have been
taking a combined news service from ARN for the last couple of years since I have been
involved with the company. As far as general complaints go, the procedure is quite straight-
forward. If I am in the building, I take the call myself. I not only am the chief executive of
the company but actually run both stations—2CH and 2GB. I will always try to speak with
the complaining person on the telephone because I find that is the most effective way of
dealing with the problem. In the main, we deal with those problems.

    By the nature of talk-back radio, it is there to stimulate debate. The types of complaints
rarely relate to the codes. They tend to relate more to people taking umbrage to statements
that are made by our on-air announcers—whether it is political or something that they
disagree with—or comments that people disagree with that our talk-back callers have
actually made. It usually comes down to a simple difference of opinion. Personally, I find
that, taking the time to talk through these issues, it is rare that anyone actually ever takes
any further action.

    Mr Carroll—It is generally the rule that the station manager or a program manager who
is a senior executive in the station actually handles the calls themselves and will take the
complaint directly and, in many cases, can resolve the issue over the phone without the need
to go to written complaints from the complainant and a reply. Quite often, it can be dealt
with on the spot.

     Mr Buschman—If that is not the case, then it is certainly my experience in this network
and another previous network that I was with that we then ask the person to write a detailed
letter to us if they do not feel we have been able to placate their concern. That is then

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Wednesday, 22 April 1998                SENATE—Select                                        IT 365

responded to. It is not unusual for me not to have heard the piece to which they are
referring. The first course of action, if I cannot resolve it on the spot, is to call for a
transcript or a cassette of the offending piece and listen to it. If the complaint is still on the
basis that we are happy to be talking on the telephone, I will certainly call the person back
and discuss the fact that I agree or disagree with it. If the complaint comes in writing, we
will respond to it in writing. If that is unresolved, then obviously we advise them to take it
to the ABA if they are not comfortable with our response.

    CHAIR—What is Macquarie’s view about making clear to their listening audience that
there is this complaints mechanism and that FARB exists and does have a process? Do you
have community service announcements?

    Mr Buschman—No, we do not; in fact, to my knowledge, no radio broadcaster does
that. FARB do not really have a role to play in the complaints arena other than having set
the codes. The issue must be dealt with by the station and then through the ABA if no
satisfaction has been amicably agreed.

    CHAIR—Going back to the issue of immediacy and the opportunity for radio to actually
break stories—news flashes and so on—it has often been the case in the past that a death,
for example, through accident or some other unfortunate means, has been broken on radio,
and there is anecdotal evidence to suggest that that often means the family of that person
hears it first on radio. What sort of procedures do you have in place to ensure that that sort
of thing does not unnecessarily offend the immediate family of somebody affected like that?

    Mr Buschman—We have an absolutely clear policy that, regardless of whether we have
a journalist on site or not, unless the names have been officially released by the police we
will not release it.

   CHAIR—No matter who it is?

   Mr Buschman—No matter who it is.

   CHAIR—Would that be the policy of all radio stations or would that just be Macquarie?
Are you aware that other stations have that view?

   Mr Buschman—I would have to defer to Graeme for that. It is certainly our view.

    Mr Carroll—I would think that that would be the general policy. That is my understand-
ing, although I do not have an intimate knowledge of the daily operational policies of all the
stations. As a former journalist myself, in years gone by that has pretty much been the case.
It would be in exceptional circumstances if it were any different.

    Senator CALVERT—In your submission you note that your code of conduct is under
review; is there any particular reason why you are reviewing it if it is as good as you think it

   Mr Carroll—The codes are there to be reviewed every three or four years to remain
contemporary. We have had discussions with the ABA and it was considered that we needed

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to move to review the codes and to see whether there were any areas which needed to be

    Senator CALVERT—You do mention complaints there in particular being under review;
is there any particular reason for that? Have you had too many or not enough?

    Mr Carroll—No. We decided that one of the areas where there was some criticism, in
some circumstances, was delays in response. The Broadcasting Services Act allows for a
period of 60 days to elapse before a complaint can be taken to the ABA. We considered, in
consultation with the ABA, that for some of the complaints they have received that period is
too long, although in the majority I would expect that most of those complaints would
probably have been dealt with within about two or three weeks or, in a lot of cases, over the
phone. But we are moving to tighten that procedure to bring it down to 30 days when you
have a written complaint.

    Senator CALVERT—So that is the sort of change you are looking at?

    Mr Carroll—Yes.

   Senator CALVERT—I had a quick look through this and I note in your code of practice
1 you talk about:

A licensee shall not broadcast language which would offend to a substantial degree the contemporary standards of
decency held by the audience of the station.

Does that apply to music as well?

    Mr Carroll—Yes, it applies to music stations and all stations. Radio is much more
tightly focused in terms of demographics. You will have a radio station targeting, say, an 18
to 39 age group and they are fully aware, through their own research, of the level of
discussion or language which a certain category or demographic of listener will accept and
they deal with that appropriately. It is very rare that they get complaints based on those
issues. In my experience with looking back over the codes and the complaints and the
responses that we have had from the station those sorts of issues have been very little.

    Senator CALVERT—Some of these complaints obviously do not get through to you up
here but down in Tasmania I have had at least three constituents come in with imported CDs
that have been played on radio and that are just absolute filth quite frankly. In fact one of
them I presented to the community standards committee. I do not know whether they tabled
it or what they did with it.

    CHAIR—One would hope they did not play it.

    Senator CALVERT—Well, yes, it was pretty foul. I just wonder what happens in the
case of something like that. Do you have the power to tell the stations to take this sort of
material off air or is it up to their own standards?

                                    INFORMATION TECHNOLOGIES
Wednesday, 22 April 1998               SENATE—Select                                      IT 367

    Mr Carroll—Under our code the responsibility rests with the station. Was it a commer-
cial station they were referring to?

   Senator CALVERT—No, it was not a commercial station. It was one that has got the
same initials, three times. I have had similar complaints about language on that station as
well but nothing seems to happen.

   Mr Carroll—I cannot speak for—

   Senator CALVERT—So you are only talking about commercial radio?

   Mr Carroll—We are speaking purely about commercial radio.

   Senator CALVERT—I have not got any further questions at this point of time.

    CHAIR—Mr Buschman, where a breach of a code is shown up by your scrutiny of
either a transcript or a tape, be it something that has been taken off a wire service or
something that has been initiated through talkback or whatever, what is the process that you
then put in place?

    Mr Buschman—I would speak with the announcer concerned. Of course, it depends on
the gravity of the breach or if it is a clear breach. If I am at all confused I will always speak
with FARB and have a discussion with them about whether my understanding of the
particular code is relevant and correct. If we had breached a code we would sit down with
the announcer and talk to them about it. If it was a major breach we would either suspend or
remove the announcer, I would think, depending on whether it was a first offence.

    CHAIR—I am thinking of a situation where perhaps contempt of court or something
really serious might be involved. This is long before the DPP might have got involved. If
you pick up something as serious as that, what would you then do in your stations?

    Mr Buschman—We would naturally speak with the announcer. If they did not under-
stand that they had made this massive breach we would take them off air to protect
ourselves. If they understood that it was a mistake, I guess it would depend on whether it
was in relation to a complaint or whether it was something we picked up ourselves. I am not
sure what body we would actually take that to if we realised we had done something and no-
one had actually picked it up. But we would certainly act to protect ourselves by taking that
announcer or that journalist off the air.

    CHAIR—If the person who initially rang and complained was not happy with the way
you dealt with that and it went on to FARB, what sanctions could FARB impose on the
station, if any, in its own adjudication of an issue like that?

    Mr Carroll—FARB as such does not adjudicate on any of the complaints that are made
to stations. With regard to an issue such as contempt or a defamation complaint, it is
generally the rule that the stations will immediately get in contact with our own legal
advisers and deal with it appropriately in those circles. That has been the experience that I

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IT 368                                  SENATE—Select                 Wednesday, 22 April 1998

have had. We will get inquiries at FARB about those sorts of issues but, generally, they will
defer immediately to their legal advisers because of the seriousness of the issue.

   CHAIR—You mentioned in your submission that you had just over 7,000 complaints
between May 1993 and September 1997. What would be the general nature of those
complaints? Do they fit into particular categories that you could outline for us?

   Mr Carroll—Generally, talk and discussion, because of its controversial nature—

   CHAIR—You mean talkback?

    Mr Carroll—Talkback radio or some talkback on music programs as well—there is a
limited amount of that—generally generates the most number of complaints and that is by
virtue of its controversial nature. There are other complaints. We do get some about
advertising and there are general miscellaneous complaints that people will make in relation
to the codes as well. Radio stations get an enormous amount of general comment and often
that is very much related to, ‘I don’t like the views of a certain announcer’ or ‘I don’t like
that announcer’. But, in relation to the codes, it is that talk and discussion area that generally
generates the most. Often that is because the complainant does not agree with the views
being expressed by the announcer.

    CHAIR—There is increasing empirical evidence that radio and television and, to a
similar extent, the print media now have views not news. Would there be a category of
complaint that would relate to bias that would come in? Would there be a number of those
complaints that would fit into that category of bias rather than, ‘I disagree with what he
said,’ because it happens to concern a community issue?

    Mr Carroll—I will have to defer to Mr Buschman on that issue, because what we
receive at FARB is simply a tabulation of the number of complaints in the various areas. We
are not supplied with the actual detailed complaint that is made to the station, which they
keep as a record. So I would imagine there may well be.

   CHAIR—Perhaps I could just add a little bit more. The suggestion has been that
reporters have become commentators.

    Mr Buschman—Yes, I have heard that suggestion. I must admit I personally categorise
it as the same thing. Bias is that people just simply disagree with an announcer’s view or
another caller’s view on a particular topic. We are accused, from time to time, of being
biased politically or in any fashion. Again, it comes down to basically everyone’s personal
opinion. When you have very opinionated people listening and you have opinionated people
speaking as announcers and journalists, yes, you can come into conflict.

    CHAIR—On your own radio stations, during the time when you are aware that families
might be sitting down eating with the radio on, or children might be listening, do you have
guidelines for announcers to be aware of when covering stories of a certain kind—for
example, particularly violent stories of the day or ongoing stories about royal commissions
into paedophilia, or those sorts of issues? Do you, in any way, modify or take into account

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Wednesday, 22 April 1998                          SENATE—Select                            IT 369

the listening audience at particular times in covering those sorts of stories, either in talkback
or in news?

    Mr Buschman—I would like to think, on the industry’s behalf, that they certain would.
In our instance, both of our stations target people 40-plus. We basically have no audience
under 40.

    CHAIR—They have grandchildren, though.

    Mr Buschman—Yes, I know, absolutely. By the nature of our two stations, we do not
have it. It is not an issue that has ever been raised. Certainly 2CH is a very sedate, relaxing
station, and we believe that our breakfast announcers on 2GB, whether it be Clive Robertson
who has recently departed that slot, or Graham Richardson doing breakfast now, are very
mindful of those sorts of issues.

    CHAIR—Thank you. I am conscious of the time. Do any of my colleagues have any
further questions for Mr Buschman?

    Senator HARRADINE—I imagine the language referred to in code of practice No. 1
not only would be what is normally called swearing, but also would be language used to
relate certain things that would be inappropriate for that to be done in such a style. You have
got here:

A licensee shall not broadcast a program which may:

(a) incite, encourage or present for their own sake violence or brutality;

What about language that is dealing with matters of pornography or sex or whatever? Does
that provision here cover that and if so—

   CHAIR—Senator Harradine, can I just ask, did you want Mr Buschman to respond,
because I think we could—

    Senator HARRADINE—No, I am sorry, this is for FARB.

    CHAIR—Thank you very much for coming in, Mr Buschman. If you want to leave now,
that would be fine.

    Mr Carroll—Sorry, 1.2 you are referring to?

    Senator HARRADINE—Yes, taste and decency when those matters are being con-
sidered by submitters to our committee. They deal generally in the area of sex and violence,
except when, obviously, we are talking about the questions of taste and decency. You have
got violence covered here, it appears.

    Mr Carroll—Without the visual impact of television and print—

    Senator HARRADINE—Yes, I understand.

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IT 370                                 SENATE—Select                 Wednesday, 22 April 1998

    Mr Carroll—It is a discussion issue which is dealt with, perhaps, in talkback radio.
Some of the stations do run late-night programs where they deal with some of those sex
issues, but I am not aware of any major level of complaints about those stations because of
the fact that the stations that run those sorts of programs are targeting a demographic that is
interested in those issues and can openly discuss those issues without breaching those

   Senator HARRADINE—I am not talking about questions of discussion; I am talking
about dealing with the matter in a titillatory sense or in a sense which would mediate in the
minds of the listeners, say, a calloused or manipulative orientation towards women.

   Mr Carroll—That certainly would not be tolerated. We do have specific guidelines
which are in addition to the codes which deal with issues of portrayal of women.

    Senator HARRADINE—Yes, I have seen those, but it does not seem to cover that sort
of thing.

   Mr Carroll—I would expect that all the stations would be quite mindful of those issues.

   Senator HARRADINE—Do you go and speak to the various stations and hold seminars
and so on?

    Mr Carroll—We do from time to time talk to the stations about issues relating to the
codes when they have a particular problem, but these problems in the area you are referring
to have not emerged as a problem issue.

   Senator HARRADINE—What about if there were a situation where a commercial
broadcasting station were to play that sort of record that was referred to by a senator a
moment ago?

    Mr Carroll—I cannot speak for the stations directly, but if it was played it would be on
a late-night program.

   Senator HARRADINE—How is that covered in here, in your codes of practice?

    Mr Carroll—Those sorts of issues are also covered under point 1.2. The language
referred to is in any sort of programming, and programming can be music, advertising or

   Senator CALVERT—It was language and sexual connotations.

    Mr Carroll—Quite often I have heard commercial radio stations play those sorts of
records with the language bleeped out.

    Senator CALVERT—Sometimes it is indistinguishable, too, with the raucous noise that
goes on behind it. As I said, I do not listen to that kind of music anyway, but I have had
quite a few parents that have come to my office and in fact taken the time to bring in a copy
of one of them.

                             INFORMATION TECHNOLOGIES
Wednesday, 22 April 1998              SENATE—Select                                     IT 371

    Mr Carroll—As I say, I cannot speak directly for the stations as to what type of music
they are playing, but I would expect that they would adhere to the codes in doing that

   Senator HARRADINE—What code covers that?

   Mr Carroll—Code 1.2 relating to language.

   Senator HARRADINE—No, I am not only talking about language. The senator
mentioned sexual connotations and so on involved. If you have parents that are concerned
about that, what is the code? Where do they complain and under what code?

   Mr Carroll—Under code 1.2. That covers all language broadcast by the station.

     Senator HARRADINE—That gets back, I suppose, to the sort of question I asked
initially. Code 1.2 then covers not only the swear-type language but also the sexual

   Mr Carroll—Yes, it does.

   Senator HARRADINE—Thank you.

    Senator CALVERT—I just want to say that I note there were 12 breaches of codes of
practice out of something like 7,000 complaints. Is there any particular one thing that stands
out in those breaches of the code, or does it vary?

    Mr Carroll—If I can recall correctly, I think one of the issues there was the length of
time in handling the complaints, and that is the very issue that we are dealing with in the
review of the codes that is currently under way.

   CHAIR—Thank you very much, Mr Carroll. I appreciate your patience this morning. I
hope you found the evidence from the previous witness as interesting as we did.

   Mr Carroll—Yes, thank you.

                             INFORMATION TECHNOLOGIES
IT 372                                 SENATE—Select                 Wednesday, 22 April 1998

[11.25 a.m.]

FIST, Mr Stewart Anthony, 70 Middle Harbour Road, Lindfield, New South Wales

   CHAIR—Welcome. Thank you for your patience this morning. I am sorry—we have
been running a little late. Do you have any comments to make on the capacity in which you
appear before the committee?

   Mr Fist—I am an independent journalist.

    CHAIR—The committee prefers that all evidence be given in public, but you may at any
time request that your evidence, part of your evidence or answers to specific questions be
given in camera and the committee will consider any such request. The committee has before
it submission No. 41 dated 4 April 1998. Are there are additions or alterations that you
would like to make to the submission at this stage?

   Mr Fist—No, but I would request the section on security not be published.

   CHAIR—What is your wish regarding appendices 4 to 8?

   Mr Fist—They were just for information. They are not really part of my submission.

    CHAIR—Is it the wish of the committee that the submission be published with the
exclusion of those appendices? There being no objection, it is so ordered. I now invite you
to speak to the committee and, at the conclusion of your remarks, we will ask you questions.

    Mr Fist—I sort of wear two hats here because my background is television journalism. I
was head of the Film and Television School’s training program for the industry—it was
called ‘open program’. In the last few years, I have been an editor and writer in computers
and communication. The width of your inquiry is a bit dazzling. I did not really know where
to go, so I apologise for the bits and pieces that you have got there.

   CHAIR—No, your submission is very interesting and broad.

    Mr Fist—I thought, quite frankly, that you would get a lot of input on the privacy
issues, especially with the Internet, so I deliberately avoided that, but I am quite happy to
talk about it. I thought it important to stress to the committee that privacy issues also involve
security and authentication issues when you talk about the Internet. Security and privacy are
really inseparable. Authentication is a sort of peripheral area of privacy too: do you know
who you are speaking to or, in Internet terms, who you are communicating with? Is someone
pretending to be someone else? That is an issue.

    I think it is important that the government becomes involved at some stage in the future
in the Internet in terms of supplying what I think of as the central directory services which
provide security, privacy and authentication. It needs to be in a form, though, that distances
the government from direct involvement in the way that the ABC and the Electoral Commis-
sion are distanced. I am quite happy to discuss that further if you want to.

                             INFORMATION TECHNOLOGIES
Wednesday, 22 April 1998                        SENATE—Select                                                   IT 373

    The other area which I think is important as far as the Internet is concerned is the issue
of caller number identification or caller number display, which I think is a major step
backwards as far as privacy is concerned. It is going to lead to all sorts of troubles in the
future—including a rash of telemarketing.

    I guess the other side is the area of television and radio. Quite a few years ago, when I
was head of the Film and Television School’s training programs, we had whole areas of
systematic analysis. The lack of it now, in many areas, has led to such analysis becoming
lightweight and sensationalist. Possibly with the exception of radio—specifically, ABC Radio
sometimes—there is little systematic analysis of issues for the public, which means issues
are treated in a very superficial way. I think that is a more of a problem actually than a lot
of the problems you seem to have been discussing here today.

    You asked questions of the FACTS people about rapid response and correction. I have
worked in television all my life, and I have never seen any real response at all to complaints.
They have a complaints system which is recording phone messages and, if they really get
threatened with defamation, they may correct information, but generally they will not bother
to correct information which is factually incorrect and might be quite dangerous. I have had
a number of experiences with that sort of problem.

    My background before I got into journalism was as an eye specialist, many years ago. A
newspaper once published an article in the health section which suggested that a person
suffering from iritis would benefit from dropping their prescribed medicine. It suggested that,
instead, they should go to a herbalist to get a certain root and cook it up for tea. Iritis is one
of those very dangerous diseases which can lead to glaucoma and blindness in a matter of
days. I wrote to the paper and I rang the paper, but I could not get them to retract it or do
anything about it. You get that sort of issue all the time. Even though these people know me
and my background to a fair degree, they still do not correct things, even when they know
that they are wrong. I think that is enough.

    CHAIR—Thank you, Mr Fist.

    Senator CALVERT—Mr Fist, you draw attention in particular to the CND. We did ask
some questions on this in Canberra of the National Office of Information Economy who

There will be a fine balance between ensuring that industry development is not stifled by overzealous laws or
inconsistent or unpredictable regimes which result in Australia’s economic marginalisation . . .

    Mr Fist—I would like to know where the economic benefit of CND is apart from

   Senator CALVERT—That is what I was going to ask. For instance, are these CND
numbers traded?

    Mr Fist—The CND?

    Senator CALVERT—Yes.

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IT 374                                         SENATE—Select                        Wednesday, 22 April 1998

    Mr Fist—CND carries your number across the telephone system and delivers it to the
other person. It is recorded nowadays—not so much in Australia, because CND is relatively
new here and it fails about 60 to 70 per cent of the time: in other words, the number being
delivered is very hairy, sometimes—

    CHAIR—You are not saying it would be someone else’s number, are you?

    Mr Fist—It often delivers a number other than the number of the call being made, but
that number will be related in some way. These things have been around for a long time.
America has a very good system and there have been a number of court cases and problems
where numbers are delivered which are not the number of the caller, sometimes through
deliberate ploys and sometimes through accidents that occur on the network. There is a
classic case where two couples went out to a nightclub. When they returned to their
respective homes, the husband was in the shower and the wife was just getting ready for bed
when she received an obscene phone call. The CND number—it is called CLI over there—
showed up and she recorded it. It was her girlfriend, whom they had just been out with.

    There was a big break-up over this and a court case. It turned out that the girlfriend had
rung to say something because she knew the other one was still up. The phone call had not
gone through; it had been engaged. The assumption is that that call came through at the
same time as the obscene call came and the wrong number was delivered. Do you under-
stand? So it is possible for the wrong number to be delivered. It is possible for associated
numbers to be delivered and it is possible for hackers to actually change the number that is
being delivered. It is not just neutral; it has got dangerous implications because people use it
for identification reasons.

   Senator CALVERT—You say in your evidence that telemarketing firms are being
encouraged to invade people’s privacy. Could you enlarge on that a bit?

    Mr Fist—I’m sorry?

    Senator CALVERT—You say that CND is:

. . . an obvious example here where the end-users and special telemarketing firms are being encouraged to invade
people’s privacy, aided and abetted by Telstra.

    Mr Fist—Telstra is delivering the CND. It is being recorded by companies which are
then using it internally, but they are also trading lists. They are building profiles on people—

    Senator CALVERT—That is what I meant: are they being traded?

    Mr Fist—Yes, they are being widely traded and will be more when CND is more
reliable in Australia. We have got two things that stop telemarketing working here: CND is
not reliable, and it costs 25c for a local phone call. In the States, local phone calls are
generally free. So telemarketing goes haywire in the States, which is why 60 per cent of
Californian city dwellers do not have a listed phone number; it is for that precise reason. In
Australia, with a 25c call, it is an obstacle to telemarketers, but it is not an obstacle to
Telstra’s telemarketers. This is where Telstra is getting an enormous advantage. It is starting

                                    INFORMATION TECHNOLOGIES
Wednesday, 22 April 1998              SENATE—Select                                     IT 375

to build telemarketing arms, because it virtually gets its calls free. You have to remember
that most telemarketing calls are in off-peak periods, when the phone system is not being
used. It does not add a load to the phone system; it uses a facility that is already there.

   Senator CALVERT—The national office also told us that the CND does not play a very
prominent role in the information economy. Do you agree with that?

    Mr Fist—At the present moment, it is not in Australia. It is counted because in America
they get CND in and then everyone starts to non-list their phone numbers. Therefore, CND
becomes less effective. In Australia, its success will depend on the number of people who
are not blocking the delivery of the numbers.

    I was very heartened the other day to see that someone said that 300,000 people have
already blocked their numbers permanently. If you think about it, it is very hard to get
300,000 Australians to do anything. To actually fill out a form and go through the enormous
process that Telstra has of getting the forms is quite something, I think.

    Senator CALVERT—You cite in your report how Telstra transferred information about
caller A to B, and we have talked about trading it. Do you think that these practices are
contrary to the Privacy Act, which Telstra is bound by?

   Mr Fist—I am sorry; I do not know the Privacy Act. They are contrary to what we
would normally accept as what Telstra should be doing.

   Senator CALVERT—I suppose that is a question we could ask someone else. I think
we will have the opportunity shortly.

    Mr Fist—The main thing about caller number identification is that the positive claims
made about it are complete rubbish. The claims that you can check your phone before you
pick it up and know who your caller is are probably true of about five per cent of the phone
calls that arrive in your home. How many people can remember more than about five or six

    Senator CALVERT—It only shows the number that is ringing, and you would not have
a clue who they were.

   Mr Fist—No. And are you going to ignore picking up the phone because you do not
know the number? Of course you are not. There is no privacy protection taking place there.

    The second thing is caller trace, where, if you get an obscene call, you write down what
the number is. We know that these numbers are very often not the numbers that were called.
We also know that there is a far better system of doing this, which is to record the number
back at the exchange. Virtually all American telephone companies now have this. If you get
an obscene call you dial *67 and that number immediately gets recorded and printed out in
the local exchange as an obscene call, with all the dates and everything. That is legal proof
that you do not get from just writing something down. There are alternatives to all of these
things which are better than the CND.

                             INFORMATION TECHNOLOGIES
IT 376                                 SENATE—Select                 Wednesday, 22 April 1998

    Senator QUIRKE—I think Telstra would say that there will be new telephones which
you will be able to program numbers into, so you will not have to remember numbers; in
fact, it can tell you who is ringing you. I rang a friend the other night on a mobile phone,
and he answered the phone and knew it was me straightaway. Obviously, that sort of
software or hardware is available now.

   CHAIR—But you do have a distinctive voice, Senator Quirke.

    Senator QUIRKE—He just answered the phone and knew straightaway. I thought I had
a visitation; I really wondered what had gone on.

   Mr Fist—Any computer system can do that.

    Senator QUIRKE—You say in your submission—and we found out from some
witnesses who were before us last week—that just having a silent line does not mean that it
is silent. In fact, for CND, it means nothing at all unless you deactivate it. You have to
physically opt out. What sort of information is transferred, other than just phone numbers?

     Mr Fist—That is basically all that is being transmitted at the present moment. We have
the basic form of CLI—caller line identification is the real name; CND is just Telstra’s
name—which just ships the number right across the network as part of the normal call-
dialling process. With CND, instead of it stopping at the last exchange it now gets delivered
out to you as modem tones. CND is just delivery over the last little local loop from the
exchange. The number is always being delivered. Deluxe CLI now goes back to the original
database and delivers the name and some other information. There are a number of stages of
it to come. It can deliver your name, who you are, what company you represent and all of
that sort of stuff. That is in the future. They are playing with that already.

   Senator QUIRKE—At this stage it is simply the transfer of telephone numbers?

   Mr Fist—Just the numbers.

   Senator QUIRKE—Is Telstra intent on continuing this process into the next generation?

    Mr Fist—It has enormous profit benefits for a telephone company. Telephone systems
are designed to satisfy peak load. Peak load occurs at 3 o’clock, roughly, on Friday
afternoon, so the whole of the telephone network is designed to handle 3 o’clock on a Friday
afternoon. Any other time, telephone networks are partly vacant. A vacant line earns nothing
and costs nothing. It costs nothing to transmit a phone call anywhere these days, even
interstate, so the more you can use the phone in off-peak times, the more revenue you get
without any increase in costs. CND gives them the ability to expand both in the use of the
calls and in the high level business of the provision of telemarketing services themselves. It
is potentially a billion dollar business, a few years down the track.

    Senator QUIRKE—If you have an unlisted number, a silent line or whatever you want
to call it, unless you opt out of this system, pretty soon all sorts of other information about
you other than telephone numbers is going to be transmitted?

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    Mr Fist—My understanding is different to yours. I thought that the change had been
made that they did automatically opt out silent numbers in Australia. You are possibly right.
In California there was a major battle because 60 per cent of Californian phone numbers
were unlisted and so the phone company introduced it over there without that thing and, of
course, people were up in arms and there was a really big battle. I have not heard the
outcome of that one yet either.

    Senator QUIRKE—We heard evidence here in this committee last week that there is an
opt-in and an opt-out provision.

   Mr Fist—We put the system in as automatically applying unless you opted out. That to
me is the mistake. Of course, if the telephone company introduces an opt-in system, then no-
one is going to use it. People who are opting in do not get any benefit out of it.

   Senator QUIRKE—That is in fact what the evidence was before us. Telstra were pretty
keen on making sure that that was in the system.

    Mr Fist—It is not a 100 per cent negative, incidentally. There are certain values in being
able to deliver number systems across to the other end. I think I have listed a couple in

    CHAIR—Mr Fist, could I just confirm something that I think you inferred in your
statement earlier, and that is that, because of technological difficulties, it would not be
unusual for somebody to in fact have an unlisted and perhaps top security number come up
as being a CND caller when in fact they are not the caller. If there was, for example, a
number that was only one digit off a top security unlisted number, it actually could come up
as a CND when in fact it was not the caller?

    Mr Fist—Yes, it is quite complex. A large organisation with a switchboard will often
have a whole lot of digital lines and will have a whole lot of analog lines. If someone makes
a call out of one of those digital lines, they have a line number. In other words, there is a
switchboard number and usually an extension number which makes the number. In fact, it is
very rare that that number is going to be delivered. What will be delivered is either the
overall number of the switch, which is sometimes delivered, but it might be a billing
number. Large companies often have a single number which is supposedly the billing
number and everything gets billed to that. So, if that is part of the database, that is what will
be delivered. So it might even be delivering a number because the billing might be in
Melbourne when the phone call is made in Sydney. I have not really had examples in
Australia, so I am not really sure. I am just judging on what the Americans are facing.

    You also have what is called hunt groups in telephones where you ring a certain single
number and it is called a rotary which goes around picking up different call centres, who is
available. It will rotate around until it finds one vacant and it will put the call through to
there. So in those sorts of circumstances also you get different numbers being delivered.

    Then on top of that is the ability to actually change the numbers and also to call forward
the numbers. For instance, I can call a certain number and it will recall. If I have got a
private line to Melbourne, I can call over the line and then it will call out through the

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switchboard at the other end. The number that gets delivered is the other end number, not
my number. There are actually a lot of privacy implications in that, because in American
systems—and I am not sure about Australian—there is a secret dial code that allows people
to call forward from other numbers, just private numbers. There are a couple of classic cases
where this has been done. What they do is ring up and they say to the person, ‘I’m a
telecom line tester, please put your phone down and dial star 91.’ And the people do that
and what they do is they transfer control of their phone line to the incoming call. Then the
incoming call can hop across to there and then redial out, delivering that CND number.

    Am I too technical there? Do you understand? It is a two-hop process. It goes from here
to some sucker and then goes from the sucker to an international call usually. That is how
they make their international calls, the phone freaks. The number that is going to be
delivered is the number of that second dialling, not the first.

   CHAIR—Presumably that is highly illegal.

   Mr Fist—Yes, that is illegal, but it is the sort of thing that is done all the time. There is
probably a number in Australia that allows you to do that, but I do not know what it is.

    Senator QUIRKE—Talking about suckers, I would just like to correct something for the
record. It has just been drawn to my attention that the Telecommunications Ombudsman last
week did give the evidence that silent lines were transmitted across. Apparently, he rang
through yesterday to say that his evidence was incorrect, that in fact silent lines are blocked.

   Mr Fist—I thought that was the case.

   Senator QUIRKE—I am sorry if I gave you the wrong impression on that.

   Mr Fist—But there have also been plenty of cases recently where the numbers have
been delivered despite being blocked, so it is not a total case. The blocking is not always

   CHAIR—Thanks, Mr Fist. I am sure your evidence has been of great interest to the
Australian Privacy Charter Council, who are listening intently to your evidence and who are
our next witnesses.

    Senator CALVERT—I would like to ask you briefly about your comments on analog
and digital phones. You say, talking about digital phones, that it is important to remember
that any security measure applying to cell phones only applies to radio link, not to the
totality of the conversation link. So you have some doubts about the security of digital

    Mr Fist—The GSM phone, which is the digital phone we use here, was touted as being
the most secure phone ever in the world. In fact, it was classed as NATO level security. It
used a 64-bit encryption code. I am sure you have been dealing with encryption codes. When
GSM was released in Australia, the security services jumped up and down and said, ‘That’s
too hard to crack.’ They were saying the same thing in Europe. So a compromise was
reached. In Australia for a while they switched the encryption off. That is done from the

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base station. The base station sets the level of encryption on a cell phone. It radios a
message out and says, ‘Use such and such encryption.’ So for a long time in Australia digital
cell phones were not encrypted at all. Now they are encrypted with 54-bit code. They took
the last 10 numbers of the code and made it all zero, so it is predicable. At that level, it is
fairly easy for a security service to crack the code. They can crack it in a matter of hours
with a supercomputer. But it is still highly secure, though only across a radio link.

    The other factor is that there has also got to be a system to stop the tracking of the
phone, because often the tracking information is more important than the conversation. GSM
had a highly secure system originally but that seems to have been completely removed,
because we have seen cases recently where tracking has been occurring. So they have
lessened the security on the radio link in terms of scrambling the voice. They have seeming-
ly taken the security right off about tracking. Once it gets into the cell-based station, it is in
a wire line system and can be tapped like any other phone.

   Senator CALVERT—Finally, Australia is now believed to be the world leader in the
number of legal phone taps per head of population—in front of the US and the UK. I just
wonder who is doing all the phone tapping.

    Mr Fist—I was quite surprised at that, too. As a journalist, there have been a number of
people whom I have talked to who tell me that we are very high in the number of phone
taps, certainly a lot higher on a per capita basis than the Americans.

   Senator CALVERT—Where can we find this information, do you think?

    Mr Fist—I went looking for it for this. I will try and hunt down what I can and send it
to you. It will only be vague stuff, and it will be off-the-record interviews that I have had.
People do not come out and tell you these things for publication and putting their names on

   Senator CALVERT—I would be interested to know.

    CHAIR—Thanks, Mr Fist, very much, and thank you for your comprehensive submis-

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[11.55 a.m.]

DIXON, Mr Timothy Edwin, Secretary, Australian Privacy Charter Council, Faculty of
Law, University of New South Wales, Sydney, New South Wales 2052

WATERS, Mr Nigel, Vice-President, Australian Privacy Charter Council, Faculty of
Law, University of New South Wales, Sydney, New South Wales 2052

    CHAIR—Welcome. The committee prefers all evidence to be given in public, but you
may at any time request that your evidence, part of your evidence or answers to specific
questions be given in camera—which means in private—and the committee will consider any
such request. The committee has before it submission No. 21 dated 15 January 1998. Are
there any alterations or additions that you would like to make to the submission at this

    Mr Waters—No alterations, but we would like to make a few general preparatory
remarks. Firstly, thank you for the opportunity to give evidence. This is a very important
issue from our point of view. I would like to make a few general comments about self-
regulation as a response to privacy concerns in the sectors you are looking at and then Tim
will use the calling number display issue as an example of how we think the current
approach is failing.

   In terms of the adequacy of the current self-regulatory approach in dealing with privacy
concerns, I am going to take as given your understanding of the privacy concerns. I am
happy to answer questions on that, but we will take that as read. We agree with the
government’s view that excessive regulation is unwelcome and undesirable, but we disagree
with their view that the current approach that they have taken adequately deals with privacy

    We think the approach is flawed in two important respects. Firstly, in relation to dealing
with individual sectors in seeking to have self-regulatory regimes dealing with broadcasting
on the one hand and telecommunications on the other, it simply does not recognise the
increasing convergence and the blurring of the boundaries. I think we are in danger of
ending up with a situation where both consumers and businesses are very confused that they
are possibly having to comply with different sets of rules when it is actually the same
organisation. Those sorts of sector boundaries are becoming irrelevant, and it does not make
sense any more to deal with a sectoral approach. We need consistent principles across the

    The second respect in which the approach is flawed is in being self-regulatory, and we
set out in our submission a number of reasons why we think that self-regulation cannot
deliver what both consumers and businesses are looking for in relation to confidence that
their personal information is being protected on the one hand and confidence that they can
invest knowing what the rules are from the business point of view. It fails both audiences in
its current form.

    We note that Senator Alston was reported last week at the electronic commerce summit
as referring to privacy and saying that this is one of the issues that are being addressed by

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governments around the world. He said, ‘None of them, as far as I can see, are ahead of us.’
We strongly challenge that view. Australia is clearly well behind international best practice
in terms of privacy protection. We are very much out of step with most of our trading
partners, and will become increasingly so, particularly later this year when the European data
protection directive starts to cut in. I am happy to expand on that later if you wish. I think at
this point it would be useful to have Tim use the calling number display issue as an example
of how we see the current approach failing.

    Mr Dixon—I thought it would be valuable for us to talk about calling number display
not only following up from the previous remarks but also because it is a good case study in
how effectively we are handling the introduction of new technologies which are likely to
have some quite significant implications in the future.

    The calling number display technology raises a range of privacy issues, and they have
been discussed in some of your submissions and there has been an ongoing debate in
Australia going back to the early 1990s. CND is a critical issue because of the nature of
organisational use of the equipment and the capacity to link telephone numbers to databases
to use it as a means of gathering more information about people often who will not be aware
of how that information is being gathered, and it also poses particular risks for people in
high risk situations such as victims of domestic violence.

    Worldwide, there have been debates around the introduction of CND. In Australia, we
had a lengthy process of debating the merits and the difficulties of CND. The outcome was
that Austel, in January 1996, issued a report from its privacy advisory committee which
essentially attempted to balance competing interests by saying, ‘We’ll introduce CND. It will
be by default. People’s numbers will be displayed when they make telephone calls’—an opt
out system, as we were discussing previously. The trade-off for that was that Telstra, and
any other carrier, was required to achieve a high level of public awareness of what CND was
about, what its privacy implications were and how people could block calls. So the trade-off
was that there must be this high level of awareness.

    What I want to do is explain my experience with that over the last eight months. We
have had a fairly significant involvement with the different activities that Telstra has
undertaken. They announced they were introducing the technology in December of last year.
Earlier last year, they announced they would have a reference panel of consumer representa-
tives to monitor and provide input to the campaign. That panel first met in August. We
raised a number of concerns with Telstra’s efforts. While we appreciated that there were a
lot of positive things that they were doing to raise awareness of what CND was about, we
felt that the campaign did not address the crucial issue in the public debate about CND,
which is how organisations will collect and use this number, particularly the idea that the
nature of the telephone service changes once you introduce this technology because it
essentially becomes the extension of a computer system. For the average Australian, it is a
jump in their thinking to understand that their phone becomes part of a computer system of
gathering data.

    We believe—and I guess I have gone through about eight meetings now with Telstra in
different contexts—that we believe that Telstra could communicate this information in a
clear way that was not prejudicial to the business users which said, ‘Yes, there are advanta-

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ges with the introduction of this service. There are also some disadvantages,’ and let people
make the choice. Our concern is that Telstra did not meet their commitments in doing that in
the campaign—that the campaign did not address that issue of how organisations will use
CND. I have consistently had feedback from people that they really do not understand the
basic function of CND. The basic reason why it is being introduced is that there is a demand
from businesses for this technology because it enables a new method of data collection. It
enables enhanced services, but it also involves some significant risks.

    The public education campaign was meant to achieve an 80 per cent awareness on three
issues, which was in the Austel report. Telstra admitted that they did not achieve those
targets, but they released a set of data about the achievement of targets. Our difficulty was—
and the entire committee said this at the end of November in our final meeting—that we felt
that Telstra had only released a very selective three questions that they had asked in their
report. In fact, the specific questions that they had asked and that they had released data on
and had given to the minister, were deliberately misleading. To give you a specific example
of that, the question which was used to test the public awareness of the privacy implications
of CND was the following:

With CND, the number of the caller, unless blocking, will be displayed. Before now, were you aware that if the
receiver recognises your number they will know who is calling prior to answering?

Eighty-two per cent awareness was achieved with that. The difficulty with that is, firstly, it
is a prompted question and, secondly, it does not say anything about the privacy implica-
tions; it just says what the equipment does—it displays a number. The privacy advisory
committee and the Austel report required that people were told how organisations would use
that data. It was a very explicit requirement, and Telstra refused to take that up in the public
education campaign.

    Confidentially, I have seen the rest of Telstra’s data, and it was made available to
members of the committee. I believe that, if that was made publicly available, people’s
perception of the public education campaign would be substantially different. On a number
of occasions, I have requested that Telstra make all of that information—the entire survey
results—available. They have refused to do that. We have also written to the minister
requesting—and I am not sure whether he has seen the full results—that he release the data.
I believe there is value—if it is the decision of the committee to do this—in seeking those
survey results from Telstra because I think that Telstra have substantially failed to meet their

    I think that anybody looking objectively at those survey results would see that there is a
very high level of concern in the community when people are told what CND involves, and
a very substantial number of people—far more than will ever vote for a single political party
in Australia—when asked, ‘Do you think the privacy implications of CND have been
explained to you?’ say, ‘No.’ Telstra will not make that research available.

   Since that time we have pursued the matter further through the process of the Australian
Communications Industry Forum. The commitment which the minister secured from Telstra
was that Telstra would provide monthly reports on the public education campaign from
December onwards, and the difficulty with that is that Telstra has not conducted any further

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research on awareness levels since they launched the service in December. Therefore, we
have no further measures and, in fact, they have wound down the public education campaign.

    We have sought through the ACIF process and through the process of code development
to secure a commitment to continuing public education. The difficulty is we have got these
targets; Telstra made a public commitment to meeting them; there is actually no regulatory
means to enforce them because it was under Austel, so the ACA, the Communications
Authority, does not have the power to enforce Telstra’s commitment.

    We are left with a position where Telstra says, ‘Well, we have largely achieved them and
we did what we could.’ Our concern is that they have fundamentally failed to achieve them,
yet there is no way forward from here.

    I have provided to the secretary, and I believe you have got it in front of you, the
document that we have been using to escalate the process through the Australian Communi-
cations Industry Forum to raise this issue. We had a meeting with one of their panels in the
last month to discuss this and to take it further, and we have provided the document which
we gave to the panel outlining the major concerns we have with that. That is the issue of
public education awareness.

    The other side of it is the broader issue of organisational use and how businesses will use
calling number display. The guidelines which were set out in the Austel report are not
enforced in the absence of privacy legislation in Australia.

    The minister requested in December that the carriers will require, as part of their contract
with their customers, that any business users of CND will comply with those guidelines. The
question was: what was the means of enforcement? What was the means of this being
implemented? He asked that the Australian Communications Authority handle any com-
plaints relating to abuse of those guidelines and, if there were difficulties, if there was a
breach of those guidelines, the ACA could request that the carrier terminate the provision of
CND to business customers.

    We have raised some concerns about that process, the primary one being that most
people are not aware of the process. We have now had advice from the Australian Com-
munications Authority that they cannot continue that function. They are not able to continue
that function because their legal advice is that that is in conflict with section 6 of the
Telecommunications Act which requires them to be the enforcer of the codes. They feel it is
not inappropriate, even under ministerial direction, to undertake additional functions in
relation to the telecommunications industry.

    There is a real difficulty about the extent of jurisdiction because your legislation only
covers the telecommunications industry, and what we are seeking to address here is really an
issue of the business use of the calling number display data. We have not been able to
progress that issue; that issue has been blocked. That is an issue more broadly of the privacy
protection in the entire community.

   On the issue of public education awareness, and the basic commitment that we had from
Telstra to actually inform the public and allow them informed choice, we are in a situation

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now where the Australian Communications Authority is not able to exercise any function to
independently monitor research to run a public education campaign. Telstra is reluctant to
undertake further action. The Telecommunications Industry Ombudsman cannot take on the
role, the Privacy Commissioner cannot take on the role and the Australian Communications
Industry Forum cannot take on the role.

    As a case study in the implementation of a new technology and a new service, I think
calling number display raises some serious concerns about the adequacy of the regulatory
framework that we now have to deal with new technologies which are likely to have quite
significant privacy implications.

   CHAIR—Thank you, Mr Dixon. I think at this point we will go to Senator Quirke.

    Senator QUIRKE—Thank you. You are punching out a pretty terrible picture of Telstra.
I do not like it too much either, but at the end of the day the implication in there is that
Telstra is hiding behind a number of these measures. Is that correct, and why would they be
doing that?

    Mr Dixon—I think Telstra have made positive initiatives with the introduction of calling
numbers favoured, but at the end of the day I think we are not far advanced from a
straightforward product launch. I think that is how it has occurred. The commercial issue is
that it is a new technology which will provide a substantial revenue stream to Telstra. I
think, amongst the many issues which are handled within an organisation of that size, it just
has not received terribly high priority. I think there is a feeling within Telstra, from the
contact that I have had at several different levels with them, that they really feel the issue
will just pass away.

    Senator QUIRKE—When you say there is significant revenue for them, that simply is
in telecommunications traffic or is it because they have got subsidiaries that are going to be
able to use this information?

    Mr Dixon—The answer is both, because any business user or residential user, if you
actually sign on to receive numbers, to be able to read numbers, you are paying an additional
cost per line, which is $5 a month for residential users and obviously it would be discounted
for business users. So there is an additional charge up-front which is a source of revenue.
The figures right now are that there are I think 100,000 or 200,000—it is in the hundreds of
thousands—of users that have actually turned CND on, but many of those are mobile phone
users who are not paying at this stage. So there is that source of revenue. Obviously, in the
future, as it does expand significantly, there is the potential for telemarketing, so there is a
value in increased traffic.

   Senator QUIRKE—Telstra, I understand, have some telemarketing arms; is that right?

   Mr Dixon—I understand that. I have not heard of that previously.

    Senator QUIRKE—Apart from the transmission of the number across the network itself,
what other fears do you have? What other information do you think is going to go down the
line that will infringe on people’s privacy in the future, whether they are aware of it or not?

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    Mr Dixon—I think the standard kind of linkages. You would have electronic White
Pages, a CD-rom directory which is very readily obtainable at very low cost. So you have a
number coming in and you immediately link that to the database, which means as soon as a
call comes in you know the address of the person, you know at least the person who owns
that telephone line, as well as the number. You might have a law enforcement agency; you
might have a crisis help line; you might have a commercial user.

    There is a variety of restrictions at the moment on how crisis help lines use it. They are
not allowed to use CND at this stage, but the potential is that you have immediate identifica-
tion of the caller and the loss of anonymity. That has the potential as well to be matched up
with any other data which an organisation has gathered on people. So you might have a large
organisation which has in fact got a database of several million people, and the potential is
that, as soon as that number comes in, they are able to link those things together.

    A strength of that is—if you have a bank, for example, that knows your home telephone
number, then you call in and they are immediately able to say, ‘Yes, Mr Dixon, which
account would you like to inquire about?’—that the speed of service is accelerated. To me
that is not a remarkably helpful service, but obviously there is some acceleration of speed of
service, and that is an additional advantage. For pizza delivery companies there are service
advantages, so that is where there are some positives, but obviously what is driving it is very
much the business use. The Telstra campaign focused entirely on domestic use—the TV
campaign, all of their literature other than the very detailed booklet which was provided to
people who called up for more information, yet it was such an inaccurate picture.

    If you look at what has happened in the United States, the number of business users
taking up CND is about four to one. This is a business service—calling number display is a
business service. A very small proportion, around five to seven per cent of residential users
in the United States, have taken up the service, whereas you are looking at figures of up to,
say, 15, 20 or 25 per cent with business users. So I think that Telstra has not fulfilled their
part of the bargain in giving the average Australian consumer a picture of how this is going
to be used. I say there are some service advantages, but there are some significant costs and
risks to privacy, and that is where the average Australian consumer does not know that and
Telstra has not given the opportunity for even this opt-out arrangement to work.

    Mr Waters—Another problem with the approach that the carriers have taken to the
limited campaign is that they have tended to focus on their subscribers—in other words, the
people who have signed up for the service—when the reality is that there is a broader
community of telephone users. I think Mr Fist made some very valuable points on this: that
the person telephoning is not the person whose number will be displayed. There is great
potential for both erroneous and inadvertently quite dangerous recording of a number and an
assumption that you have had a call from a certain person. Whilst the marketing examples
are probably those that are going to impact on people most, they are not the most harmful.
The harmful ones are where, inadvertently, the child of a judge or a policeman or a
psychologist makes a phone call and inadvertently discloses a number which is not intended
for use and could end up having some very serious consequences.

   Senator QUIRKE—How can that happen?

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    Mr Waters—It will not happen if it is a silent line; I think we have clarified that. But if
the subscriber has not opted for a silent line or a line block and has taken the view that they
will manage their calls in a certain way, that is only within their own control. The reality of
the social use of the telephone is that there is a whole range of other people technically—

    Senator QUIRKE—You would have to take the view that, if it is in the White Pages,
the world can actually access that phone number anyway.

    Mr Waters—The number might actually be in the name of a spouse or a partner. The
voice contact could give information about who is calling and the relationship which would
not necessarily be in the phone book. There are a number of scenarios that you can draw out
where an inadvertent disclosure could take place, which could have quite damaging

    Senator QUIRKE—At this stage we are simply talking about the transmission of the
number across the system itself. The previous witness suggested there were going to be new
generations to this—which seems obvious to me—and that in fact the telephone number is
just the first. It is the Trojan Horse and there is going to be a lot more that is going to go
across the whole system. If that is the case, is your organisation going to be consulted in this
process? Or is Telstra just going to continue on? Have they made any offers to keep
discussing with you some of these problems?

    Mr Waters—There is provision within the Australian communications industry for a
process for a review of the CND code. We are currently trying to finalise this code, which
will include a review period. We hope that that will pick it up, but I have to say that we are
not confident, based on experience so far, either that we will get consulted about some of
these issues or that they will honour commitments that they make.

   Senator QUIRKE—Telstra is showing no enthusiasm for continuing with this process?

    Mr Dixon—I think the critical issue is that Telstra has made very clear public commit-
ments and yet has walked away from those public commitments. It makes it very difficult. A
self-regulatory framework will work if there is an environment of trust and we have certainly
attempted to fulfil our part of the bargain. We have not released the data, which would be
highly damaging to Telstra, of their survey results. I have respected the confidentiality of the
conditions under which I was provided with that information. But I really feel that they have
not fulfilled their part of the arrangement. So it is hard for us to go ahead.

    This whole environment of self-regulation will only work if there is that environment of
trust. Certainly I think all of the consumer representatives involved in this process have been
very disappointed with Telstra’s performance over the last six or eight months. It is not to
say that there have not been some positive things done, but in the main it has been very
disappointing, even to the point where a lot of participants in the development of the code
have honestly looked around at each other at code development meetings and mumbled, ‘If
only we had a regulator who could actually step in and do something straightforward.’ Pretty
much everybody recognises that that would be the best answer to this issue—a regulator who
would go ahead and run a public education campaign. Yet there is no process under the
existing framework for us to do that or to address those concerns.

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    Senator HARRADINE—What about the Privacy Act? Mr Fist, in his submission to us,
said that:

Telstra has chosen to transfer information about the caller (the A-party), generally without his/her knowledge or
explicit permission, to the B-party in such a way that it can be used to store information on credit or buying patterns in
company databases, or to trigger instantaneous retrievals of information from telemarketing or credit databases.

I am just wondering how you would respond to that. Aren’t such practices likely to incur a
charge under the Privacy Act?

    Mr Waters—No, Telstra is not currently subject to the Privacy Act. It was taken out
from the coverage of the Privacy Act in 1992, so it is only subject now to the limited
privacy provisions in the Telecommunications Act, which is one of the problems in this area;
neither Telstra itself nor the organisation nor the users that we are talking about are subject
to any privacy law, other than the credit reporting provisions of the Privacy Act. I should say
that in relation to credit information they would be covered, but not just name and address.

    Senator HARRADINE—No, I meant the other. That is why I was referring to the
Privacy Act.

    Mr Dixon—One of the difficulties is that there is not a widespread understanding in
Australia that our Privacy Act has very narrow coverage. It only covers Commonwealth
agencies and a few very narrow areas of the private sector, such as the use of tax file
numbers and the use of credit reports, but there is no general coverage of privacy protection.
In that sense Australia is way behind our trading partners. Asia, Europe and some North
American countries are now adopting privacy protection. We have a difficult situation
because there is no overall privacy framework covering business.

   Senator CALVERT—Following on from that, a previous witness told us that there is
some evidence around to suggest that Australia is a world leader in legal phone taps. Do you
have any evidence to that effect?

   Mr Dixon—Information is collected by the New South Wales Attorney-General’s
Department. There is also a report.

    Mr Waters—Under the Telecommunications (Interception) Act there is an annual report
on Commonwealth interception, which gives a limited number of statistics. In that respect, I
attended a meeting last week of the international data protection commissioner’s telecom-
munications working party at which a resolution was passed calling on all countries to have
a minimum set of public accountability standards for telephone interception which would
include more detailed reporting about the volume and types of intercepts. Certainly Australia
is not the worst in terms of transparency on those issues, but it could be better. There could
be more public accountability on the scale and type of interception.

    Senator CALVERT—You mention, in your evidence, that privacy carriers, service
providers and telecommunications users might not comply with the EU data protection
directive of 1998. Do you not think that the responsibility for compliance through self-

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regulation is a better way to go, although you have indicated that regulation may be a better
way of going?

    Mr Waters—It seems clear that the European Union will not accept a purely self-
regulatory approach as being adequate under the terms of that directive. They have not made
final decisions, but all the indications are that they will require both a set of rules and
adequate enforcement mechanisms to ensure that people can get complaints dealt with and
redressed where things go wrong. Under the government’s current approach to these issues
we are not going to be able to satisfy that. Australian businesses will, from October, start to
face difficulties in trading with Europe.

   Senator CALVERT—Do you know much about the legislation that Malaysia and
Singapore have in place for regulation?

    Mr Waters—Singapore does not currently have any privacy legislation and Malaysia is
about to introduce legislation. Hong Kong, Taiwan and New Zealand in our region do have
comprehensive privacy laws applying to both the private and the public sectors, which is,
from our point of view, by far the most sensible way of dealing with this issue—a light-
handed, consistent set of rules that apply to everybody in the community. People know
where they stand. Businesses can invest. Consumers can take up new services with a degree
of confidence that their personal information will not be abused. We simply cannot under-
stand why the government has reversed its election commitment not to follow that route.

    Senator CALVERT—As far as the media is concerned, we had evidence from Lord
Wakeham, who is the chairman of the UK Press Complaints Commission, and he believes
that peer pressure and self-regulation was the way to go. Would you comment on that

    Mr Waters—In relation to privacy in the media, we do recognise that there are some
sort of special issues involved in balancing privacy against other public interests like free
expression and freedom of speech. Nevertheless, we do not regard the current self-regulatory
framework in Australia as adequate. The existing complaints mechanisms, such as the Press
Council and the various complaint schemes in broadcasting, simply do not appear to be
effective. I think you have heard evidence, including some this morning, about the lack of
effective action in relation to complaints under those schemes. We do not think it is right at
the moment, but we at the same time recognise that it is a special case, and we have called
in the submission for you to perhaps recommend either a reactivation of the Legal and
Constitutional Affairs Committee’s inquiry, which unfortunately never reported on this issue,
or another forum to take it up and look at it in more detail.

    Senator CALVERT—What are your major concerns about the use of the Internet and
privacy concerns there? If we do not have some sort of digital signature in the Internet, it is
very difficult to trace back people who would be evading one’s privacy, I guess.

    Mr Waters—Yes, we would share the concerns that Mr Fist raised about the design of
any system for registering digital signatures. We do have some involvement in some
consultative processes on the government’s proposals for public authentication frameworks,
but it does involve potentially a major privacy risk in terms of being able to track people’s

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transactions and use the registers of digital signatures as a form of surveillance. So, whilst
there are obvious privacy benefits in having encryption from a security point of view and a
confidentiality point of view, it needs to be balanced as well with the risks of further

    Senator CALVERT—Something that I have been asking and some of my colleagues
have been asking is that there does appear to be a different code of practice in the television
industry compared with the print media and magazines. Do you have any comment about
that at all? Is that something that your organisation would be concerned about, particularly
the more highlighted ones of the print media?

    Mr Waters—I think it just illustrates the general point I made earlier about the problems
of trying to deal with these issues on a sectoral basis. Particularly with convergence, with
broadcast firms moving into print and vice versa, it seems silly to have different rules. The
Privacy Commissioner, as you know, has attempted to devise a set of national principles that
could apply across the board, and we welcome that initiative. The problem is that, whilst we
have some difficulty with particular principles there, the idea of a general national set of
principles is one we support. The difficulty is the enforcement side. At the moment, we can
see no prospect of businesses voluntarily signing up to those rules. Certainly, the principle of
a single set of rules that applies across sectoral boundaries is one that we would support.

    Senator CALVERT—Do you think the same set of rules should apply to all people,
whether they be high profile people or ordinary people? It has been put to us that politicians
and media personalities probably should not expect the same sort of privacy concerns as the
ordinary citizen.

    Mr Waters—That is a view that I would personally share—I am not sure about Tim—
that there should be a differential, that people that voluntarily put themselves in the public
domain probably should have a lesser expectation, but that does not mean that some of the
rules should not apply. So the principle, I think, should be that the same rules apply to
everybody and then you look at whether there needs to be some modification of that in
relation to public figures.

    Senator CALVERT—Yes, it is a fine line. Lord Wakeham put to us in a video
conference we had with him that high profile people should in some cases be able to expect
privacy in public places, such as the beach, restaurants and the like. Other views put to us by
some media outlets are contrary to that, of course.

    Mr Dixon—My feeling is that the issue of privacy in the media is an immensely
complex one. Probably the best way to approach it is for an independent investigation to
really work through those issues, because I think that there is a clear and disturbing trend in
the Australian media. I think of the example of the front page picture of Senator Woods and
his wife a couple of years ago as an example of something where I think there was a clear
sense—a lot of people felt it—of overstepping the mark. But obviously, as all defamation
laws worldwide recognise, there is a slightly different role for somebody who is public life
than somebody who is in private life.

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    The process of actually striking that balance and not being too heavy-handed in establish-
ing some mechanism of resolving complaints and some jurisdiction for that is a complex
one. Probably in Australia we have not looked at that issue in depth or in detail in many

    Senator CALVERT—Getting back to the question I asked you previously, there seems
to be a differentiation between the television and the print media. The television industry
said this morning they would not have filmed that, whereas the print media will take the

    Mr Waters—The problem is that you are essentially allowing people to be judge and
jury on themselves. We would call for a single set of rules, but also a single independent
adjudicator with some teeth who can take some robust decisions.

    ACTING CHAIR—Thank you very much. We want to thank the witnesses for being
here today.

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[12.32 p.m.]

HARVEY, Mr Peter, Private Citizen

   CHAIR—Thank you very much for coming. I appreciate your patience. In what capacity
do you appear here today?

   Mr Harvey—As a private citizen. I am not here representing FACTS or Channel 9.

    CHAIR—The committee prefers all evidence to be given in public, but you may at any
time request that your evidence, part of your evidence or answers to specific questions be
given in camera—which means in private—and the committee will consider any such
request. I am aware that you have not made a written submission, but I wonder whether you
would care to make some general statements to the committee or whether you would prefer
us just to ask some questions.

    Mr Harvey—I think the only point I would like to make is the one I made to you on the
telephone some weeks ago, and that is that I quite strongly believe that self-regulation by
people in the industry is the way to go, is the answer to these problems. Beyond that, I am
open to whatever I can do to help the committee.

    CHAIR—Certainly that position has been strongly put by a number of witnesses,
including the Federation of Australian Commercial Television Stations this morning. I will
see if my colleagues would like to begin the questions.

    Senator QUIRKE—We got a pretty good picture this morning from the FACTS people
and the representatives of the different commercial networks about how they deal with com-
plaints. They made a number of points in that respect: that if a complaint comes in it is dealt
with reasonably speedily or as speedily as it can be in the circumstances; that at the
conclusion of this particular period action is taken if it is deemed necessary; and that there is
a constant report back to the person who has made the complaint. Is that your experience? Is
that what really happens out there?

   Mr Harvey—In my limited experience of that situation, yes. When I was running the
Canberra bureau of the Nine Network, that was certainly the way we operated. If somebody,
a member of parliament or a member of the public, made a complaint to us, it would be
examined immediately—by that I mean that day—and the person concerned would be
contacted that day and given an explanation of what we were doing.

    Senator QUIRKE—Is it your view that the privacy of people who may be related to
public figures, either by marriage or whatever, is given adequate protection under the present

    Mr Harvey—I think all generalisations are false. Having said that, the protection that is
given to the family members of people in the public eye by me and my peers has been,
through most of my career, absolute.

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   Senator QUIRKE—It is not the case that a person’s right to privacy is diminished
because of whom they are married to or whom they may be related to?

   Mr Harvey—No; unless, of course, the person related to the person in the public eye
becomes involved in some way in a matter of public concern.

    Senator QUIRKE—You may not wish to comment on this, but we are getting a
constant pattern of where we see the electronic media attempting to do what we would
consider to be the appropriate thing whereas we find that the effect of the Press Council on
the newspapers in Australia is far less than I would certainly see as desirable. We have
found, in evidence that has come before this committee in the last few months, a number of
examples where matters have been taken to the Press Council—in fact, flagrant breaches
have been reported to the Press Council—and very little or nothing has been done about it.
In one instance, the offending newspaper repeated the same photographs. They were referred
to here in evidence earlier this morning. They were of ex Senator Bob Woods in his
backyard with his wife and those sorts of things. Is it your view that the Press Council of
Australia needs beefing up to deal with these sorts of things or is it an area you have not
looked at?

   Mr Harvey—I have not looked at it, but I think any toothless tiger needs teeth.

   Senator QUIRKE—You have answered that very well.

   CHAIR—Mr Harvey, can I ask you a couple of questions which put the years that you
have had as a public broadcaster into perspective. I think it would probably be true to say
you have been working as a news commentator for what—20 or 25 years?

   Mr Harvey—That is very kind of you, Senator. It is a bit longer than that.

    CHAIR—Given that perspective, have you noticed any change in the way the media, in
particular the electronic media, covers public figures, particularly people who have a fairly
high public profile? If so, is there any point at which you noticed the change yourself? Could
you pinpoint a particular issue that gave rise to that change, if it occurred in fact?

    Mr Harvey—Yes, in fact it is quite distinct in my mind. When Jim Cairns was Treasurer
of this country, he conducted an extremely public affair with Ms Junie Morosi. Large parts
of that public affair were conducted in the rose gardens at the back of the tennis courts, and
being an old tennis player it was very difficult not to notice. To my mind, things changed
when the relationship between Dr Cairns and Ms Morosi was made by the pair of them
extremely public. They volunteered to appear in television programs and to discuss their
relationship with magazines. Up until that point, I had always regarded the private lives of
politicians—who were the people with whom I dealt mostly—as being just that. If their
private lives did not interfere or impinge in any way on their public duty, that was the end
of the matter, there was no concern. But there was a period when Dr Cairns and Ms Morosi
seemed to make it their business to become part of the public agenda. I think things changed
at that point.

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Wednesday, 22 April 1998              SENATE—Select                                     IT 393

    CHAIR—Do you think the current degree of scrutiny and, shall we say, alleged
invasions of privacy that some people are claiming to have taken place, particularly public
figures, has anything to do with the community’s demand for greater accountability in the
disbursement of funds to public figures?

   Mr Harvey—Yes.

    CHAIR—Do you think that flows over into the media’s attitude as well? Would they
reflect that increased demand for scrutiny?

   Mr Harvey—I guess it is a chicken and egg situation, isn’t it? Because the media now
can provide so much more information, people expect so much more information and
because people expect so much more information—and so it goes. But, yes, I agree with

    CHAIR—Has media technology played a role in that—for example, better tape
recorders, better cameras, better distance microphones, that sort of thing?

    Mr Harvey—Absolutely. Another example was the Duchess of York and the toe-sucking
episode. Those photographs were apparently taken from 2½ kilometres away, which is
absolutely extraordinary. Two and half kilometres—that is the sort of technology that NASA
uses for its satellites. It is a measure of what is now available.

   CHAIR—FACTS members assured us this morning that paparazzi photographers and
cameramen do not operate—

   Mr Harvey—In Australia?

   CHAIR—In Australia.

    Mr Harvey—I think that is true. In my long experience, I cannot recall ever having used
a classic paparazzi. There are freelance cameramen and there are stringer cameramen around
but, certainly in the context that I have operated in—politics and public affairs—I have not
been aware of any of the—and let’s say what we are talking about—Princess Diana

    CHAIR—Two quite significant events that occurred in Australia in terms of news
coverage were Thredbo and Port Arthur. I hasten to say that we have received no evidence
that has been critical of the way the media have behaved in those circumstances, including a
submission from the Police Commissioner in Tasmania who was very satisfied with the way
the media operated.

    It appears that a system which we know as ‘pooling’ operated to a large extent in
relation to the coverage of both of those events. In other words, only one cameraman was
used and then the footage was shared. It is my understanding that this is quite widely used.
As an individual journalist, how comfortable do you feel with pooling? It does remove, in a
sense, the right of an individual journalist to report his individual view of a set of circum-
stances. Do journalists regard pooling or media management in events such as that where

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there is a high degree of emotion involved as being a necessary adjunct to the management
of a crime or disaster scene?

    Mr Harvey—It is a very interesting question. In fact, the most recent example of it took
place here in Sydney yesterday. The Duke of Edinburgh arrived in town and the Office of
the Governor-General and the Duke’s office, I imagine, contacted Channel 9 and asked for
me and a camera crew to be the only reporter and camera crew to go to cover these events
that the Duke of Edinburgh was involved in yesterday. They said that this was a request for
pooling from Buckingham Palace. That is what happened. A camera crew and I went to
Admiralty House and we took a film of the Duke handing out his awards and what have you
and interviewed people. We then made that available to every other television station in the
country. From my point of view, I was quite happy with it, because I was the pooling
reporter and my crew was the pooling crew. The fact of the matter, I suspect, is that if we
had not agreed to that system these pictures of the Duke and the young people who had won
the awards would not have been taken at all because it seemed to be his call. That is the way
he wanted things to be. That is something that has to be considered when you are looking at
this question of pooling; the imposition is quite often the call of the person concerned rather
than the nature of the event, if you follow the point I am trying to make.

    CHAIR—We are all familiar with pooling because, depending on which door you go
through into Parliament House, you are interviewed by a journalist with a camera and you
might see that interview come up on another channel altogether because the doorstops are all
pooled. It is accepted that pooling takes place, but I am interested in the degree to which
deals can be done—I am not suggesting for a moment that yesterday’s circumstance was a
deal. I have heard of situations where, for example, a public figure confronted with a certain
set of embarrassing circumstances will do a deal whereby only one television channel will
film a statement being made by that public figure—no questions—and then that is supplied
as pooled footage. I wonder about the degree to which public scrutiny is satisfied in those
circumstances. Clearly, if you are not smart enough to know that that possibility exists, or if
you do not have a PR person to help you to know that, you are likely to have a media scrum
where a deal might have been done so that you got one person and no questions. I am
talking about the degree to which public interest is satisfied in those circumstances. Do you
have any comment to make on that?

    Mr Harvey—Only that that sort of circumstance—again, to come back to the point that I
made earlier—is imposed by the person holding the whip hand, as it were. Yesterday it was
the office of the Duke of Edinburgh and the Governor-General who decided that that was the
way they wanted things. What is the alternative? What are you supposed to do? Let us talk
hypothetically at the moment: if all the television stations in Australia did not like
yesterday’s pooling arrangement and were interested enough—which I doubt; but if they
were—what do they do? Beat down the gates of Admiralty House and march in with camera
crews and insist on their right? Physically the limitations on those situations are quite often
totally constraining—as they were yesterday. The way they wanted the pooling arrangement
was the way it was. The only alternative would have been to knock down the gates and go
charging in.

   CHAIR—How often does pooling take place?

                             INFORMATION TECHNOLOGIES
Wednesday, 22 April 1998              SENATE—Select                                     IT 395

    Mr Harvey—As you pointed out, in Parliament House in Canberra the pooling of
doorstops takes place on a regular basis; here in Sydney, infrequently. Again, it depends on
the circumstance. Yesterday’s example with the Duke of Edinburgh was a good example
because that is the sort of situation that you get. Next week the head of the International
Olympic Committee arrives here. He is going on a one-man inspection tour of something or
other out at the Olympic Games site. Physically there is room for only one camera crew to
go with him. The answer to your question is, infrequently.

    CHAIR—It is an interesting issue to explore because we have had plenty of evidence
which suggests that it is very important that the media are not regulated so that they have the
opportunity to argue public interest in the presentation of their news and views. But the case
may be that somebody who might be under scrutiny for an issue that has great public
importance—let us say a drug baron who is really in demand for a media interview—may be
smart enough to know that if he gets a public relations person with some clout in the
television industry he can do a deal whereby he might come out and make a statement that
may be filmed by the chosen pooling cameraman and television journalist, a couple of
friendly questions might be asked and that will be all he will do; he will disappear.

    I know that you may say, ‘What is the individual television station to do?’ and I agree
with you. But in a broader context, if we are going to have no regulation in this industry but
there is the opportunity for management and manipulation by the individual who is smarter
than the person who is picked up for drunk driving and is filmed running down the road
from the Central Court, how effective is the structure of public interest?

   Mr Harvey—If I may, ask the question the other way: how do you regulate it?

    CHAIR—I am not suggesting that. I am wondering about the degree to which there are
two sorts of coverage. Let us just go to another example. A high profile female politician,
reasonably recently, was given quite a lot of print media coverage about an event that
occurred a long time ago in her life. A couple of days after those stories were published
there was a media-managed event where a couple of sentences were made by way of a
statement on the basis that there were no questions and that was the end of it.

    That was accepted by the television stations because, I imagine, it was the only option
they were given. The degree to which public interest is served by that kind of arrangement is
the basis for the question I ask you. Is that a reasonably new phenomenon? Is that related to
who you know, in terms of how you manage the media and manipulate it, if you like? Or is
it something that, because of technology and the pressure of costs on television channels and
perhaps radio stations too, people now accept that the media cannot all be in one place at
one time and those opportunities are offered therefore?

    Mr Harvey—First question first: no, it is not new. Sir Robert Menzies—and it may well
have gone back before Sir Robert Menzies—was a great practitioner of the art of that sort of
restriction. I worked for many years with a very dear colleague of mine, a man called Alan
Reid, and Alan used to tell stories about the way in which Sir Robert Menzies would control
access to him by both print and later by television. Really, we are talking about a pooling
arrangement. Sir Robert would allow one person or one camera to come in and do something
and that would then be made available to everybody. So the answer is: no, it is not new.

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Ideally, I disagree with it. I would much rather see full access at all times, where physically
possible, by as many members of the media as possible.

    CHAIR—As you can imagine, people are fairly daunted by the idea of scrums, so there
is a great incentive to make those arrangements if you can.

   Mr Harvey—You people are not daunted.

   CHAIR—I will defer to my colleagues.

   Mr Harvey—Senators are certainly not daunted by anything that I know of.

    Senator HARRADINE—Could I ask a simple question. Self-regulation will work only if
the participants want it to work.

   Mr Harvey—Yes.

   Senator HARRADINE—If you have a particular channel which is deliberately pursuing
a policy of pushing the boundaries as far as possible, how do you deal with that situation
within the industry itself? That is a question I wonder whether, from your background, you
would be able to tell us about.

    Mr Harvey—I think there are a number of answers to it. If the channel concerned was
constantly offending, breaching, breaking and hurting, eventually that channel—and I
presume we are talking about public figures, public issues.

    Senator HARRADINE—It also ties in with the FACTS codes of practice on other
issues, including taste and decency.

    Mr Harvey—I am aware of them, but I am much more familiar with the news and
current affairs issues than the programming. The point that I was about to make is that
eventually the well runs dry for people who constantly poison the well. You find people
simply being cut off; it becomes very self-defeating. There are certain newspapers, television
stations, various organs around the world who simply cannot get access to the people, the
events or the stories that they would like to get access to because of the way in which they
have abused the process in the past. It does, very effectively, become self-policing.

     Senator CALVERT—You said at the beginning that you came along here as a private
citizen, obviously under your own motivation to appear before us.

    Mr Harvey—No. The motivation came from you. I was asked by the committee to do

   CHAIR—Mr Harvey was invited; yes.

    Senator CALVERT—I was going to say, because you started that way, that you might
have a tale to tell or you might have had some particular concern other than self-regulation
that you might want to impart to the committee.

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   Mr Harvey—I am just here to help.

    Senator CALVERT—Do you think there is a need as far as complaints about the
media—all media—are concerned to have an independent tribunal appointed by the
parliament along the lines that Stuart Littlemore suggested? I do not know whether you are
aware of his suggestion of having somewhere, like a court of law, to go to without legal
representation—an independent tribunal—which would cater for the less famous types of
complaints that are made by the public.

   Mr Harvey—Like an ombudsman?

    Senator CALVERT—Along that line. I think he suggested an informal tribunal that
would not be the subject of rules of evidence of the law courts and would not allow legal
representation but would uphold the voluntary code of ethics and conduct. I think what he
was on about was having something a little bit better than self-regulation; somewhere where
people who had complaints could go and not have to go through the processes like they do
for the Press Council, for instance.

    When I was in local government I made a complaint about one of my fellow aldermen,
who I believe defamed me. By the time I had gone through all the processes with the local
paper it was a waste of time because we really had to present evidence and all the rest. It
was like a court case. A normal, informal tribunal may have said, ‘I think you are right,’ and
the paper would have said, ‘Okay; we will make sure in future those sorts of things do not
happen,’ and everybody would have been happy. I think that is what he was referring to—an
unofficial, self-regulatory tribunal that can handle lots of these things before they get out of

   Mr Harvey—You mean like the Press Council.

    Senator CALVERT—Something like that. We have had evidence this morning. There is
a difference between the—

     Mr Harvey—No, I do not. Speaking privately and personally, I have found over the
years that the most effective way of handling complaints has been internally, as publicly as
possible in the sense that the person who makes the complaint is informed at every step
about what is being done within the organisation. That is certainly what we have done with
all the people in the organisations I have been involved with. I have seen people chastised
and lose their jobs because of complaints made against them, but in every case—if the
complaint was not silly or spurious but was proper, and I think most of them probably are—
I have seen every complaint examined and examined properly by people in the news
business who knew what they were talking about and who knew with whom they were

    Senator CALVERT—I think that particular case which recently occurred in Canberra
was a good example, for me anyway. In the Canberra press gallery, particularly in the
electronic media, if there is a cowboy or two or a young person around who has a camera
and is filming what they should not be filming within Parliament House, and they know the
rules or the guidelines, if he gets a kick in the backside I think everybody is happy.

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   CHAIR—It was interesting, though, that it did not stop the print media on that occasion.

   Senator CALVERT—That is the point I am just making.

   CHAIR—Mr Harvey may not be aware of it.

    Senator CALVERT—On the final night of the Wik debate before Easter, the President
allowed some of my colleagues to use her courtyard to have a few drinks because it was
going on late at night and it was the last night of the session.

   Senator QUIRKE—I do not know why I did not know about it.

    Senator CALVERT—Can I tell you that the Deputy President also had people in for
dinner in the other courtyard which is opposite. Anyway, in the course of the evening, I just
happened to come in from Whip’s duty and one of my colleagues said, ‘There is someone up
there on the balcony above that looks out over the President’s courtyard.’ She took off in the
dark, and we all laughed at her and said it was ridiculous, but there was a television
journalist up there who had been filming and luckily, or unluckily for him, she caught him
and brought him down to the President. The film was handed over and a complaint was
made and he got his backside kicked.

    The next day there was a headline in the Age that said ‘Senators champagne cork
popping as a result of the Wik debate’. I can tell you how many bottles of champagne were
there because I was in charge of the alcohol. There were two bottles. We raised our glasses
because one of our colleagues was going overseas. That was observed, obviously, from in
the dark upstairs and was put into a story which more or less said that Senator Herron was
toasting the defeat of the Wik bill, which was entirely untrue. It was nothing to do with that.
The fact is it happened and it was printed. And, once it is printed, you cannot do anything
about it.

   CHAIR—The television journalist’s film was handed over willingly, so that difference
between print and electronic is drawn again.

   Mr Harvey—I think it underlines my point: we regulate our industry.

   CHAIR—Yes, I agree.

   Senator HARRADINE—It is great to see him here.

    CHAIR—It is nice to be on this side of the questions, too, isn’t it? It is much more
relaxing for us. Could I just put a set of circumstances to you in closing. I am aware that
you are busy today. We have received a submission from the wife of a politician alleging
that she has been personally harassed by the electronic media in relation to alleged events
that have been published against her husband. She has alleged to us in a submission that
helicopters harassed her at home, that her front footpath was filled with media, that she was
followed when she went walking from their accommodation in Canberra when there was no
connection between her and the alleged offences in any way, and that she believed it
intruded on her personal privacy in a way that was unreasonable.

                             INFORMATION TECHNOLOGIES
Wednesday, 22 April 1998               SENATE—Select                                     IT 399

    I wonder if you could tell us what your personal line in the sand is about that sort of
thing because, whilst I understand everybody subscribes to various codes, when you are
actually out on a job like that it is a mixture, I am sure, of what you know to be the code
and your own personal judgment on those sorts of issues. How do you yourself manage that
sort of circumstance?

    Mr Harvey—It comes back to something I said earlier. If the person involved in the
scenario is not in any way directly involved with the matter of public interest beyond their
association with the person who is, they should not be harassed. They should not be chased
or pursued.

     CHAIR—We were able to have a telephone hook-up with Lord Wakeham, who is the
Chairman of the Privacy Complaints Commission in Great Britain. Interestingly enough, he
is a former government whip, so he comes at the position with years of experience of being
in a public position himself. He talked about the new privacy rules in Britain which rule out
the opportunity to film people on beaches, in restaurants, at funerals and in churches—in
what are considered private circumstances. I understand these rules and this new framework
stem from before Princess Diana died but, very obviously, there is a greater demand for that
sort of privacy now. How would you see that operating—back to that public interest issue—
if it were to be introduced in Australia?

    Mr Harvey—I was not aware that these laws, rules or whatever they are had been
passed. I do not understand how you would enforce them. How do you stop people taking
pictures of people on beaches? You cannot take a photograph of someone on a beach?

   CHAIR—There are certain areas where people cannot be filmed—public areas.

   Mr Harvey—It comes back to the judgment of the journalists, the cameramen and the
reporters involved in the issue. If the people who are being photographed are not involved in
a matter of public interest, they should not be photographed or harassed. I just do not
understand how you can apply laws like that, though. The technology has gone too far. You
cannot stop it.   As Rupert Murdoch said about satellite television: how do you stop it?
What do you do?

    CHAIR—That raises an interesting point in relation to the circumstances of President
Clinton. The enormous media attention that he was given just a month or two ago stemmed
not from a journalist operating within a code of practice as it might apply in America but
through an electronic news source which is totally unregulated and which everybody agrees
is going to have great difficulty in ever being regulated; that is, the Internet.

     Mr Harvey—Ten or 15 years from now, it will be the dominant medium—no question—
and that sort of Internet access will be commonplace, easy and cheap. Probably the best
example is that the existing television set in your home, by the time the digital system
arrives, will be able to access between 15 and 60 separate sources from websites and so on. I
do not accept the argument that you should be policing mainstream media. I think that a
measure of a democracy is in the freedom of its expression and the freedom of its speech,
not in the opposite. But, even if you accept that there has to be some sort of policing, I think
it is unworkable. It is simply impossible.

                             INFORMATION TECHNOLOGIES
IT 400                                SENATE—Select                 Wednesday, 22 April 1998

   CHAIR—It comes back to not only whether or not it should exist but any sort of
appropriate sanction that could be applied.

    Mr Harvey—I cannot answer the question; I have got no idea. How do you deal with
the problem? How do you phrase the question? We have made a quantum leap, and you
made the point yourself about the Clinton business. The Clinton business did not come out
of mainstream media pursuing the man. One bloke running a web site made all of this up. A
good example of that is the business about the FBI seizing the dress with semen stains on it,
which caused such tremendous publicity everywhere. That was initiated by that man’s web
site and it is totally untrue. The FBI did not do that and there was not such a dress, that
anybody knows about, but it has become part of common law. People believe it because this
man, sitting in his little house in Los Angeles with his 40,000-subscriber web site, put it on
the web site. How on earth do you deal with that? How do you police it? It is beyond me. I
do not know.

    CHAIR—Looking at the new rules in relation to media in the United Kingdom and
thinking about restaurants being off limits for filming purposes leads you to speculate on
deals which might be done in a restaurant which are not in the public interest and should be
publicised but would be unable to be filmed. I think one of your colleagues made the
interesting observation that this sort of exchange of information, or packages of drugs or
whatever, could take place in the second and third pew of St Mary’s church on a Sunday.

   Mr Harvey—It probably does.

   CHAIR—He did not say that, but, under this framework in the United Kingdom, that
could not be filmed.

    Mr Harvey—At an even more prosaic level, what on earth would the Sunday news-
papers fill their social columns with? They are full of people going out to restaurants and
cocktail parties. Is all of this now to be banned? How do you separate the one from the

   CHAIR—This is probably a very appropriate point at which to thank you for coming in.

   Mr Harvey—It was a pleasure; I hope it has been useful.

   CHAIR—Very useful. The change in demand for accountability and scrutiny which you
have been able to outline from your perspective of years of working in this medium have
been particularly useful—certainly to me. I would like to thank you on behalf of the
committee for coming in this morning. I will say again that it is much more comfortable for
me to ask you questions than to be put in a position of having to answer them! Thank you
very much.

                    Proceedings suspended from 1.13 p.m. to 2.14 p.m.

                             INFORMATION TECHNOLOGIES
Wednesday, 22 April 1998               SENATE—Select                                     IT 401

KRISHNAPILLAI, Mr Maha, Representing Phil Singleton, Chairman, Service Provid-
ers Industry Association, Level 11, 80 Alfred Street, Milsons Point, New South Wales

    CHAIR—I welcome representatives from the Service Providers Industry Association,
SPAN. The committee does prefer that all evidence be given in public, but you may at any
time request that your evidence, part of your evidence or answers to any specific questions
be given in camera—that is, in private—and the committee will consider any such request.
You have not made a written submission to the committee, so I now invite you to address
the committee in a general sense. At the conclusion of your remarks, we shall ask you some

    Mr Krishnapillai—Certainly. I represent the Service Providers Industry Association. It is
an association of service providers in the telecommunications and a range of other communi-
cations industries. It is a fairly large grouping of organisations. At the last SPAN committee
meeting, we asked our members whether they wanted SPAN to put a direct submission in to
this committee or would they rather just do individual submissions. The consensus was that
individual submissions would be more appropriate, because we have such a broad base of
different perspectives and we would be unable to come to some sort of consensus view on a
number of issues.

    As well as being with the Service Providers Industry Association, as I have mentioned,
my actual position is with Macquarie Corporate Telecommunications in charge of strategy.
SPAN’s interest in this Senate hearing basically flows from the fact that telecommunications,
as we now know, has been deregulated as of last year, and a range of industry self-regulation
bodies have been put into place. SPAN is represented on a number of those bodies, and our
individual members are also working on a range of those types of bodies.

    I mention in particular the Australian Communications Industry Forum, ACIF. ACIF is
the peak industry self-regulatory body. It has responsibility for quite a range of different
areas, particularly from technical standards, for example, all the way down to industry codes
on a whole range of industry and consumer related issues. SPAN members are, as I said,
represented on those working groups that develop industry codes, that look at a whole range
of different issues such as privacy, such as prices, terms and conditions, and how different
members interact with customers generally. But generally about SPAN involvement, if you
like, I am not too sure what specific questions you may all have.

   CHAIR—Perhaps a little bit about the history and the number of members.

    Mr Krishnapillai—SPAN has about 450 members. We cover telecommunications
service providers; carriers such as Telstra, Optus, et cetera; content service providers; mobile
phone companies—any company that has an interest in telecommunications or communica-
tions generally. We also have a number of Internet service providers as members. So, as I
said before, we have a very broad ranging membership base.

    I have given to each of the members a package of background information which gives a
bit more information on SPAN. We started in 1993 as the Service Providers Action Network,
whose key aim was to represent the needs of industry to government and regulatory bodies.

                             INFORMATION TECHNOLOGIES
IT 402                                 SENATE—Select                 Wednesday, 22 April 1998

It has now evolved to a position where it is no longer just service providers but, as I said,
quite a range of carriers, service providers and other organisations. It probably now is the
major industry body representing telecommunications companies.

    CHAIR—We have had a good deal of verbal evidence and also written submissions
about the difficulties that families face in trying to provide an Internet service to their homes
which is, if you like, family friendly to their set of values and standards. Many of the
witnesses have said that this is a marketing tool of the service provider itself. We heard, I
think, Ira Magaziner say last week at the big e-commerce conference in Canberra that a
whole range of initiatives are going to satisfy demands for both privacy and standards for
service providers for families on the net.

    But I suppose what I am interested in is the access that young people are able to have
through public institutions, such as the library or research facility or even the local computer
shop which invites kids to visit after school, and so on. Are you aware of the degree to
which this is likely to be a public image difficulty for your industry; and how do you see the
solution lying for your own service providers?

    Mr Krishnapillai—I guess there are two parts to that question. The first part is, as you
have said, whether companies will respond to what customers actually want in terms of
having secure access and ‘family friendly’ access. I believe that over the coming time,
because of that demand, companies will try to meet that demand. I know there are a
number—and I cannot speak personally for Internet service providers—of Internet service
providers that are very keen to be seen to be protecting the interests of family values, et
cetera, and making sure that they offer those sorts of products.

    I guess that the difficulty in the past has always been the technical limitations of being
able to stop people gaining access. A lot of those technical limitations are starting to be
overcome. I believe that, in the longer term, those sorts of technical options will help to
address those sorts of problems.

     I guess the other side of the equation is, as I mentioned beforehand, the need for the
industry as a whole to make sure that it has processes in place to ensure that you do not
have a rogue service provider, or whatever the case may be. That is where I would see
ACIF, for example, as having a fairly strong role in making sure that, if there are public
concerns, the industry puts together an industry code. That industry code then would be
registered with the Australian Communications Authority. It would have the power at law
behind it in the sense that, if a particular company did not meet the expectations of that
particular code, there would be sanctions attached to that. So I guess there are two sides to
it: the supply side and the demand side.

    The industry codes that have been developed by ACIF can be suggested by pretty much
anyone. The ACIF board has representation with a number of consumer groups—in
particular, the Australian Consumers Association and Consumer Telecommunications
Network. Both of those organisations, where they have concerns, are able to suggest the
development of particular industry codes. I note that the area of prices, terms and conditions,
for example, is one that some consumer groups have had some concerns about—the
transparency of being able to understand exactly what you are purchasing for different sorts

                             INFORMATION TECHNOLOGIES
Wednesday, 22 April 1998               SENATE—Select                                      IT 403

of services. As a result, ACIF has put together an industry code which ultimately will be
registered with the ACA. So I would see there being two answers to that question.

    CHAIR—What about this suggestion that has been made: that an icon be developed
which might be attached to a service provider, and that that icon be an internationally
accepted indicator denoting that a service provider fits a certain set of criteria in terms of
standards and values, and so on? That icon would be much the same as the woolmark or the
Mercedes Benz silver star which are used to denote a certain sort of vehicle or garment. It
would be an international icon indicating search engines for connecting to the net by people
who subscribe to those values, and their children could not access anything else.

    One of my colleagues Senator Tierney, who unfortunately is not here today, has been
pursuing a line of questioning that I will put to you. He feels very strongly that, whilst you
might be able to make that decision in your own home, the child going to the library or to a
friend’s house, where a different service provider is used, will still be able to access
something their parents may not know about but certainly would still prefer the child not to
access. How do you deal with an issue like that?

    Mr Krishnapillai—I do not know whether I really qualify to answer with the ultimate
solution in that situation. As I have said, I suspect that, if there is a demand for that type of
product—and if there is sufficient demand—there will be companies who will try to respond
to that demand. I suspect, as I have said before, that a lot of Internet service providers are
trying to address those sorts of issues and are setting up, as you say, those types of icons and
making sure that the software they use to access the Internet is sufficiently sophisticated to
enable the barring of access to certain areas. I am not sure at this particular point what the
technological solutions could be, but I would have thought ultimately that would be the only
way of addressing those sorts of issues.

    In terms of access in libraries and other public areas, again I do not know that the
Internet service providers—aside from having, as you said, some sort of icon—could address
that in any other way. I cannot see another way of flagging the accessing of areas that may
be inappropriate, other than with some sort of icon; other than for the library, for example,
having the responsibility to make sure that, when it does take on an Internet service provider,
it sets up a system in such a way that it limits access to certain types of products.

   CHAIR—Is your organisation aware of community pressure for this sort of—

    Mr Krishnapillai—Certainly, yes. As I have said, we are not one of the Internet service
providers, so I cannot really speak on their behalf. Certainly a lot of Internet service
providers seem to recognise that there is a very strong demand for that and, as a result, being
in business to obviously meet that demand, they are trying to develop those sorts of
products. The difficulty will always be how you limit access, as you have said, in those sorts
of public areas.

    Senator CALVERT—Following on that line about self-regulation and access in libraries
that the chair was talking about: is there technology available now where you have a PIN
number, or some such thing, to access material that would be suitable for adults? In other
words, in a library, certain programs are available but, if you want to access other programs,

                             INFORMATION TECHNOLOGIES
IT 404                                  SENATE—Select                 Wednesday, 22 April 1998

you have to use a PIN number so only an adult would have access to. Would that be

    Mr Krishnapillai—Certainly, I know a lot of Internet service providers have that sort of
set-up. That is a common way of making sure that, say in business, only people who have
been authorised to access particular systems are able to access them. In a similar way, say
within a corporate environment where you do not want people accessing particular databases,
you can set up a password situation.

   Senator CALVERT—Are they software filters? What are software filters?

    Mr Krishnapillai—That would be a software filter. That would have to be through the
Internet service provider installing that as part of their software.

   Senator CALVERT—Do you consider they are effective?

    Mr Krishnapillai—It depends on how they are set up and on the ability of people to
hack through those types of software filters. That will always be a problem, I suspect, with
any computing system. It is in the interests of Internet service providers, though, to make
them as foolproof as possible and to ensure that they are actually meeting that need. At the
end of the day, if the Internet service provider does not meet that particular library or
customer’s demand, then the library, or whoever, is free to go elsewhere.

    There are 450-odd Internet service providers around at the moment. I know, obviously, a
lot of them would be more than happy to take on that sort of role, if that is what they were
asked to do. Quite often, that is not what they are asked to do. Quite often, they are asked to
give a basic access mechanism and at a basic price. At the basic price, you tend to get the
very simple software that simply accesses the Internet. As with any of these things, to get a
more sophisticated access mechanism it tends to cost more, and that tends to be one of the
difficulties with setting up passwords.

    Senator CALVERT—We had evidence at a previous hearing about unscrupulous service
providers who were skimming, scrambling numbers to get a Visa card number and then
using that to provide services or to charge people for services they do not receive. There has
been some publicity about it. Do you think there will be a way of beating that sort of thing
eventually, or is that something that happens, with technology developing as quickly as it is,
that you cannot put the safeguards in place as quickly as you would like?

    Mr Krishnapillai—Again, it might be a personal view, but I suspect that the more
sophisticated the software programming becomes, the more likely you are to eliminate that
sort of fraud. Ultimately, it is in the interests of most Internet service providers to at least
have the perception of having Internet security or access security. I think you would find
most service providers would be very keen to make sure that the Internet and various other
access methodologies were seen to be secure.

   If there are fraudulent uses like that, that is something the industry wants to stamp down
on as well because it reflects very poorly on the rest of the industry. The particular example

                              INFORMATION TECHNOLOGIES
Wednesday, 22 April 1998               SENATE—Select                                      IT 405

you gave beforehand of scrambling credit cards is clearly fraudulent. There are no two ways
about it. It is certainly not anything that any normal company would want to engage in.

    Senator CALVERT—I think the banking industry is looking at enhancing their credit
cards, hiding them from the other side, so that their cards cannot be scrambled. There may
be a different way of using the smart cards.

    Mr Krishnapillai—One of the problems with bank type cards at the moment is that they
are reliant very heavily on magnetic technology, which is quite old technology and is not
particularly sophisticated in terms of scrambling, for example. With the move towards much
greater use of smart cards, which have a chip embedded in the card itself, I think a lot of
those problems will be overcome. The chip itself—again, depending on cost and all those
other issues—can provide far greater security than a magnetic strip.

    Senator QUIRKE—Your organisation just looks after telephone users, rather than
Internet service providers?

    Mr Krishnapillai—They are mainly telephone users. As I said, there are a number of
other organisations that look after Internet service providers and industry associations
specifically. We do have a number of Internet service providers as members. Because of the
fact that telecommunications, computing and Internet usage are converging very rapidly, you
find that many companies offer two or a combination of those services and you find that
most companies offer the Internet as well as other services. So it is not just telephony. It is a
whole range of other services that usually use telephony as an access vehicle.

   Senator QUIRKE—Where is your company in respect of the caller number display?
You were here this morning and heard some of the evidence that was given to us. Do you
have any fears for it?

   Mr Krishnapillai—Actually, I was not here this morning.

   Senator QUIRKE—Do your customers get access to CND?

    Mr Krishnapillai—In terms of CND, we are not a carrier as such. We are a service
provider so we do not have a network. We actually utilise a range of different networks—
that is, Telstra, Optus and various other networks that are applicable in certain situations and
various other data networks.

    In terms of CND, we have actually noticed, from Macquarie Corporate’s point of view, a
fairly low take-up in utilising that type of service. In fact, we have probably found that there
is a large percentage of people who are blocking CND and they possibly still have queries
about where people have got that type of information. It is not seen as a particularly
effective—ethical is the wrong word—way of telemarketing, for example, to get that
information. I see that changing probably in the next year or two. I suspect that a lot of
companies will want to utilise the information to speed up customer service, to make it more
efficient and that sort of thing. I think there will be benefits for customers as well as
companies in that sort of process.

                             INFORMATION TECHNOLOGIES
IT 406                                SENATE—Select                 Wednesday, 22 April 1998

    CHAIR—The question that I have asked representatives of a number of the peak bodies
and representatives of industry is the degree to which competition in the communications
industries—whether it is telecommunications, the Internet or the exchange of data—is
forcing people to really push the edge of the envelope in terms of codes of practice in order
to get a competitive advantage. Clearly, the degree to which self-regulation works in any
industry is related to the effectiveness and efficiency of the complaints regime. I am
interested in your view on the degree to which competition in your industry is really pushing
right at the bounds of the codes.

    Mr Krishnapillai—Just as an overview, I think competition within the telecommunica-
tions industry is very patchy. There are large sectors of the telecommunications industry—for
example, local calls, calls to mobiles and all sorts of other communications products and
services—which really have no competition and are unlikely to have competition in the near
future. That is probably in fact about half of the industry. In the other half of the industry—
as you pointed out, the Internet and various other services—there is a great deal of competi-
tion in some of those areas. Where there is no competition, I suspect the government has to
intervene in a regulatory sense to make sure that, first, there is competition and, second, the
dominant supplier in those areas looks after the interests of consumers as well as the
interests of other competitors. Where there is competition, I believe that organisations like
ACIF, as I said before, have the power, the mandate and the support to actually develop
those types of issues and cut them off before they become a problem.

    Telecommunications has been a fairly unique industry in some ways in establishing the
Telecommunications Industry Ombudsman. I personally believe the ombudsman has been
very successful in heading off those major types of problems and at least trying to resolve
them before they become major issues. A lot of that work has gone on behind the scenes and
it has led to the fact that I believe there are minimal numbers of complaints in the telecom-
munications industry for the size of the industry.

    If there were to be problems in developing industry codes, there will always be an option
for the minister or government regulators to actually request ACIF or other bodies to develop
an industry code. Again, that will be registered with the ACA and have the sanction of the
$10 million fines attached to it that we have all read about recently.

    CHAIR—Actually, we had the ombudsman in last week and his evidence was very
interesting and valuable. It is an interesting thing because, on the one hand, the competition
has certainly delivered lower trunk call charges and, certainly, lower international charges
but, as you say, there are sections of the community that make calls that are still very much
locked in. I am always intrigued, when the debate comes up about charged local calls, to ask
people what percentage of overall telephone calls are made from mobiles which are charged
local calls.

   Mr Krishnapillai—Exactly.

    CHAIR—I do not think people quite realise the degree to which we now make mobile
telephone calls.

                             INFORMATION TECHNOLOGIES
Wednesday, 22 April 1998               SENATE—Select                                      IT 407

    Mr Krishnapillai—And the other side of the coin, which is actually making calls to a
mobile from your fixed network. That is, in our business and in most telecommunications
businesses, the fastest growing part of the market. As I said beforehand, that is a straight
monopoly. Telstra is the only company that offers that service and therefore it can charge
pretty much what it likes.

   CHAIR—Good point to leave it on. Thank you very much for coming in, Mr
Krishnapillai. We appreciate your evidence very much.

   Mr Krishnapillai—Thank you very much, I hope it is of some use.

   CHAIR—Thank you for bringing this material for us.

   Senator CALVERT—Can I just ask one question?


    Senator CALVERT—One of our witnesses this morning made a statement, and it has
not been denied yet, that Australia is a world leader in legal phone taps—legal phone taps,
not illegal phone taps. Are you aware of that?

   Mr Krishnapillai—That is certainly not a figure I have heard before. I would be very,
very surprised if that was the case, particularly when you start comparing us to countries like
Chile, et cetera. I would be very surprised if that was the case.

   Senator CALVERT—In the industry there is highly sophisticated equipment that is
available now for people to access communications, is there not?

   Mr Krishnapillai—Definitely.

   Senator CALVERT—Legally, I presume.

    Mr Krishnapillai—Not legally. If you are talking about legal phone taps, it obviously
has to be through the Federal Police. The information I have had in the past has been that
that is actually very difficult to get, and a fairly low number of legal phone taps are actually

   Senator CALVERT—Does your organisation have a complaints department?

   Mr Krishnapillai—Yes, we have.

  Senator CALVERT—Do you get many complaints about your service provider

    Mr Krishnapillai—Sorry, SPAN itself does not have a complaints department. My
organisation itself does. SPAN is just an industry organisation so we do not directly do that.
I think most telecommunications companies have their own complaints departments. I am
sure John Pinnock would have mentioned that we all have to give him information about

                             INFORMATION TECHNOLOGIES
IT 408                                 SENATE—Select                  Wednesday, 22 April 1998

complaints. There is a quality check in there, if you like. If we start receiving a lot of
complaints through the TIO we know we are not doing our job properly.

   Senator CALVERT—I just wondered whether, as an organisation, you get complaints
about your members.

    Mr Krishnapillai—We tend to occasionally get queries about whether a company is
reputable. A lot of consumers ring up and ask, ‘Have you heard of this particular company?
How long have they been in business?’ We generally take the view that we will give them
some basic reference material that says this is the company and this is possibly who owns it,
that sort of information. We do not usually make a value judgment on whether that is a good
company or not. We simply suggest that you are best off shopping around and getting
information about what that company offers and whether it is appropriate for you.

   Senator CALVERT—Thank you.

                              INFORMATION TECHNOLOGIES
Wednesday, 22 April 1998               SENATE—Select                                      IT 409

[2.38 p.m.]

PEARSON, Professor Mark Leslie, Head of Communication and Media Studies, Bond
University, Gold Coast, Queensland 4229

    CHAIR—Welcome. The committee prefers all evidence to be given in public but you
may at any time request that your evidence, part of your evidence or answers to specific
questions be given in camera, which means in private, and the committee will consider any
such request. The committee has before it submission No. 24 dated 22 January 1998. Are
there any alterations or additions you would like to make to the submission at this stage?

   Prof. Pearson—No.

   CHAIR—The committee has authorised the publication of your submission under a
separate volume. I now invite you to speak to the committee and, at the conclusion of your
remarks, we will ask you some questions.

    Prof. Pearson—I might preface my remarks by saying that I provided those articles, the
chapter from my book and the article I wrote on press self-regulation mainly as background
material for the committee. I am more than happy to have come down to address the
committee but I did not present a formal submission as such. I have heard some very
interesting evidence this morning. I do not claim to be an expert in many of these matters; in
fact, my main expertise is in interpreting the law for journalists and trying to suggest ways
to adapt their journalistic practice to work within the law. I am certainly not a lawyer; there
are many who are experts there.

    I would like to start from a basic premise. It is something Peter Harvey, who gave
evidence not long ago, said and I agree with it. I do not believe at this stage that there is
need for more statutory regulation of the media as we know it, the mainstream traditional
media. There are ample laws and regulations already established to cover that field. But the
main problem is that these laws are inaccessible to most ordinary citizens. In fact, it is
beyond almost all but the very rich or those backed by some enterprise or organisation to
take on the mainstream media organisations in the courts if they have been wronged in some
way. I am a mid-career academic, a middle-class individual, and I would find great difficulty
in suing a media organisation for defamation—taking on something like News Corporation,
the Fairfax group or Channel 9—if was wronged in that way. That is where the major
problem lies.

    The difficulty, as I explain in that article, is that self-regulation in the print media at
least, as it has been established, has not worked effectively to date. This is due to a range of
reasons; one of them is the vested interests that are at stake. While the Press Council has
made changes in recent years to its membership, it is certainly dominated and funded by
publishers and therefore reflects that kind of interest.

    Interestingly, the main aim of the Press Council, as it states in its own charter, is to
preserve and defend press freedom. That is a very noble cause; it is something which I agree
with as well, but it is something that stands first in its charter, ahead of its role as a
complaints body. It is a question of whether a body that is openly advocating and lobbying

                             INFORMATION TECHNOLOGIES
IT 410                                 SENATE—Select                  Wednesday, 22 April 1998

for press freedom can handle complaints in an unbiased fashion. Similarly, the Australian
Journalists Association has a vested interest. Its disciplinary procedures involve a jury of
peers, so you have journalists trying other journalists and that has all sorts of problems, as
you would understand.

    The next major difficulty with self-regulation has been the diversity of media interests.
Self-regulatory practices and regimes differ across different industries and these industries
are being converged, as you are well aware. Part of this problem is that the convergence is
happening in the media but it is not happening in our system of government. Constitutio-
nally, you people are able to make decisions and pass legislation on telecommunication
issues but it is certainly a debatable point as to whether you are able to pass legislation or
regulate the print media in its operations. This moot point of whether you could in fact
establish a regulatory body to supervise the print media has come up time and time again in
other inquiries.

     The next problem with self-regulation is the increasing emphasis on the commercial
imperative in the media themselves. We have a whole shift in media outlets—a shift in
attitude towards the bottom line, circulations and ratings while still flying the flag of public
interest and press freedom. You wonder who is the real master sometimes of some of these
organisations—whether it is the MBA that is ruling the newsroom, as one American article
suggested, or whether it is a legitimate concern for public interest rather than just what is
interesting to the public.

    There is no other area where that difference is more distinct than in the television
industry where you have the likes of Channel 9 news for half an hour each evening—which
by all accounts takes a reasonable distanced, balanced approach to the news—immediately
followed by an infotainment program which has been criticised time and again, A Current
Affair, which has a different imperative at stake. They are both after ratings but the latter
seems to be much more vigorous in its seeking out of ratings. So that is the whole issue of
infotainment versus traditional journalism values.

    I would ask the question: is there a system that does not constitute self-regulation, that
goes beyond self-regulation, but still falls short of legislative action? You mentioned earlier
the Littlemore proposal for some sort of tribunal or complaints body to handle complaints
against all media. Littlemore would know much more than I would about the constitutional
basis but, as I suggested, there could even be constitutional problems there with handling
press complaints that way.

    The major problem is that people do not understand the mechanisms that are available
and do not have the resources to take the media on in the courts. I would suggest that there
could well be established an organisation, perhaps even self-funded, which would act as a
media complaints or referral centre that could well be funded by the organisations them-
selves in a similar way to the Press Council at the moment. It could even be funded by the
successful lay down misere actions that it wins on behalf of those that it is representing. It
could be a body which handles complaints and is independent from but perhaps partly
funded by the media. Perhaps it may have some government seed funding, but on an
ongoing basis it could well be funded by having actions that are clearly going to be

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successful. I would suggest something like that as a halfway measure before we start passing
more legislation in an already heavily legislated field.

  Senator CALVERT—Are you aware of the procedures of the UK Press Complaints
Commission, the PCC?

   Prof. Pearson—Yes.

   Senator CALVERT—What do you think we can learn from them that we do not already
know from our own Press Council?

    Prof. Pearson—For a start, that was established as a halfway measure. The ultimate
threat was that there would be a press complaints tribunal established which would be a
legislative measure. I do not believe that Britain has the constitutional problem that Australia
has in establishing such a body. Certainly the print media excesses were much more extreme
in Britain in the period which led up to the establishment of that. In Australia there seems to
be more excesses amongst the tabloid television tigers, amongst the evening current affairs
programs, than there are amongst the newspapers because we have fewer tabloid newspapers.

    In answer to your question—what can we learn from them?—we can learn that that is a
halfway measure that seems to be working effectively in Britain. It goes beyond the
Australian Press Council as we know it but falls short of legislative intervention.

    Senator CALVERT—You would have heard the chair talking earlier today about
privacy conditions in the UK where high profile people, whether they be on the beach, in
restaurants or church or whatever, are not allowed to be photographed. Do you think that is
going too far?

   Prof. Pearson—It surprises me to hear that. You may well have the legislation that
shows that is exactly the way—

   CHAIR—It was during the evidence that Lord Wakeham gave us.

    Prof. Pearson—Yes, I would not be surprised in that perhaps there is some
misunderstanding in that being handed down the line. It seems that it would probably be
more likely photographs published as a result of such an occasion. I noticed during Peter
Harvey’s testimony that he seemed concerned that we could not even take photographs in
restaurants or whatever for the social pages and the effects it would have there. I think it
might be intrusive photos that finished up being published as a result of such episodes. If
that were the case, then there would not be a problem with actually taking photographs. I
suppose you are invading people’s privacy to take them, but the greater concern comes when
such private matters are published.

    Could we institute it here? I would have grave reservations about going that far as a
restriction on media freedom. I have no doubt that there are some restrictions to do with
privacy that could be instituted because media organisations cannot have it both ways. They
cannot, on the one hand, claim to be defending the public interest and press freedom and so
on and, on the other hand, be profiting from people’s grief and private moments.

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    Senator CALVERT—You heard Peter Harvey this morning and you probably heard the
line of questioning we put to him about the differences between self-regulating codes of
conduct in the electronic media and then comparing that to the print media. There seem to
be different standards or different outcomes to complaints, and you have referred to the fact
that you would not want to take on the Press Council. Have you got any opinion as to why
one organisation seems to have a better standard of self-regulation than the other?

    Prof. Pearson—I do respect the Press Council to an extent. In fact, they awarded me a
prize for that paper that I wrote criticising them, so they cannot be too bad. For a start, the
self-regulation that the commercial stations work under stems from regulation. The Broad-
casting Act says they shall self-regulate and, if they do not, there are consequences or they
need to keep reporting back to the ABA or whatever. What you have is a regulatory body in
the background to ensure that self-regulation is working properly. Whereas, with the press
situation, there is no such legislation and there is no regulatory body. The Press Council was
only established in response to criticism under fear of regulation and has only been adapted
along the way because of fear of such further regulation. It is only when the big stick comes
out that the press tries to get its act back together. That is what has happened in Britain.
That is how they have done it there.

    I would be very surprised if people were actually satisfied with the FACTS complaints
mechanism. There comes a point at which people’s patience runs out. When you read the
procedures for the FACTS complaints mechanism, firstly, they are dealing with a news
director or whatever in a busy newsroom and perhaps a station manager and there is
correspondence going on there. Then there is a letter sent or the station takes some action,
perhaps some counselling or something that occurs. I am just wondering how all this
happens in the context of a production company like that which operates A Current Affair or
any of the other tabloid television evening programs. To what extent are the people to whom
attention has been drawn in those programs—the ordinary individuals—really satisfied with
that complaints mechanism, or have they just given up?

    Senator CALVERT—How do they deal with the ‘cowboys’, as I think they called them
this morning—the freelancers and subcontractors who operate for these, particularly, current
affairs programs and the like? How can you regulate those or try to control those? It is very

    Prof. Pearson—If you had some slightly distant body that is not necessarily a legislative
arrangement, perhaps it would be a step towards that.

   Senator CALVERT—Do you mean an Littlemore type independent tribunal?

    Prof. Pearson—No, a tribunal is a legislative organisation. Something like the Press
Council but which goes further and is perhaps funded by the media organisations them-
selves, and can speed up the complaints process and bring it to its head and perhaps even
help fund individuals in taking action against media organisations. That would be a step in
the right direction.

    Senator CALVERT—Redress against the Press Council is far too long at the moment,
isn’t it?

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    Prof. Pearson—The Press Council has fairly clear procedures but they take forever and
there is no penalty at the end of it. There is, at best, a published decision.

    Senator CALVERT—In your article, you talk about the different views the Press
Council takes. You talk about one journalist who photographed a pop star and improperly
gained access to her room and was suspended for several years. Then, further on, you talk
about a person who went undercover and received a Walkley Award. The same thing
happened with photographs of a senator and his wife that have been discussed here today.
That received a Walkley Award and yet it was something that was seen by most to be
outside the bounds of privacy.

    CHAIR—And the Press Council itself found it to be a blatant disregard of the people’s
privacy. The newspaper the next day published an editorial saying, ‘We’ll do it again if we
want.’ As Senator Calvert says, five photographs were submitted by the photographer who
took that series of photographs and a Walkley was awarded for the folio of photographs. The
newspaper published only the offending photograph the next day as an example of the folio,
and when the committee questioned the Press Council about what action they had taken, they
professed not to have known that the photograph was published again because there had not
been a complaint. But when we questioned them about what could have been done if they
had got a complaint, there was actually no more effective sanction than the sanction they had
already given, which had clearly been ineffective in that case. It is a very interesting test
case of the efficacy of the procedures, I suppose you would say.

    Prof. Pearson—The alternative mechanism would have been to complain about the
journalist’s behaviour through the union’s judiciary, which may well have had the same
problem at the end of it. I think the complaint, with respect to the instance you mentioned
earlier with the journalist who had gone under cover, was made through the AJA Judiciary
Committee, and we had that similar paradox in that, on the one hand, one behaviour was
rewarded with the Walkley Award and, on the other hand, the journalist was fined under the
union disciplinary regulations for breaching them.

   Senator QUIRKE—What if they are not in the union?

    Prof. Pearson—The problem with the union’s regulations is that another social change
has been happening—much more contract based employment and much less compulsory
unionism. So even an expulsion from the AJA is not necessarily an expulsion from the
profession. There are only pockets of dominant union membership throughout the industry,
mainly in metropolitan newspaper journalism, and there is a whole range of, particularly,
television journalists and provincial regional magazine journalists most of whom do not
belong to the AJA.

    CHAIR—The Sydney Morning Herald had an ombudsman for some time, and you have
detailed it here in your paper, but it seems to have come to a quite unfortunate end. As far
as I am aware, that was the only time a newspaper itself created the office of ombudsman.

   Senator CALVERT—That is what Gerald Stone wanted to have, didn’t he? Gerald
Stone suggested that every media outlet should have its own ombudsman.

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    Prof. Pearson—The ombudsman is a trendy term. Well, it is not so trendy now. It has
been bandied around so often and used so often that I would prefer to coin a different term.
It has been used quite effectively in some US newspapers. But, yes, you are right; that is the
only time it was tried in Australia.

    CHAIR—I think you were sitting here when I was exploring the issue of the manage-
ment of the media with Peter Harvey. I was very interested to hear from him about the
degree to which there is pooling and this arrangement by which one journalist and one
cameraman films a person who is in the media spotlight by arrangement and then pools that
footage. I was interested to learn how popular it has become. Unless you know the footage
has been filmed in that way or unless you watch all news, it is very difficult to work out
where pooled footage is actually being used. I could not help thinking that for a very
ordinary individual who may have been charged with drunk driving, for example, you see
them being filmed running from the courthouse trying to hide under their coats or jumpers or
whatever, whereas somebody else is media savvy enough to, with the same television crews,
do a deal where they will stand still and make a statement in return for no answers, and the
footage is pooled. If we are arguing public interest here and the right to know in a self-
regulating environment, actually there are deals being done within the media structure which
may not actually substantiate the claim of press freedom.

    Prof. Pearson—Media management is becoming more and more sophisticated, with
public relations and public affairs management becoming much more of a science. So you
are right. There is a gulf between what I call the media literate and the media illiterate, I
suppose. There is a call for much more media education in schools so that ordinary citizens
have a better knowledge of how to deal with the media and what their rights and obligations
are in dealing with the media. But I can see all sorts of advantages to pooling, just as there
are disadvantages—

   CHAIR—Yes, so can I.

    Prof. Pearson—If you have an intrusion of privacy or someone in a grief situation or a
tragedy of some sort, then it is better that there is only one camera on the scene than a
whole huddle of media around the individual at the time. Also, obviously, if you are pooling
resources, you can cover more news and have the general public served by cameras being in
more places at the one time than otherwise.

    CHAIR—We have heard evidence already that one of the big cathedrals, when well-
known people’s funerals are on, will make available particular predetermined vantage points
for different television channels on the basis that only one cameraman is in each place and
the church itself knows where the best vantage points are and then the footage is pooled so
that the media organisations are able to have effective coverage of a funeral from various
different angles of the church and so on without there being unnecessary intrusion by four
cameramen in each of those vantage spots. Certainly the individual’s family, I am sure,
would appreciate that privacy. But it is unquestionably a fine line between those who have
the ability to know, because of ongoing contact with the media, how to manage it and those
who are famous for five minutes and remember the experience forever.

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   I would just like to read to you something from the FACTS submission and ask you if
you would like to reflect on it. The sentence says:

The media and the public alike frequently have a legitimate interest in the broadcasting of private information or
images, even if in some instances the individual concerned objects.

I think you were here when I put to Peter Harvey a set of circumstances where the wife of a
person who was attracting some media spotlight has put a submission in to this committee
alleging that they were harassed by the media on the basis that they happened to be part of
the family of the person who had attracted attention. We have already had evidence
previously by some journalists who said, ‘Perhaps it was justified in the public interest. This
person’s family members had done certain things to attract attention and it is unfortunate that
the wife was caught up in the spotlight.’

    I just wonder if you talk to your students about this and whether you have any particular
views on how the media can effectively recognise the rights of an individual, whether it is a
child or the partner of a person who is in the spotlight, and how you think any changes
should be made, if indeed there should be changes.

    Prof. Pearson—There is no perfect answer to such a question, and we are continually
balancing our press freedom and the public’s interest to know about these things with
individual rights of privacy and so on. That is what we talk through with students.

    It also comes down to fundamental ethical questions such as the basic ethical question as
to whether the end justifies the means. I am sure you can think of examples where
someone’s private moment—perhaps someone who is not directly involved in the news; they
are just related or a friend of someone in the news—has ongoing public significance, and
there are lessons to learn from that.

    It could be, for example, someone who is being comforted after their child has drowned
in a swimming pool accident. That becomes very difficult because on the one hand this
person in this moment of tragedy and grief deserves their privacy, but on the other hand the
public has a lesson to learn about the fencing of swimming pools. There is an argument that
this will only hit home with them if they see the effect it causes.

    So how do you legislate on that? It is not a black and white issue. The closest we can
come to it is what the AJA has been trying to do unsuccessfully, I think, for the last two or
three years, and that is to refine its ethical code to accommodate those sorts of dilemmas. It
is one thing to refine a code, but it is another thing to actually get that implemented and
enforced. That is where your self-regulation and regulation becomes an issue.

    There is another thing there, and that is the educational aspect to it. It is one thing to
have a code of ethics, but journalists need to understand that and be aware of it and be able
to work through professional scenarios where they would be forced to apply it. If they do not
know about it and they are confronted with a tribunal or a press council or a court, that
could be the first time they actually get to think seriously about their behaviour. In answer to
your question, in class we try to have them work through those sorts of scenarios.

                                     INFORMATION TECHNOLOGIES
IT 416                                  SENATE—Select                 Wednesday, 22 April 1998

    Senator CALVERT—The other night on TV there was a news item regarding some
young girls who were allegedly running a prostitute racket in Queensland, and it actually
showed you a video of those particular young 15-year-old girls coming out of school—the
ones that were charged, the ones that had been involved. It did not mention any names, but it
did not attempt to hide their faces or anything. Where are the ethics in the journalism there?
Some people would have known who those young girls were, and that sort of marks them
for life, doesn’t it?

    I thought that was pretty poor journalism, but no-one seems to have complained about it.
To show these young 15-year-old girls in their school uniforms or other clothes and to say
that they were running a school prostitute gang really puts some pressure on their later lives,
I would have thought.

    Prof. Pearson—I would agree. There were two instances recently that I recall. One was
in the last couple of weeks where a father was having trouble with a daughter. She went on
morning television saying that she was prostituting herself to survive, and she was only 14
or 15. I thought at the time—

   Senator CALVERT—I meant to ask the other people here today, and I forgot about it.

   Senator HARRADINE—Was it Channel Ten?

   Senator CALVERT—I think it was, yes.

    Prof. Pearson—No, it was the Today show, because I remember it was Steve Liebmann
interviewing her. I thought, ‘Why is a child being put through this on national television
when it is something that she may come to regret later?’ It would be interesting to see
whether there was a complaint made about that.

    The other incident occurred a few months ago when there were girls filmed leaving the
court at Southport on the Gold Coast. A photograph was taken and published in the
newspaper, and it was with regard to a prostitution racket that had been running. It turned
out that these girls were high school students on work experience in the courthouse, and I
understand a defamation action is ensuing as a result of this photograph having been

    In the latter case, obviously there is legal recourse available. In the former case, if the
child was actually charged with prostitution or something, it comes under that area of the
law where you cannot name a child offender. But, again, it is another grey area; it is an
ethical area more than a legal one.

    CHAIR—When we raised in previous evidence the issue of children being used on the
picket lines, a journalist who gave evidence at the time said, ‘It was the responsibility of the
parents. If the parents took the children there, it was not for us to determine whether or not
we should film them.’ I can understand that the journalist was taking the view that the
children were small and therefore the parent had responsibility, but if you look at it as the
individual rights of the child you would have to ask: will those children subsequently suffer
when they return to their schools to have been identified as the children of waterside workers

                              INFORMATION TECHNOLOGIES
Wednesday, 22 April 1998                SENATE—Select                                       IT 417

who have been operating on picket lines and how will that affect the children themselves?
The journalist believed that the parent had made the decision and therefore it was appropriate
to either photograph or film them.

   Prof. Pearson—Yes. I can see the journalist’s line of thought there. Certainly it was a
pivotal moment in a very important news story with tremendous public interest. I would
draw the distinction between that situation and one where the journalists had somehow
contrived to have the children there. If that was the situation, then it would be more of a
problem. In our society, sometimes individuals will have to pay a price for the public
knowing about things and the greater public good of social change that may result from that.
This case is a difficult one. Children are on the line, but I am not sure the media coverage
would really greatly affect the children’s lives in the longer term. It is probably the parents
having put them in that situation that people would more understand or relate to.

    CHAIR—Depending on the age of the children and all sorts of peer groups they move in
at school presumably. But if it were to be a 15-year-old girl or boy who then went back to
their school, at that age group it would probably have more effect than perhaps the tiny age

   Prof. Pearson—I can understand that, but if we are going to have a free and democratic
media gross invasions of privacy are a problem. We cannot be so attuned to people’s
sensitivities, otherwise we would never have any news reported.

    Senator HARRADINE—When do you think is the use-by date for the commercial
television industry in Australia?

   Prof. Pearson—Because of the onslaught of the Internet?

   Senator HARRADINE—Yes. In the way that we have it now, you have no doubt given
some thought to it.

    Prof. Pearson—Yes, I have given it some thought, but I do not know. My children use
the Internet a lot. I use it a lot for work, but I do not use it for entertainment, so this is just
anecdotal. It seems to me that the combination of television and the Internet is not necessari-
ly a useful medium in that television is a very passive entertainment medium. You would
choose to go to the lounge room and watch the television. The Internet seems to serve a
different purpose—an entertainment purpose of a different kind, an interactive kind.

    I know from my own family that there would be all sorts of problems if someone wanted
to suddenly start surfing the Internet or doing interactive things on television. Also, the
television is a community activity in the family as opposed to the Internet, which is more of
an individual activity. There is no doubt that television stations will use the Internet more for
their broadcast purposes. Individuals will access the Internet. Newspapers will use video
footage as part of their Internet pages or get a much more active news medium through the
Internet, but I would be reluctant to spell the end of television too soon.

    Senator HARRADINE—There are classifications in existence for computer games at the
present moment which prevent or prohibit the sale and hire of computer games which

                              INFORMATION TECHNOLOGIES
IT 418                                 SENATE—Select                 Wednesday, 22 April 1998

otherwise would be classified as R or X. There is as yet no such acceptance by the Internet
industry that they should apply to the Internet. In that particular case, do you see that it is
necessary to have some form of regulation apply to the Internet transmission of such video

   Prof. Pearson—That becomes a moral question for me as an individual.

    Senator HARRADINE—I may have expressed the question incorrectly. On the one
hand, you cannot get these interactive computer games if they otherwise would be classified
as R or X. They are not available for hire or sale. Therefore, on an individual’s computer
you obviously cannot play them—kids cannot play them, nobody can play them. However,
that is not the case if you happen to pull the plug out and put the phone in and access the
Internet. There are content providers who provide them and there are service providers who
carry them. Isn’t it ambivalent and isn’t it a problem therefore that, on the one hand, you
have these regulations and, on the other hand, there are none?

    Prof. Pearson—I am sure that the problem is no different from other countries which do
not want different political views coming into their countries whereas they have been able to
stop them in the past. Firstly, we come back to a basic social question of whether we want
to continue regulating that kind of access; secondly, if we do, how far our jurisdiction
reaches. If you are not going to stop it at the local Internet provider point, then you run out
of options. Obviously, you cannot control what a content provider in Sweden is producing. It
is more a question for you. Are you suggesting that we police our local Internet providers so
that they must censor such material before it—

     Senator HARRADINE—No, what I am raising is nothing to do with political opinion at
all. These video games are nothing to do with political opinion, I can assure you.

   CHAIR—Quite the opposite.

   Prof. Pearson—The same problem arises: how do we control what is coming across our

    Senator HARRADINE—I am not asking you a technical question. I am asking you the
question as a matter of public policy. Should you have one rule for one and none for the
other? For example, you might have two computers—one that is plugged into the Internet
and one that is not. You cannot get the game to play on this computer, but you can on that
one because you have accessed the Internet.

    Prof. Pearson—As a matter of public policy, I would say that it is better not to have
different rules, but we have different rules in so many other circumstances. We have
different rules as we cross borders of states in Australia. We have different rules as we

   Senator HARRADINE—Not on these. I am trying to concentrate on the computer
games now.

   Prof. Pearson—It is best that we have the same laws.

                             INFORMATION TECHNOLOGIES
Wednesday, 22 April 1998                       SENATE—Select                                                 IT 419

   Senator HARRADINE—This is a very big matter. It is a matter of great concern for
people whose families use the Internet very frequently. I know that for a fact.

    Prof. Pearson—It is my belief that, as a policy issue, we should, as close as possible,
have the same rules across those media. Whether or not they are the rules that exist for the
video or the computer game industry at the moment is another issue.

    Senator HARRADINE—Another issue is whether you have the practical technological
capacity to deal with that situation. Obviously, there are people who say that there is that
technical capacity.

    Prof. Pearson—There is also the question of parental capacity and the whole issue of
raising children with appropriate values and appropriate decision making capabilities when
confronted with such material.

   CHAIR—We have heard some comments so far about the Press Council. Some
comments were made by a previous witness in relation to the television industry complaints
procedure. They said:

The Complaints Procedure is cumbersome, intimidatory and requires huge tenacity and strength of purpose by the
complainant. It does not fulfil its aims of improving the service. It works against the public using the system.

That was said in evidence from the Australian Children’s Television Action Committee. Do
you have any response to those comments?

    Prof. Pearson—I can see how it would be perceived as such. I have grave reservations
about whether a complainant with a legitimate complaint is being done a service through that
complaints mechanism, just as I have reservations about the Press Council’s mechanism. I do
not recall ever seeing an apology on national television news or current affairs, whereas I
have seen many apologies in newspapers.

    I wonder what the remedy is that is being awarded. Is it a comforting letter saying that
counselling procedures are taking place in the television station? I suspect it is. Littlemore,
when running Media Watch, pointed out a number of occasions on which television
journalists were counselled for unethical behaviour but were very soon after working again
in the same kinds of programs and doing the same kinds of tasks. That is why I suggest
some other system where there is a speedier complaints mechanism and it is in some way
funded separately from the organisations themselves. You get that when you hire a lawyer to
act for you, but most people cannot afford a lawyer to act for them.

    CHAIR—One of the issues I am concerned about is the efficiency—not only the
effectiveness, but the efficiency—of the complaints regimes that operate in the media,
whether electronic or print. I was interested this morning to get a response from each of the
commercial television channels that were represented here with FACTS. I asked about the
process they would use if they were planning to run a series for five nights in a current
affairs or news program which had been heavily promoed and which was focused on an
industry—the drug industry, for the sake of the discussion—and, after the first night, there

                                    INFORMATION TECHNOLOGIES
IT 420                                 SENATE—Select                 Wednesday, 22 April 1998

were many complaints to the switchboard, the newsroom and every other telephone in the

    I was concerned to find out whether they had a speedy process which would mean that
they would look again at the series, and whether they would change it—in other words, how
they would respond to complaints that might come in. In talking with people about this
issue, it has been my experience that individuals who have complained about a six-part
series that goes to air weekly, who might complain about the focus in the first part of that
series, have found that the series continues because it has already been put in the can, as
they say, for the ensuing six weeks before a response is received to the complaint that came
in after the first night.

    Each of the channels this morning was very comforting about having a speedy resolution
process if that circumstance were to arise. They said, ‘We might look again at the film and
change it or edit it in some other way.’ I wonder how reassured they could make the
hundreds of people who might have phoned in on the Monday night to complain. Obviously,
they could not ring them all back or write to them all on the Tuesday morning. So it may be
that those people who complained on the Monday night might not know until the Thursday
that the television channel had effectively dealt with their program complaint and that the
program had been altered.

    I am not quite sure how you have a complaints regime in place to deal with an emergen-
cy situation like that, but I have no doubt that they probably arise pretty frequently, because
very often television current affairs will run a series on insurance cheats or welfare cheats or
medical cheats or dole cheats, and the series might be in the can at the start of the week
before anybody has reacted to the program.

    Prof. Pearson—The first problem is with the complaints themselves. You might be
doing an enormous public service by broadcasting something that does attract a large number
of complaints. Just because people complain, it does not mean it is still not in the public
interest and an important issue. I cannot think of a way of remedying that situation unless it
was so overwhelming and there were so many sectors of society complaining that you would
put everything into reverse as a result.

     People see television as an instant medium, but it is a very production intensive medium.
It takes a team of a large number of people all day to produce a half hour of television
news, much of which comes from foreign or separate sources. It is very production intensive.
These sorts of specials that you are talking about have often involved weeks or months of
work and production. I would find it difficult to accept that things could be thrown into
reverse and major changes could be made, short of canning the whole series at that point.

    I find it difficult to think of a situation where, just because of a number of complaints,
you would actually choose to can the program. People can choose not to watch the next
episode. It would only be if the complaints came from a broad sector of society—if members
of parliament of all political persuasions were objecting to it and also people from other
sectors of society—that you would make a change.

                             INFORMATION TECHNOLOGIES
Wednesday, 22 April 1998               SENATE—Select                                     IT 421

    CHAIR—What about, for example, if the next night when the program went to air the
commentator or the host of the program said, ‘We received a number of complaints last
night and these complaints ranged from this to this. We have taken that into account in the
production of tonight’s episode’? The point that one of my colleagues has already made—
and you also said this yourself—is that nobody can recall ever having seen anything on
television that recognised that people had actually complained. There is no public recognition
by the station. It seems that there is feedback from programs and that programs might
recognise that there have been legitimate comments or complaints about that program in a
subsequent similar program.

    Prof. Pearson—Reading the FACTS submission, it seems that 10 per cent of complain-
ants are unhappy enough to then take it to the ABA. You would have the ABA’s data on
how many of those then go through to it and it would have an account of that in its annual
report. I do not see why there cannot be warnings in the second episode which say, ‘Last
night, people complained that this offended their Christian values’—or this offended
whatever in that it was an unnecessary use of children or something—‘and if you are
offended by this, then we advise you not to watch tonight’s program.’

    CHAIR—That is often used. George Negus told us about the warnings they give that
some of the next five minutes of footage might offend people. My concern is to ensure that
the existing complaints regimes are effective and efficient. It does raise the question about a
series of programs which is in the can when it goes to air and how anybody could do
anything that might change anything at all during the process of the programs.

   Prof. Pearson—I suggest it would be very difficult.

   Senator HARRADINE—Could I follow that up. What is the incidence, over the last
year or so, of contracting out to film production organisations a series of half-hour pro-

   Prof. Pearson—I do not have figures on that, but I do know it is quite common that
production houses are doing those documentaries. In fact, production houses are running the
major current affairs productions as well.

   Senator HARRADINE—In respect of the areas referred to by the chair, does a channel
buy a series of them and then show them week after week?

   Prof. Pearson—They may contract the production house to provide the whole service, to
provide a particular current affairs program for a certain period of time, or buy up a single
program or a series—the contracts will vary.

   Senator HARRADINE—The matter which Senator Tierney raised previously was the
program Sex/Life?

    Prof. Pearson—I am not an expert in these contracting arrangements, but I am aware
that that is contracted out to a particular production house.

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   CHAIR—That was revealed in the ABC with the opening program of Elle McFeast
when she had a convicted murderer on and it was a live program. It was revealed in the
ensuing noise that resulted from his appearance that the program was in fact not an ABC
program any more, that it was contracted out.

   Prof. Pearson—As with the Jana Wendt series that is being developed.

    Senator HARRADINE—Do you know of the types of contracts that are drawn between
the channel and the—

   Prof. Pearson—No, it is not something that I have ever researched.

    Senator HARRADINE—It would seem to me, if the channel has actually paid the
production house for the productions which are then canned that they are probably unlikely
to readily seek to change them for the next week of a series—say you have a series of six or
eight programs, as was the case in point, and there are complaints on the first occasion.

    Prof. Pearson—You would think there would be some added cost involved, unless that
is part of their contract. You would think they would be wise to include such a provision in
their contract. Even reclassification can cause enormous problems. You might recall a few
years ago that the new Skippy series was reclassified from a children’s rating to the rating
above that and, because it was not able to be shown in the children’s viewing time, the
whole production was canned at a certain point—it was no longer viable to continue its

    CHAIR—We had the benefit of an hour and a half teleconference with the chairman of
the UK Press Complaints Commission, Lord Wakeham, which was very useful. He also
visited the Sydney Institute. I am not sure whether you are familiar with the speech he
gave—we have a copy of it here. He talked about any law for the protection of personal
privacy only benefiting the wealthy and the thick skinned who did not want their public
affairs or private affairs being dragged through the courts and said that a privacy law would
be the death knell for robust investigative journalism. Would you agree with that?

     Prof. Pearson—Under existing laws, I would agree. Under the existing regulatory
framework, I would agree with that. However, if you did have some quick self-regulatory
mechanism for addressing complaints, it may come within the economic reach of ordinary
citizens to make complaints on privacy grounds.

    I would disagree that only the rich and famous have a right to privacy because, certainly,
on tabloid television, you see tigers exploiting, quite regularly, ordinary people who perhaps
are conducting a misdemeanour or something, but something far short of deserving the
penalty of national television exposure. There was the individual who walked off with the
extra change that he was given at the cash register. He did not know that the secret camera
was there and that it followed him out into the streets. He was then told that he had taken
too much change, and he was made out on national television to be a criminal. This was a
total set-up and exposed on Media Watch. Now there is someone’s privacy being interfered
with. I would certainly think they would have redress under such regulations, yes.

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    CHAIR—That reminds me of that old television program Candid Camera where, back
in the sixties I think it was, hidden cameras used to film people making fools of themselves
with various things like melting ice-creams and so on. These days you can imagine that
would never be allowed to occur. I can remember that program—it was an American-based
program—involved the use of hidden cameras in situations where people had no idea they
were being filmed, let alone forming a series that went internationally.

    Prof. Pearson—I might say that I think current defamation and trespass laws do not
totally cover the privacy ground, but they go a fair way towards that, and the problem is
people having access to those laws being able to fund their actions. So I am not sure you
need new laws on privacy. What you need is to find a mechanism to give people access to
the existing laws which cover the privacy territory.

    CHAIR—I suppose the point I was making is that I do not believe the community would
allow that program to go to air now. There would be so much noise about people’s privacy
being intruded upon.

    Prof. Pearson—I suspect that those candid camera programs were done with the
permission, after the event, of those who were the subjects, and they were not broadcast until
they had given their approval.

    CHAIR—If we can just go back to the Press Council’s complaints mechanism for a
minute, the secretary and I went to a hearing of the complaints committee. They certainly
have a very well-defined process for hearing people’s complaints. I would describe the
process as quite daunting for the individual who, on one of the occasions that we were there
for the particular complaint, was a very private community citizen who happened to feel
very strongly that the Prime Minister’s private holiday destination should not have been
published in his local newspaper. He was not making the complaint in a political sense; he
happened to think that the principle of the Prime Minister’s privacy being invaded was

    The process by which the complaint was dealt with involved him being questioned and
the editor being questioned, and it became very clear that he was not an articulate person
who was up against a very articulate group of community and professional journalists. I
could not help feeling that he was very vulnerable in the sense that he had not had an
opportunity to have any help to put his arguments together, and he was therefore not really
able to argue his points as strongly as perhaps the others around the table were able to do.

    If that process is to continue, I wonder if there are any ways in which you think it could
be strengthened to help the individual, still working within that framework, to present
perhaps a more effective case or to argue their case in a way that at least makes their
argument equal with those that they are appearing before and with—that is, the editor of a
newspaper or his representative.

   Prof. Pearson—It comes back to what I was saying about needing a fast and effective
remedy, or at least some sort of complaints centre that can refer complaints on. If the person
wants to complain about an intrusion of someone else’s privacy, obviously they are casting
themselves into that role. It is a role of their own choice that they are doing that. But a

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referral agency would say to them something like, ‘Look, the New South Wales privacy
charter would be very interested to hear this complaint of yours, so why don’t you take it to
them and have them raise it with the Press Council? They have barristers who work full time
raising these sorts of issues. They probably have not thought of it themselves. So why don’t
you have them raise it with the Press Council on your behalf?’

    So such a complaints centre would serve that purpose. It would be a much more effective
complaint. You would have these articulate representatives there arguing against the editor,
making them defend their position. I would suggest, for such a complaint, the Press Council
is quite a reasonable vehicle because it is not somewhere where the individual’s rights are
being affected. They are going there on principle. They are taking on the principle of press

    CHAIR—Yes. That is an interesting observation, using a third party mechanism, because
one of the other complaints on the agenda that they had had been put forward by a barrister
who, in the event of the hearing, had not been able to actually attend so the complaint was
then heard in his absence. That led me to wonder how many people do not actually attend in
the end because, in some cases, months go by before the complaint is actually heard anyway,
for all sorts of reasons. Perhaps if these complaints regimes were better understood in a
public sense people might then understand the need for more assistance.

     But I truly wonder how many people in the general community even know that com-
plaints regimes exist. Perhaps the Press Council is better able to inform readers in the sense
that they have told us that they go and give country lectures and so on, and that there are
little ads in the papers from time to time. But I still wonder how many people in the general
community increasingly feel resentful about the media, just in the general sense of conversa-

    In fact, the Clemenger Advertising Agency publishes a list of general concerns of people
in the community, and they have published it every 10 years for the last three decades. In
the current issue that was published last August, I believe it was, media intrusions and media
privacy were among the first six or eight issues. Ten years ago they did not rate a mention at
any focus level at all. So it seems as if people are increasingly disenchanted with the rights
and privacy of individuals but perhaps do not know how to deal with it.

    Prof. Pearson—I agree, and I think that is why you need a central clearinghouse for
such complaints. You need all of these industry organisations to fund a referral centre which
is well publicised so that these individuals, this large majority of people who have concerns
about the media, know where to go. That can be publicised in the schools as well as be part
of a media literacy campaign, and then perhaps the Press Council thing becomes more
effective if people know that they are going to the right place with their complaint.

    One issue is how you know whether you are complaining against the publication or the
journalist. How do you complain against a freelance journalist who may not yet have
published the work? That is not a Press Council issue; it is an AJA issue. What if they are
not a member of the AJA? It is nobody’s issue unless they have actually broken the law and
there is some legal remedy; in which case, how do you afford it? Such a referral centre
would be able to talk through all of this and identify the individual or organisation to which

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you need to address your complaint and tell you whether you have a good legal case, and
perhaps even be able to back you in such a case in return for some of the damages that are

   Senator CALVERT—In your book, The Journalist’s Guide to Media Law, in the section
Regulation tips for journalists, you said:

. . . get familiar with your code of ethics and the codes of conduct and legislation which apply to your particular

How serious do you think they are? Do you really think journos, as a whole, do bone up on
their ethics and codes of conduct? Or do you think some are more—

    Prof. Pearson—I think there is a distinction between the existing group of working
journalists who come from a whole range of backgrounds and the new breed who mainly
come through tertiary journalism programs because it is very much a part of tertiary
journalism courses that there is an ethics subject where they are put through these scenarios
and so on. So you are getting a more ethics literate group of journalists coming through
whereas the old hands may not have been.

    Senator HARRADINE—What about Peter Harvey?

   Prof. Pearson—I do not know Peter’s own background, but he seems quite an articulate
and intelligent individual. I am sure he has been aware of ethical issues.

    Senator CALVERT—He has his own set of standards, I would say.

   CHAIR—I suspect that, in the days when he trained to be a journalist, he simply did a
cadetship on a newspaper. I suspect that as part of that cadetship training he may have been
focused on issues such as ethics.

    Prof. Pearson—Yes, but cadetship training varied markedly across groups—some had no
cadetship or little cadetship training at all. The focus was much more on just basic practical
writing and research skills rather than on ethical issues. It is a much more sophisticated
approach to education now and hopefully that is paying dividends. They still make mistakes.

   Senator CALVERT—I am glad we got that on the record. I did not realise that, but I do

    CHAIR—Thank you very much indeed, Professor Pearson. Thank you for supplying this
information. It is very useful. I enjoyed reading it. We appreciate you coming down from

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[3.48 p.m.]

MARZBANI, Mr Ramin, Principal, www.consult Pty Ltd, 2 Bridge Street, Sydney, New
South Wales 2000

    CHAIR—I welcome Mr Ramin Marzbani from www.consult. The committee prefers all
evidence to be given in public, but you may at any time request that your evidence, part of
your evidence or answers to specific questions be given in camera, which means in private,
and the committee will consider any such request. As you have no written submission, I now
invite you to speak to the committee. At the conclusion of your remarks we will ask you

    Mr Marzbani—That is perfect. There is a number of issues that we would like to raise
for consideration by the committee with regards to the Internet and the whole concept of
self-regulation, particularly in the area of privacy in general. Firstly, I guess you have
probably heard this a million times, but it is likely that the problems and issues that we have
associated with privacy are not just associated with information technology but they are
associated primarily with procedural and educational issues of how information is handled as
well as accidents.

    Information technologies generally tend to increase the speed of replication and of
removal. They improve the ability to match disparate pieces of information that may deal
with personal or confidential data. They tend to increase the ability to archive and retrieve
the data components and so on. The evolution of the Internet into a reasonably large-scale
communication and transaction environments creates additional opportunities for the
collection of data and for the association of personal data with behavioural data and it
increases matching of data across different databases. Telecommunications costs being lower
actually allow faster and cheaper transmission of data. Finally, we also have the hacking or
unlawful removal, replication or alteration of data affecting personal data and private data.
That is the first point.

    The second point we would like to make is that, with regards to industry codes of
conduct, it is obvious that different industries are better suited to the application of self-
regulation. Whilst this does not imply that regulation may be better suited for certain
industries, a brief analysis of the current Internet industry and codes may shed some insight.
We put forward that there is currently no such thing as the Internet industry. The Internet
itself and the various applications within the Internet touch nearly every existing industry,
but do so in different ways. There is, however, a clearly defined Internet service provision or
Internet access provision industry in Australia, currently consisting of some 632 organisa-
tions, which is actually a very large number that keeps increasing. Most of them are very
small organisations.

    Very few of Internet service providers are represented by the Internet Industry Associa-
tion, the IIA, which was previously known as the Internet Industry Association of Australia,
INTIA. I would like to state that we are members of both of these. We were one of the first
members of the Internet Industry Association, which subsequently merged with the Austral-
ian Internet Alliance, which may or may not have been formally set up as an association.
This is relevant because, although the IIA represents most but not all of the larger Internet

                             INFORMATION TECHNOLOGIES
Wednesday, 22 April 1998               SENATE—Select                                     IT 427

service providers, it really does not represent any or many of the smaller providers out there
at all. It is not a representative industry body even for Internet service providers.

    The IIA has extended its political reach significantly over the past year and is now
looking to potentially represent a broader range of constituents, although it has been on
many occasions criticised for being slow, for being a closed shop, for not communicating
with its members and for carrying out too many government discussions without soliciting
input from, or providing feedback to, its members. It is a little like a very small club that
started. A few people have been there and they are basically going to be perpetually there
more or less.

    So the issue becomes one of which industry association should it be for a code of
conduct and, if we have a code of conduct, which issues should it cover. The current code of
conduct within the IIA that has been put forward—and it has now basically been two years
in the development, which actually tells you something about the organisation itself—does
not really cater to business issues and business privacy. For example, it is my understanding
of the current code of conduct that I as a business get no protection. So people could be
looking at my Internet and e-mail without my having any protection under the proposed code
of conduct. I put to you that that is a deficiency.

    Would this approach effectively force companies to become members of one particular
industry association? If basically we go forward and we say, ‘This is the industry code and
everyone has to be a member’, does that mean that we have to have 600 of these Internet
service providers, who have chosen not to become members of the IIA, become members? I
put to you that that may or may not be appropriate and that may or may not reflect the
sentiments within the marketplace.

    Thirdly, with regards to concerns over privacy and the Internet, our last research report
was based on 10,500 Australian Internet users—this is not households, this is actual users—
in November to December 1997. What it indicated was that concerns over privacy have
always been a major issue. Thirteen per cent of Internet users out there in Australia today
have said that privacy is their biggest issue. This is a little bit behind response times at 21
per cent and the cost of Internet access, also around 21 per cent. Those are the first two

    Security of financial transactions and privacy are pretty much on par. Security of
financial transactions sits at 16 per cent. Things like junk e-mail are a much smaller concern
at about six per cent. Concern with indecent material is regarded as an even smaller concern
at about four per cent. So, when you ask them, ‘What are your concerns?’, they are saying it
is response times, it is the cost of Internet access, it is privacy and security. Security
certainly has always been in there. In fact, it is one of the top three or four concerns for
enterprises as well.

    We are effectively going through the same issues we went through with the introduction
of call monitoring on telephones, where management chooses to monitor telephone calls, for
example, to see that people are not abusing the system. I would put to you that there is
currently a significant amount of abuse of corporate resources with the use of Internet for e-
mail and other types of activity. Privacy protection is likely to become an even greater

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concern for the more experienced users as information about them and what they have done
becomes more widely distributed.

    Finally, with regard to views on censorship from the same survey, seven per cent of
Internet users said that they felt the government should be censoring the Internet, but the
majority, 63 per cent, believe that parents should be responsible for the monitoring and
management of their children’s access to the Internet, and 26 per cent believe that no-one
should censor the Internet. Also, three per cent did not care about the issue at all. There is
currently a great deal of danger associated with government censorship of the Internet,
because the nature of the technologies is changing rapidly. Whilst it may appear simple to
say that we will put in place the same laws that protect and provide standards for the
community in other types of content, it may actually be unworkable because of the techno-
logical issues associated with this.

    There is also some concern over various suppliers of blocking software with hidden
political and social agendas who may actually be blocking sites other than, let us say,
sexually explicit sites. They may be political sites, they may be human rights sites and so on.
Also, there are currently several suppliers of commercial services who are competing in the
market place for ‘safe children’s access’, who continue to innovate and develop services.
They are competing in the marketplace for the attention of consumers and parents for the
provision of these services. It is possible that government intervention may in fact hinder the
development of competitive services which different parents may associate with or want to
be associated with in terms of values and blocking. That is my written statement, so I am
open to questions.

    Senator HARRADINE—I was interested in your last comments. Do you think public
policy should be determined by the business users of Internet?

   Mr Marzbani—Policy with regard to?

   Senator HARRADINE—With regard to the question of extremely violent or porno-
graphic material coming across the Internet. Do you think that should be determined by
business interests?

   Mr Marzbani—No.

   Senator HARRADINE—It is business interests, isn’t it, that are the content providers?

    Mr Marzbani—Yes. I would put to you that a lot of the content providers are commer-
cial business interests.

    Senator HARRADINE—And the server that you were talking about included business

    Mr Marzbani—This was actually a survey of Internet users at large. It was people
primarily accessing the Internet from home as consumers not as business people or as
representatives of content providers.

                             INFORMATION TECHNOLOGIES
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   Senator HARRADINE—How many of those had actually found that children were
accessing material of the nature that I described?

    Mr Marzbani—We did not ask that question. However, we can give you the age profile
of the people who answered the survey. The bulk of the users were aged around 30. The
median age was around 35 and the bulk of them were between 20 and 40 years of age. They
were a little older than you would have expected. However, that is a representation of
current Internet users in Australia.

    Senator HARRADINE—Does your organisation maintain there should be no regulation
which covers the Internet so far as material of the nature that I have mentioned is con-

    Mr Marzbani—There are two things here. One was what our research found, and our
research is highly independent. We provide about 102 different streams of research out there.
We are not affiliated with any content providers or other businesses out there.

    In the issue of policy, with regard to the censorship of material on the Internet, what we
have put forward as an organisation is that practically speaking the technologies are going to
continue to change. It will be very difficult to put in place a technologically robust frame-
work for censorship. We also have a survey of people who are not using the Internet, and
the bulk of them are saying that parents should be responsible for this activity.

    We also carried out a survey amongst the non-users of the Internet in June of last year
and we are carrying one out again in June of this year. Of 1,400 households, less than 15 per
cent believed that the government should be censoring the Internet for them. The bulk of
them, which is 85 per cent, believed that either the parent should censor or no-one should
censor or they did not care enough about the issue to comment. All I am putting forward is
the views that we have found from research. This is research that is primarily aimed at
understanding other types of behaviour, such as shopping amongst Internet users, their
favourite web sites, their age, their income and so on. It is actually not targeted research at
determining this issue, but we did ask these questions.

   Senator HARRADINE—I imagine a large number of Internet users would be probably
against the establishment of some technological response to the avoidance of sales tax, for
example, on e-commerce.

   Mr Marzbani—We did not ask that question, so I cannot really comment.

   Senator HARRADINE—That is a type of censorship, is it not?

     Mr Marzbani—Let me tell you what I do know. There are a lot of people who buy
books on the Internet not because they want to avoid paying a higher price in Australia but
because they get a broader selection of books and they find it more convenient to order from
overseas, even though in many cases it is more expensive to order from overseas. I also
know that there are a lot of people who order CD music over the Internet primarily because
it is cheaper to do that than to buy it locally.

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   Senator HARRADINE—Do you believe that trend will continue?

   Mr Marzbani—Yes, I believe that trend will continue.

   Senator HARRADINE—Have you made any submission to the Senate Legal and
Constitutional Legislation Committee that is considering the question of CDs?

   Mr Marzbani—We did not make any submissions to that committee. However, we did
make a submission to the Joint Committee of Public Accounts and Audit.

   Senator HARRADINE—On the taxation matter.

    Mr Marzbani—Correct. We provided them with some feedback. The numbers are still
very small. All in all, last calendar year, there were only 500,000 transactions carried out on-
line by Australians, representing about $55 million worth of goods.

   Senator QUIRKE—It would make a GST rather less than attractive, would it not?

   Mr Marzbani—It would depend on how it was implemented and where it was charged.
Whilst the Internet does provide for some leakage, you would probably find that the Tax
Office would regard that leakage—and I am not speaking on their behalf but I have heard
comments to this effect—to be relatively small in terms of people ordering products from

    Senator HARRADINE—You mentioned that the problem with a technological response
is that it could affect certain sites which contain important human rights information and
political opinion. How would that happen?

    Mr Marzbani—For example, there is a documented case of one of Cyber Patrol or
Nanny Sitter or whatever—one of the blocking products in the US—which does block out a
large quantity of political sites in terms of the American way of doing it, democratic sites. It
is a very pro-republican type of software. If schools and other organisations were to
implement that software that could always have some impact on the educational processes of
people trying to use the Internet. I think we would regard that as being a bad thing.

    Senator HARRADINE—Even though material such as hard-core porn or extremely
violent material from a particular source was thereby made available to persons in education-
al institutions, schools and the home environment?

    Mr Marzbani—I would put to you that, today, there is no software that completely
blocks out the content that you may describe as undesirable. It may block out some or a lot
of it but it will not block all of it out. I would also put to you that blocking software does
not in and of itself—and I do not mean to sound cynical—create this undesirable product,
content, material, photograph or whatever it may be. This product exists out there both on
the Internet and off the Internet. In fact, nearly all of this product is created off the Internet
and also as a secondary application posted onto the Internet.

                              INFORMATION TECHNOLOGIES
Wednesday, 22 April 1998              SENATE—Select                                     IT 431

    All we are saying is that you can have a technological response; it will not be perfect
and it will not be complete. It may have some impact. But you have to be careful to make
sure you are not blocking out other things and you have to understand that it will not be
complete. We have an office in Singapore. Singapore has had a reasonably strong policy for
a long time with regard to censorship and I can tell you for sure that it does not work. It is
very possible to get access to pornographic material from the Internet in Singapore. In fact,
the policy only extends to consumers and not to businesses looking to connect themselves to
the Internet. Even then, access to this content is there all the time.

     Senator HARRADINE—There is a matter of public policy though, is there not, for
example for computer games? Computer games are unavailable for sale or hire in Australia
if they are the equivalent of R or X material, which are the extremes of violence and hard-
core porn. They are unavailable for use on a computer, but if you go into the Internet they
are available there. Is there not some discrepancy in the area of public policy there if some
attempt is not made to deal with that new challenge, as it were?

   Mr Marzbani—I will put to you again two things. One is in terms of ordering of the
product. You can certainly order them over the Internet, just as you could order them from
mail order or catalogues.

   Senator HARRADINE—You can download them.

   Mr Marzbani—But you can also purchase them while you are overseas on a trip or you
can telephone your friends and ask them to send it over. I am not sure, and I guess this is
my question: can you buy similar product in the Australian Capital Territory or in the
Northern Territory?

    Senator HARRADINE—No. It is quite certain that this material is not available for
hire. We are talking about interactive computer games.

    Mr Marzbani—Would pornographic and X-rated videos be available for purchase from
the Australian Capital Territory?

   Senator HARRADINE—I am not talking about videos I am talking about computer
games. That is why I used the example.

    Mr Marzbani—You were probing for a consistency. My understanding is yes, there are
computer games that are pornographic in nature which can be accessed over the Internet. At
the same time, most of these things are extremely slow and most users would probably
regard them as a waste of time. Do they exist? Yes, but in the same way I am sure that they
exist in CD format in the black market right here in Sydney. In terms of availability, the real
issue is you are not fundamentally changing the availability of content or people’s access to
it. You might be changing the degree of ease with which someone could see this or order it,
but I think that is about all. You can always order seemingly benign catalogues that would
contain some of these products you just mentioned amongst the 10,000 titles they may have,
and you can write away for magazines and newspapers and similarly get access to them.
This issue is very difficult.

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    I go back to the main point we were trying to make, that a technological response is
unlikely to be completely successful and will be open to ridicule by people saying this has
not worked. It is too early right now for a technological response because the standards and
formats and everything is changing as we speak. This is one of the most rapidly changing
industries we have ever seen. What we were pointing out was that the danger with the timing
of a decision is tough. We were pointing out that there is no real industry association that is
representing the Internet industry because the Internet industry fundamentally does not exist.
Even within the ISP industry, the industry association is going to have a tough time
convincing 600 ISPs that it is representing their interests because it is not.

    Senator HARRADINE—So you are not likely to get a voluntary code of practice from
the Internet industry?

    Mr Marzbani—No. I will put one thing forward to you. At the Joint Committee of
Public Accounts the issue was raised. One of the largest on-line publishers in Australia,
which is Village Roadshow—again, I am not speaking on their behalf, merely commenting
on things I have heard them say—has not been involved in any of the discussions in relation
to the tagging or the classification of content. They are one of the absolute largest organisa-
tions out there doing this stuff today. The process that we have gone through within the
‘industry’ has been highly flawed, has not been representative. It has been exclusionary and,
as such, it is destined to fail as we move forward to try and build consensus.

    The only way it has a chance of coming near to success is if people are bullied into it
through joining an industry association through the threat of, ‘Join this or you will be sued’
type of thing, or ‘You will not be covered by any of this legislation.’ That may have been
the intent of the legislation—I am not sure—but I do not think it was the intent of the
legislation to promote one industry association over another. The publishers industry
association has a lot of work to do because fundamentally they are Australian publishers.
The Internet service provider industry also has a lot of work to do.

   Senator CALVERT—I think you indicated that it is not possible to regulate the
industry, so anything has to be done by self-regulation?

    Mr Marzbani—I believe that, with the rapid change in technology today, it will have to
be reputational effects and the larger industry players or the more reputable industry players
trying to actually stake out their positions that will drive most of the activity. It is far too
early for regulation in this arena.

    Senator CALVERT—With the rapid increase in technology, do you believe it will be
possible to have censoring the Internet? In other words, if people are over a certain age, will
they be able to access programs by using PIN numbers and the like?

    Mr Marzbani—It will never be perfect. However, we have heard of certain companies
introducing services which are replicas or components of the Internet or the World Wide
Web and which can be accessed. Almost everything within that network is known to certain
people and has passed a certain degree of certification. The only real way to block it is to
actually block universal access.

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   Senator CALVERT—So you cannot block specific areas?

    Mr Marzbani—You can block specific areas by blocking certain IP addresses or certain
telephone numbers, but you can always call another number and be forwarded to another
number. Telephone numbers can change very quickly on the Internet.

     Senator CALVERT—Do you think there will be self-regulation or, as the Chair called
it, icons where people will have a standard? To be a reputable provider of services, they
would have this particular icon or stamp that appears on their programs that guarantees to
you, when you are using it, that it is of high quality?

   CHAIR—That it is family friendly.

    Mr Marzbani—I am sure there will be several versions of that, just as there are in terms
of electronic commerce. There are trustee and e-trust types of marks. If you are a young,
under-age person looking for violent pornographic material, you may not be interested in any
programs that have that mark. If you have your parents looking over your shoulder, however,
and you are really leaving the censorship up to them, they might be able to say, ‘As long as
every page has one of these marks, I am happy. You can keep looking.’

    CHAIR—But my point is that that would be a marketing tool of a service provider. A
service provider would advertise their wares at a computer shop, say, and the parents would
have that software loaded onto their system so that only the programs that that particular
service provider make available would be available to that family’s database.

    Mr Marzbani—That is correct. That is available today. For example, there are service
providers in Western Australia that aggressively market that service. That is different to the
question that Senator Harradine asked earlier. I understood it to be slightly different. I think
it will come up to the service providers who are going to compete with each other and
companies that develop blocking software and technologies and marking systems and rating
systems to compete with each other. I think there is still a lot of competition to be had until
we get good solutions being developed and being commercialised for use.

   CHAIR—How far away do you think that is?

   Mr Marzbani—I think we are about two years away from that.

   Senator CALVERT—Currently, there is no way that anybody could censor Internet

    Mr Marzbani—There is. Currently, there are at least 12 manufacturers of blocking
software that can be installed on a personal computer on a browser that will block the
common pornographic sites. That is available today. For example, they may be blocking
Playboy in the US, but they are not blocking the new Playboy site in Hungary, or they may
not be blocking the Playboy mirror site created by a 16-year-old, a 35-year-old or an 80-
year-old somewhere else.

   Senator CALVERT—Somebody might be blocking how to make a bomb.

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   Mr Marzbani—Correct.

   CHAIR—In America, but not in Great Britain.

   Mr Marzbani—Yes.

   CHAIR—It all moves so fast, doesn’t it?

    Mr Marzbani—Yes. Trying to coordinate this across boundaries and across different
jurisdictions is, again, a very difficult issue. I understand that the United States Constitution
is very active in terms of freedom of speech, although there is no similar provision in the
Australian Constitution. It becomes a very tough call if, at the end of the day, you have to
go along with what is happening in the US which is the centre of development of all
technologies and the bulk of the content.

    Senator CALVERT—In the survey that you did, what was the major concern that

    Mr Marzbani—The major concerns were actually response times and the cost of
Internet access. What we are finding is that, if you break out the different subgroups and you
segment the database to look at different groups, there are several groups. We have people,
for example, who have not done any on-line shopping and thought they were unlikely to do
so. Privacy was almost the No. 1 concern for them, at about 20 per cent. People who had
done on-line shopping several times were still concerned about privacy, but it was not as big
a deal because they were more experienced and they had done more of that.

    Internet users are still saying this is too slow and it is too expensive. One almost
automatic safeguard is that, if parents see the telephone bills and the Internet bills are very
high, then obviously they know that something is going on. If they see their kids awake at 4
o’clock in the morning they might also figure out there is something going on.

   There is no question that, for example, adolescent males will use the Internet to search
pornography. Pornography is an extremely popular type of content. However, I will put to
you that it is actually more content with 35-year-olds than it is with 15-year-olds today.
There are more 35-year-olds looking at pornography on the Internet today than 15-year-olds.
That is a fact.

   Senator HARRADINE—How do you know?

   Mr Marzbani—We know that from the research we do.

   Senator HARRADINE—Have you got the details of that research?

   Mr Marzbani—Yes, I do. I have in fact brought some of that with me today.

   Senator HARRADINE—I would be grateful for that. Thank you.

   CHAIR—Perhaps if you could make that available to the committee.

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Wednesday, 22 April 1998               SENATE—Select                                     IT 435

    Mr Marzbani—I would be happy to make it available to the committee as long as it is
not published without our permission, if that if okay.

   CHAIR—That would be acceptable to the committee.

    Senator CALVERT—May I ask you how you collect that information. Do you collect
that information by survey?

   Mr Marzbani—Yes.

    Senator CALVERT—How do you know they are telling the truth? Are 15-year-olds
likely to say that they access the Internet for pornography? I would not have thought so.

     Mr Marzbani—True. I will give you the full answer. We do 40 different streams of
research. One of them is the on-line survey, and we do that in Australia, New Zealand,
Singapore, Malaysia, Thailand and Indonesia, and China will be launched soon as well. We
have been doing it in Australia for 2½ years. We get very large numbers of responses and
then we check for a consistency within the answers that we get. There are questions we ask
in slightly different ways. There are questions that we ask so we can cross-check with the
electronic information we get about the user. Typically in the last survey, as an example,
from 12,000-odd responses we only ended up with 10,500 what we considered clean
responses. These are people who have been consistent across the survey. We ask a broad
range of questions. We make it easy for people to answer and we guarantee their confiden-
tiality and privacy totally. We have developed a reputation in Australia for doing this
objective research. We have the support of more than 100 Internet service providers who
actually advertise our survey through banners on their pages as well as every single major
on-line newspaper, including all the Fairfax, News, APN, Village and Yahoo publications out
there—all the different mastheads.

    Senator CALVERT—So your survey would show you what the most popular materials
are on the Internet.

    Mr Marzbani—It would show you a number of things, including the most popular
material. However, to follow on from that, because we do a broad range of other Internet
related research, we can tell you—I would probably like this to be off the record, if that is

   CHAIR—Is it the wish of the committee that we take this answer as a private comment?
That being the case, we will go into camera for this particular comment.

   Evidence was then taken in camera, but later resumed in public—

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IT 436                               SENATE—Select                Wednesday, 22 April 1998

   CHAIR—We will now return to the public hearing. Are there any other questions?

   Senator QUIRKE—Yes, I have a couple. What do you think the take-up rate is going to
be over the next four to five years of the Internet?

    Mr Marzbani—I can tell you what it is right now. It has gone from around 12 per cent
per month a year-and-a-half ago to around two to three per cent per month in the number of
users from home. Business take-up is growing a little faster—three to four per cent per
month. However the content, or the bandwidth being downloaded, is growing at a much
more rapid rate—between 20 and 30 per cent a month. So even though the percentage of
users coming on is not as high, the amount of traffic that people are demanding and the
amount of pages that keep coming down are growing much faster.

   Senator QUIRKE—What is the total number now?

    Mr Marzbani—It is over 1.6 million. It breaks out roughly as follows: there are about
600,000 academic users out there of which about 100,000 have dial-up access from home;
there are about 800,000 dial-up users in total of which 400,000 are home consumers, about
300,000 are businesses and 100,000 are academic students; and the rest have permanent
connections from work. This excludes people with email access to the Internet or the ability
to participate in newsgroups and other types of email related communications with the Web.

    CHAIR—Thank you very much, Mr Marzbani. Your evidence has been very helpful and
very useful, and we appreciate very much the time you have taken to come and talk so
frankly with us today.

   Mr Marzbani—I have for the committee copies of what I said, a diskette of what I said,
and a copy of the Internet user report for Internet users in Australia.

   CHAIR—Thank you very much indeed.

                            Committee adjourned at 4.30 p.m.

                            INFORMATION TECHNOLOGIES

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