Scanners

The European Union has adopted new rules on the use of full-body scanners at airports and other transport nodes.

The rules have been characterised as allowing "airports and Member States that wish to use security scanners for the screening of passengers to do so under strict operational and technical conditions".

Until now the use of security scanners has been done under a patchwork of different national operational procedures and standards and in a limited way. As a common EU-wide framework, the new legislation legally allows Member States and airports to replace current security systems with security scanners. It also ensures the uniform application of security rules at all airports and provides strict and mandatory safeguards to ensure compliance with fundamental rights and the protection of health.

Member States and airports do not have an obligation to deploy security scanners, but if they decide to use them, they will have to comply with the operational conditions and performance standards set at European level.

The EU Commissioner responsible for transport commented that -

Security scanners are not a panacea but they do offer a real possibility to reinforce passenger security. Security scanners are a valuable alternative to existing screening methods and are very efficient in detecting both metallic and non-metallic objects. It is still for each Member State or airport to decide whether or not to deploy security scanners, but these new rules ensure that where this new technology is used it will be covered by EU wide standards on detection capability as well as strict safeguards to protect health and fundamental rights. Experience to date shows that passengers and staff generally see security scanners as a convenient method of screening.

The announcement coincides with news that the national government in Australia will extend use of the scanners to airports other than those covered in the initial trial under the Customs Amendment (Serious Drugs Detection) Act 2011 (Cth).

The European Commission comments that -

Under the new EU legislation the use of security scanners is only allowed in accordance with minimum conditions such as for example that: security scanners shall not store, retain, copy, print or retrieve images; any unauthorised access and use of the image is prohibited and shall be prevented; the human reviewer analysing the image shall be in a separate location and the image shall not be linked to the screened person and others. Passengers must be informed about conditions under which the security scanner control takes place. In addition, passengers are given the right to opt out from a control with scanners and be subject to an alternative method of screening.

By laying down specific operational conditions and by providing passengers with the possibility of opting out, the legislation safeguards fundamental rights and the principles recognised in particular by the Charter of Fundamental Rights of the European Union.

In order not to risk jeopardising citizens' health and safety, only security scanners which do not use X-ray technology are added to the list of authorised methods for passenger screening at EU airports. All other technologies, such as that used for mobiles phones and others, can be used provided that they comply with EU security standards.

In April the European Parliament's Committee on Civil Liberties, Justice & Home Affairs in commenting on the proposed regulation -

1. Emphasises the importance of the fight against terrorism and organised crime, which constitute threats to the security of the European Union, as already identified in the Stockholm Programme, and to that end supports in this only the use of security measures aimed at the prevention of terrorist incidents that are prescribed by law, effective, necessary in a free and open democratic society, proportionate to the aim pursued and fully respect the EU Charter of Fundamental Rights and the European Convention on Human Rights (ECHR); recalls that the confidence of citizens in their institutions is essential and that there must therefore be a fair balance between the need to ensure security and a guarantee of fundamental rights and freedoms;

2. Stresses in that regard that any counterterrorism measure should be in full accordance with the fundamental rights and obligations of the European Union, which are necessary in a democratic society, and must be proportionate, strictly necessary, prescribed by law and thus delimited within the specific aim it wishes to achieve;

3. Recalls that the use of body scanners must comply with Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data(1);

4. Stresses that the objectives and the expected value of the use of body scanners must be clearly defined;

5. Urges in this regard that the aim to be achieved should be precisely and duly specified; calls for an extensive technical assessment to be carried out regarding the usefulness of body scanners; urges furthermore that the use of body scanners be prohibited in the event of any ambiguous or non-positive assessment;

6. Notes that only few Member States have carried out trials of body scanners(2) and many of these have abandoned body scanners subsequently, due to the high costs, delays and inefficacy(3), while most of the Member States have not deployed body scanners or have opposed them or affirmed that they do not intend to buy, deploy and use them;

7. Notes that, regardless of the inclusion of body scanners in the list of methods of screening allowed, those Member States already using body scanners are bound to ensure that citizens’ fundamental rights enshrined in the ECHR and in the Charter of Fundamental Rights are respected, protected and promoted, notably the right to privacy and to health, as furthermore requested by Parliament;

8. Highlights that those Member States that have used body scanners have excluded some categories of vulnerable persons, such as children, pregnant women, elderly people and persons with disabilities or with implanted medical devices and workers who are frequently exposed to radiation, and that common rules in this field must be applied at EU level when Member States deploy and use body scanners;

9. Believes that the comitology procedure in the aviation security sector, at least for measures having an impact on citizens’ rights, is inappropriate and calls for Parliament to be fully involved through ‘codecision’;

10. Points out that the decision to install security scanners at airports falls within the sphere of competence of the Member States, and in this context they must meet the minimum common standards and requirements set by the European Union;

11. Considers in that regard that the decision to use body scanners in airports should not be mandatory for Member States; stresses that if a Member State chooses to deploy body scanners in its airports, those body scanners should meet the minimum standards and requirements set at EU level;

12. Underlines that those Member States which decide to use body scanners should be able, under the principle of subsidiarity, to apply more rigid standards than those defined in the European legislation on the protection of citizens and their personal data;

13. Calls for every body scanner to meet a minimum set of technical requirements before it can be placed on a permissible screening methods list, and considers that these requirements should inter alia ensure the prevention of any possible health risk to passengers and staff members, including long-term risks; calls in this regard, taking into account the current state of technology, for the use of those scanners which use ionising radiation, for example x-rays, which can have a cumulative effect, to be restricted and calls for further research into their effects;

14. Calls in that regard on the Member States to periodically monitor the long-term effects of exposure to security scanners, taking new scientific developments into account, and to check that the equipment has been correctly installed and is properly used and operated;

15. Insists furthermore that body scanners should only be equipped with technology that does not enable any possibility of rendering full body images but merely standardised gender-neutral ‘stick figure’ images that are fully anonymised, and that any data processing or data storage must not be possible;

16. Calls on the Commission to impose deterrent sanctions for unauthorised recording or distribution of security screening images;

17. Calls for periodic technical controls to be carried out by a competent organisation to review the devices’ integrity and their compliance with the conditions laid down in paragraphs 13 and 15;

18. Stresses that every passenger and staff member has the right to refuse a body scan, without the obligation to give any explanation, and the right to request a standard security check, with full respect for the rights and dignity of that person; calls in this regard for all security personnel to receive proper and extensive training; insists that the restriction of use of those scanners which use ionising radiation, for example x-rays, would avoid the need to lay down explicit exceptions for vulnerable persons such as pregnant women, children, handicapped people or people with medical conditions that would render such checks inappropriate;

19. Stresses that refusal to undergo a body scan should not ipso facto give rise to any suspicion of the passenger or staff member concerned or additional burdens, including exhaustive searches or delays, and that, in the procedure before being submitted to a body scan or related to the refusal of a body scan, any form of profiling based on, for example, sex, race, colour, ethnicity, national origin, genetic features, language, religion or belief is unacceptable;

20. Calls for passengers and staff members to receive prior, proper and comprehensive information about the body scanner and the procedure of being checked by it, including their right to refuse to go through a body scanner and their right to complain and seek effective legal redress in case of irregularities related to the body scan or their refusal to be submitted to it and the subsequent standard security check; stresses that information to the passengers and staff members about the body scanner and the procedure of being checked by it should be provided not only at the time of the booking by the airline or on the airport website but also at the screenings; stresses the need for proper training of security personnel in this regard;

21. Stresses that any proposal to allow the deployment and use of body scanners as a permissible screening method should be extensively justified in an impact assessment covering, inter alia, the fundamental rights aspect of body scanners, the proportionality and necessity, taking into account the added value for the fight against terrorism, the costs incurred as a result of the acquisition, installation and operation of body scanners and the possible health risks to passengers and staff members, in particular vulnerable passengers and staff members, also having regard to the opinions of the European Union, international and national human rights and data protection authorities, such as the EDPS, the Article 29 Working Party, the Fundamental Rights Agency, the World Health Organisation and the UN Special Rapporteur on the Protection of Human Rights while Countering Terrorism;

22. Expects that the Commission will base its proposal on extensive independent and objective scientific information gathered among EU experts in the field and without interference from the industry sector, Member States’ governments and third countries;

23. Stresses that the technical specifications of the European Civil Aviation Conference Technical Task Force and the vendor contracts for body scanners should be declassified and made publicly available;

24. Recommends that every passenger’s ticket show the cost of security measures;

25. Requests that the European Union Agency for Fundamental Rights be asked to provide an extensive opinion on the fundamental rights aspect of any proposal concerning the deployment and use of body scanners;

26. Asks the Commission to explore alternatives to the use of body scanners, taking into account other measures already in use for detecting aviation security threats, demonstrating the need to replace current airport security monitoring measures with these scanners;

27. Calls on the Commission, the Council and the committee responsible to replace the words ‘security scanner(s)’ with the words ‘body scanner(s)’ where the scanners are used to screen persons, including in the title of the report, thereby avoiding inappropriate and unnecessary confusion and ambiguities.

Earlier this year the Australian Minister for Home Affairs Brendan O'Connor that "internal body scanning technology" will be "used at airports to stop drug couriers" -

Customs & Border Protection will test internal body scanning technology as a way to boost the detection of drugs that are being imported inside the bodies of drug couriers.

The changes to the Customs Act 1901 will allow accredited Customs officers to offer suspects the option of an internal body scan at an international airport, as part of a year-long trial.

To conduct a body scan, a reasonable suspicion must be formed that a person is carrying drugs internally and the suspect must consent to being scanned. If they refuse, they will instead undergo the current practice of a hospital examination.

"In 2009-10, 48 drug couriers were identified attempting to import more than 27 kilograms of illicit drugs within their bodies, including heroin and cocaine," Mr O'Connor said.

"Bringing illicit drugs into Australia is illegal. We want to do all we can to stop drug importation and protect Australian families from the immeasurable harm caused by drug use.

"Internally secreted drugs pose a dire health risk to a courier. It is not unusual for packages to split and for drug couriers to face serious illness or death as a result.

"Body scanning technology will help to more promptly identify if a suspect is carrying drugs internally and allow medical help to be rendered quickly," Mr O'Connor said.

In 2009-10, 205 people were taken to hospital for examination under suspicion of having drugs concealed internally. Upon medical examination, less than a quarter were found to be carrying drugs.

The option of an internal body scan will more quickly clear legitimate travellers and ensure a minimum of delay at our airports.

The Government went on to comment that -

The use of internal body scanning technology at airports is also expected to present significant time and money savings to Customs, the Australian Federal Police and our hospitals.

At the moment, when a person is suspected of internally concealing drugs, they are taken to a hospital for examination by a doctor.

"Last year AFP officers spent almost 8300 hours guarding suspects, including more than 4600 hours in hospital waiting rooms, rather than policing our airports and other public areas.

The technology produces images similar to a medical x-ray showing internal body tissue, skeleton and, where present, internal drug concealments.

"As Minister for Privacy, I'm acutely aware of community concerns about the use of such technology. I'd like to assure the public that this technology will be subject to strict controls.

"Most importantly, body scanning technology will not be used on all travellers or used randomly - it will only be used where there is a reasonable suspicion that a person is carrying drugs internally. In addition a suspect must consent to the use of body scanning technology."

The fine print is more problematical. The Minister's media release states that "measures to ensure privacy and individual rights are respected include" -

• law enforcement agencies form a reasonable suspicion that a person may be carrying illicit drugs internally before the technology can be used

• a suspect must give written consent to being subject to body scanning technology. If they don't, a hospital examination will be conducted, as is the current practice

• the operation of the body scanning technology will be conducted by a specially trained Customs officer

• the images taken are subject to storage, access and destruction controls

• the specific configuration of the body scanner device has been legislated to ensure that it is restricted to detecting internal drug concealments

• children, pregnant women and the mentally impaired will not be offered a body scan.

And of course "Customs & Border Protection is working with the Office of the Australian Information Commissioner to ensure that the use of the technology balances law enforcement needs with privacy concerns".

Valuation

The Office of the Australian Information Commissioner has released a 40 page public discussion paper [PDF] regarding the valuation of 'public information'.

The paper states that -

Information is a valuable resource. The right information at the right time can expand knowledge, enable innovation, boost productivity, and even save lives. Unlike other valuable resources information is not diminished by use. Indeed, the value of information can be enhanced when it is openly accessible and reused frequently.

The term 'public sector information' appropriately describes the information gathered by government and captures its intrinsic value. In essence, it is a national resource and there are corresponding obligations on government officers to ensure that it is managed responsibly and astutely.

A key objective in government information management must be that public sector information (PSI) is made available to the community as openly as possible and is both discoverable and reusable. This was the central message in the 2009 report of the Government 2.0 Taskforce [questioned here]. The taskforce envisaged a role for the Office of the Australian Information Commissioner (OAIC) in promoting open PSI and recommended that the office develop a methodology for agencies to report annually to government on the value generated by published PSI.

This paper commences that process. The first step is to build a better picture of the PSI landscape in Australia. Initially, agencies must be supported in gathering the necessary data, so that a methodology for evaluating that data can be applied.

The major proposal of this Issues Paper is that agencies should complete a survey form that will gather consistent information across government on information management practices. A draft survey form is published in the Appendix. It is tied to the eight Principles on open public sector information that the OAIC launched in May 2011. The Principles reflect the information lifecycle in government information management and, as the title conveys, work from a premise of open PSI.

The paper proposes that the survey be administered by the OAIC in May 2012, following public consultation on the ideas presented in this paper. The survey will be administered both to government agencies and to re-users of PSI. The information collected in the survey will then be used by the OAIC in at least three ways. One will be in a public report by the OAIC on the Australian PSI landscape and the value of publication. The second will be in developing a methodology for valuing PSI, as envisaged by the Gov 2.0 taskforce. The third will be in discussion between the OAIC and the newly-appointed Information Advisory Council, in developing advice to government on national information policy.

The OAIC has invited submissions on three issues -

1 The ideas presented in the Issues Paper: does the paper propose a workable approach for mapping the PSI landscape and developing a methodology for valuing PSI?

2 The draft survey form in the Appendix to the paper: is the survey form appropriately framed to address the right issues and gather useful information?

3 The literature survey in Part 4 of the paper: does this survey adequately cover the field, and are there gaps or limitations in the existing research?

Lockemup

Victoria's Sentencing Advisory Council has released a 168 page report [PDF] advising the state Attorney-General on the introduction of statutory minimum sentences for the offences of intentionally causing serious injury and recklessly causing serious injury, when those offences are committed in circumstances of gross violence.

Gross violence is where an offender -

• plans in advance to engage in an attack intending to cause serious injury;
• engages in a violent attack as part of a gang of three or more persons;
• plans in advance to carry and use a weapon in an attack and then deliberately or recklessly uses the weapon to inflict serious injury; or
• continues to violently attack the victim after the victim is incapacitated.

The Council's terms of reference involved advice on the potential operation of a minimum four-year non-parole period for adults, and a minimum period in detention of two years for children aged 16 or 17, with a court only be able to sentence below the statutory minimum in tightly defined exceptional circumstances.

The Council was specifically asked to provide advice on:

a. how the exceptional circumstances in which a court may impose a non-parole period of less than the statutory minimum sentence should best be specified;
b. how the factors making the offence one of gross violence to which the minimum sentence is applicable should best be specified;
c. the likely effects of recommendations and options put forward by the Council on sentencing levels for the relevant offences and on the numbers of persons serving custodial and non-custodial sentences; and
d. any other matters the Council considers relevant.

The terms of reference did not ask the Council to consider the merits of a statutory minimum sentence scheme.

The Council consulted with criminal justice, governmental and non-governmental stakeholders, inc through two discussion forums. It received 26 written submissions.

The report features a "closely interrelated" package of recommendations addressing the form and content of gross violence offences and the policy objectives reflected in the terms of reference.

It recommends that rather than forming aggravating circumstances to the sentencing considerations for existing serious injury offences, separate new offences should be created. One offence should involve the intentional infliction of severe injury. The other offence should involve reckless infliction of severe injury (corresponding with the existing offences of intentionally causing serious injury and recklessly causing serious injury). In sentencing for the proposed offences, the minimum non-parole period (or period of detention) should apply to the case as a whole. Where there are multiple charges of gross violence, a single minimum statutory non-parole period (or period of detention) should apply to the whole case. It would remain open to a court to impose a nonparole period (or period of detention) greater than the minimum to take multiple charges into account if the court considers it appropriate having regard to ordinary sentencing principles.

The jurisdictional limit on the sentence that may be imposed by the Magistrates’ Court (and the proposed statutory minimum for adult offenders) means that the new offences cannot be determined summarily for adults in the Magistrates’ Court. Given the incompatibility of a two-year minimum sentence with the current sentencing powers of the Children’s Court, the report recommends that the offences should be excluded from the Children’s Court jurisdiction by listing the gross violence offences in s 516(1)(b) of the Children, Youth and Families Act 2005 (Vic)

The current threshold for ‘serious injury’ in the Crimes Act 1958 (Vic) is low, with the Court of Appeal holding that relatively minor injuries (such as two black eyes and a grazed forehead) can constitute ‘serious injury’. The Council -

does not consider that such injuries are consistent with the intended policy (the policy announcement referred to attacks that are leaving victims with ‘terrible life-long injuries’) and recommends that the new offences with the statutory minimum sentences should only apply to situations involving a higher level of injury.

... the threshold should be ‘severe injury’, [d]efined in legislation [with] a test similar to that of ‘serious injury’ in the Accident Compensation Act 1985 (Vic). This would cover injuries of a long-term nature involving serious impairment to, or loss of, a body function or serious disfigurement.

The Council considered each of the gross violence factors proposed in the terms of reference -

‘Plans in advance to engage in an attack intending to cause serious injury’
The Council notes that planning offending behaviour in advance significantly increases an offender’s culpability. The Council recommends that the proposed circumstance be included as an alternative element of the offence of intentionally causing severe injury. As the proposed circumstance requires a plan in advance intending to cause injury, the Council recommends that planning in advance should not be included as an element of the new offence of recklessly causing severe injury.

‘Engages in a violent attack as part of a gang of three or more persons’
The Council notes that violent offending involving three or more co-offenders increases each offender’s culpability. However, the Council considers that the degree by which culpability is increased will depend on the extent of involvement of each offender in the offence. The law of complicity provides that co-offenders
who may have limited involvement in offending can still be convicted of the offence. Ordinarily, a sentencing court can impose a sentence that appropriately reflects each co-offender’s level of culpability. Where a statutory minimum applies, the least culpable co-offender will still receive the minimum sentence. The Council recommends against the use of the word ‘gang’, as it may require evidence of some form of common identity among co-offenders and limit the application of this element to formalised ‘gangs’, rather than simply offending in company. In accordance with the policy objective to target highly culpable offenders, the Council recommends that this gross violence element be limited to those offenders who either themselves inflict severe injury, or act in concert to inflict severe injury. Those offenders who aid, abet, counsel or procure a gross violence offence should still be liable to conviction, but should not be subject to the statutory minimum sentences.

‘Plans in advance to carry and use a weapon in an attack and then deliberately or recklessly uses the weapon to inflict serious injury’
The Council notes that violent offending involving the use of a weapon carried for the purpose of that offending significantly increases an offender’s culpability. The Council recommends that this circumstance be included as an alternative element of both intentionally causing severe injury and recklessly causing severe injury, save that the words ‘deliberately or recklessly’ should be replaced with either ‘intentionally’ or ‘recklessly’ to correspond with the mental element of the relevant offence.

‘Continues to violently attack the victim after the victim is incapacitated’
The Council notes that an offender’s culpability is significantly increased in circumstances where that offender has continued to attack a victim after the victim is incapacitated. The Council has considered whether the term ‘incapacitated’ should be defined and concludes that to do so may unreasonably exclude otherwise highly culpable offending and that the term is an ordinary word capable of determination by the finder of fact. The Council recommends that this circumstance be included as an alternative element of both intentionally causing severe injury and recklessly causing severe injury. The Council recommends that this element should also cover situations in which an offender continues to violently attack or cause injury to the victim after the victim is incapacitated (such as where an offender releases an unconscious victim allowing him or her to fall and sustain injury). The Council recommends that the alternative elements of the new severe injury offences should be read disjunctively, such that proof of one element is sufficient to make out a gross violence offence. The presence of one gross violence element is sufficient for an offender to demonstrate a high level of culpability.

The Council adopted a merits-based approach to determining those circumstances that warrant exemption from the statutory minimum sentences. It recommends that the phrase ‘special reasons’ should be used to avoid confusion with other tests in Victorian law that use the phrase ‘exceptional circumstances’. Given the rationale of high culpability implicit in the gross violence elements of the new severe injury offences, the Council considered that exceptions to the imposition of a statutory minimum sentence should be based on circumstances that significantly diminish an offender’s culpability or that can be justified for public policy reasons. As a general statement test may be susceptible to broad interpretation and the clear policy objective is to tightly define exemptions from the statutory minimum sentences, the legislation should provide a list of special reasons, comprising those circumstances
that are foreseeable and commonly regarded as appropriate exemptions on the basis of the rationales of diminished culpability and public policy. The list of special reasons should not be exhaustive, as there are unforeseeable circumstances.

The non-exhaustive list of special reasons should include at least -

• intellectual disability or cognitive impairment (including acquired brain injury);
• mental illness;
• particular psychosocial immaturity and/or particular vulnerability in custody; or
• assistance by the accused to police or an undertaking by the accused to assist the Crown.

The majority of 'serious injury charges (72.7% in 2008–09) result in a sentence of imprisonment, with one in five (21.0% in 2008–09) cases involving a charge of intentionally causing serious injury reflected in a non-parole period equivalent to, or greater than, the proposed statutory minimum of four years. Of the 454 charges sentenced in the Magistrates’ Court in 2008–09, 17.4% received a sentence of imprisonment. Of the 158 charges sentenced in the higher courts in the same year, 42.4% received a sentence of imprisonment. Based in part on an analysis of sentencing in 2008–09, the Council estimates that a broad definition could result in a compound increase of 1150 to 1450 adult prisoners and its recommended definition would result in a compound increase of approximately 200 adult prisoners. Under the broad definition the Council estimates that the number of monors sentenced to a youth justice centre order could increase from approximately 20 to approximately 80
per year. Minors would also be retained in custody for a much longer period of time than is currently the case.

The Council considered the impact on the number of pleas, plea negotiation, court costs and court delay. It noted that in the overwhelming majority of cases involving the existing serious injury offences, the accused pleads guilty (providing "significant benefits to the community" and a reduction in sentence). The report notes that

Stakeholders raised concerns that, under the statutory minimum scheme, there would be little, if any, incentive for an accused person to plead guilty to the new offences. In addition, under the broad definition approach, a very large number of cases that are currently dealt with as a plea of guilty in the Magistrates’ Court would have to proceed as a committal in the Magistrates’ Court and then to a contested trial in the County Court. Concerns were expressed that, in the absence of a significant injection of resources, this could overwhelm the system and lead to significant delays. The potential for this to occur is significantly reduced under the recommended definition approach.

Other matters examined by the Council includede -

• the potential for a disproportionate impact on certain kinds of offenders;
• the impact on Indigenous offenders, including the potential impact on the Koori Court;
• the impact on human rights obligations, including international human rights obligations;
• the loss of access to group conferencing and other rehabilitative and restorative measures;
• the impact on victims;
• issues of recidivism and deterrence; and
• custodial and future costs.

The Council notes a substantial degree of uncertainty and unremarkably suggests that the scheme's impact should be monitored.

Laundries

The Australian Transaction Reports & Analysis Centre has released a descriptive 44 page report [PDF] on Money laundering in Australia 2011.

The report is described as presenting -

a consolidated picture of current money laundering - the indicators and activities involved, the sectors and professions which are vulnerable, a range of new threats which are emerging, and the general framework of regulations and actions necessary to identify and prevent this crime

and complementing the problematical Organised Crime report highlighted earlier this year.

Blagging

News Limited, the Australian arm of Murdoch-controlled News Corp, has released a short report [PDF] by independent assessors into whether there had been "improper payments" to police and other entities.

The report follows what it describes as

disclosure that persons associated with or employed within the Murdoch group of companies in the United Kingdom had engaged in illegal and reprehensible activity, including telephone hacking.

That activity is currently the subject of the Leveson Inquiry in the UK, with indications that misbehaviour involved figures within News and within its competitors.

News agreed that

two independent persons nominated by the Chair of the [Australian Press] Council, Professor Julian Disney, should be appointed “to help provide public assurance that News Limited has initiated and acted upon the review in an appropriate manner”

The review was to -

• Determine whether within the preceding five year period any improper payments may have been made to police or other government officials.
• Establish whether any private investigators engaged by or on behalf of News Limited may have acted in an illegal or reprehensible fashion in relation to such engagements.
• Make any recommendations considered necessary to ensure that proper standards of ethics and accountability were maintained at all levels within the Group's newspapers.

The independent assessors were former Victorian Supreme Court justices the Hon Bernard Teague AO and the Hon Frank Vincent AO QC. They comment that -

In our view, it can reasonably be accepted that, properly conducted, the review as constructed certainly ought have brought to light any systemic issues with respect to the making of payments to third parties and any substantial amounts paid to individuals in respect of illegitimate activities.

With regard to the rigour with which the review was conducted, we are reliant upon the reports given to us. However, we have no reason to suspect that the enquiries were not conducted as assiduously as indicated to us or that the findings made could be sensibly perceived as problematic in any respect.

The Herald-Sun reported the 'all clear' -

Prime Minister Julia Gillard was quick to use the phone-hacking scandal involving the News of the World in Britain to start a media inquiry into what she implied might be similar intrusions by News Limited papers in Australia.

The Herald Sun, which is owned by News Limited, was just as quick to reassure its readers that such illegal intrusions did not happen here.

There was no reason to start a media witchhunt, which has been driven by Labor and the Greens who do not like reading what the public thinks of their policies, such as the carbon tax.

But the audit of its newspapers, undertaken by News Limited and independently assessed by retired Victorian Supreme Court judges Frank Vincent and Bernard Teague, has found no evidence of illegitimate telephone surveillance or payments to public officials.

However, taxpayers' money is being wasted by Labor and the Greens in a media inquiry it hopes will regulate or license newspapers, which will lay them open to political interference.

Editorial angst about regulation is consistent with the recent comment by News journalist Andrew Bolt that proposals for a statutory tort of privacy were "a sinister law, planned by a government with sinister motives".

The Herald-Sun elsewhere reports that -

A Review of News Limited's major newspapers has found no evidence of illegitimate phone surveillance or payments to public officials, the media company says.

The three-month review was commissioned by News Ltd chief executive John Hartigan, and carried out by a team of 26 auditors.

The auditors scrutinised almost 700,000 transactions carried out over a five-year period.

Retired Victorian Supreme Court judges Frank Vincent and Bernard Teague, appointed as independent assessors of the review by the Australian Press Council, said today they had no reason to suspect the review was not conducted ``as assiduously as indicated to us''.

"The review's findings provide the strongest possible support for News Limited's assertion that its editorial staff have not commissioned the kind of illegitimate surveillance or payments that have come to light in the UK,'' News Ltd said in a statement. ...

"I said at the start of this process I had no reason to suspect any wrongdoing,'' the soon to retire News Ltd chairman and chief executive John Hartigan said in a statement today.

"An incredibly diligent piece of work has confirmed that.

We can all sleep soundly tonight.

Golden Tonsils

The Australian Communications & Media Authority (ACMA), the national broadcasting regulator, has released a 17 page report [PDF] on the review of the formal Commercial Radio Standards (CRS), a key feature of the broadcasting co-regulatory regime. The report reflects a mere 17 submissions in response to an issues paper, most of them from broadcasting interests.

ACMA plans to strengthen the Advertising Standard and Disclosure Program Standard, along with abandonment of the Compliance Standard. The current standards are being redrafted; new regulatory instruments are due to come into effect on 1 March 2012 after a period for public comment (presumably a short period over the Christmas break).

The three standards were articulated by the Australian Broadcasting Authority (predecessor of ACMA) following its 1999 ‘Cash for Comment’ Commercial Radio Inquiry [PDF] that revealed leading commercial radio figures - the so-called Golden Tonsils such as Alan Jones - were being paid for 'opinion', ie advertising in the guise of personal comment. One fallout from that inquiry, criticised by Media Watch and others as unduly permissive, was the resignation of then ABA chair and fervent monarchist Professor David Flint. The controversy features in works such as Jonestown: The Power and The Myth of Alan Jones (Allen & Unwin, 2006) by Chris Masters, 'Cash and Controversy: A Short History of Commercial Talkback Radio' by Liz Gould in 122 Media International Australia(Feb 2007): 81-95 and 'Media Ownership and the Productivity Commission: Market Theory and Regulatory Practice in the Global Age' [PDF] by Denis Cryle in 1(1) Ejournalist (2001).

ACMA chair Chris Chapman, who recently thundered that poor practice in the telecommunications sector "must change, and change immediately" [it hasn't, of course, and judging by the latest news from ACMA will not do so in the immediate future], stated that -

The ACMA has decided that it is appropriate to continue regulating both commercial influence in current affairs programs on commercial radio and advertising on commercial radio. However, given improvements in the industry’s compliance practices and culture the Compliance Standard will be revoked. ... ACMA believes these reforms will provide better insights and clarity for citizens while materially lessening administrative burden on licensees

The new report indicates that if the commercial broadcasters develop "an appropriate code of practice for dealing with advertising" ACMA will consider revoking the Advertising Standard. Let us hope that it considers carefully, with emphasis on implementation of the code rather than merely development of a code in an expression of bureaucratic capture.

The existing Disclosure Standard will be broadened to require disclosure of both ‘presenter agreements’ (where the presenter has a commercial agreement with a sponsor) and some ‘licensee agreements’ (where the presenter has an interest in the licensee company which in turn has a commercial agreement with a sponsor). However, current affairs presenters will have more flexibility in how they identify sponsorship arrangements, rather than being compelled to use one of six scripted statements. The register and formal notifications process will be amended so that the broadcasters can keep online registers without the need for formal notices to ACMA. Changes to the Advertising Standard involve clarifying that advertising must be distinguishable from other program material at the time of broadcast rather than later in a segment or program generally. In both standards "the definition of 'consideration' will be broadened to better capture instances of paid advertising and commercial influence by including within its scope other beneficial and indirect benefits".

The report states that ACMA has decided to -

• Regulate advertising on commercial radio through a program standard with new elements that more effectively promote community standards and provide more stable and predictable regulation — until such time as the commercial radio industry has in place an appropriate code of practice dealing with advertising
• Regulate commercial influence on commercial radio current affairs programs through a program standard based on a disclosure model, with new elements to more effectively promote community standards and provide adequate community safeguards as well as reduce the financial and administrative burdens on licensees.
• No longer regulate compliance with regulatory obligations through a program standard, but rely on existing provisions of the Act to deal with breaches on an individual licensee basis to reduce the regulatory, financial and administrative burdens on licensees.

The report can be read in conjunction with the submission from the Communications Law Centre [PDF].