Catching Illegals down-under (2)
Coaching, guiding or forcing Australian print journalism into shape
This is the second page about the use of the term "illegals" in the Australian print press. The first page dealing with this issue is here.
In May 2004 a complaint was lodged by refugee advocates against the Sydney Morning Herald's use of the word "illegals" in a headline on April 30.
The complaint was lodged, as we believe, by several people, and supported by letters to the Press Council by others. Below, some communication between Mr Ross Copeland from Western Australia and Mr Jack Herman, Executive Secretary of the Press Council.
Also below, a section from a conversation in the High Court of Australia during a court case in November 2003, of Justices GLEESON, HAYNE and GUMMOW with MR BENNETT, Solicitor for the Commonwealth, relating to the term "unlawful" as used in the Migration Act.
We conclude the page with a letter from Project SafeCom to Mr Jack Herman, Executive Secretary of the Australian Press Council.
But first, a summary of the reason for the complaint against the Sydney Morning Herald:
The case of the SMH complaint
The Sydney Morning Herald published an article on April 30 2004. The article was also included in our Project SafeCom newsletter of May 1 (Item 9):
Illegal immigrant children may not be sent home: Howard
The article first appeared the online record of the newspaper. The link to the Sydney Morning Herald archives is:
Complaints were written to the Sydney Morning Herald for the use of the term "illegal immigrant" in referring to asylum seekers. Now, try the link and you'll find the headline:
Detained children may not be sent home: Howard
The Sydney Morning Herald 'quickly' - possibly within a day - changed the headline.
The online news article is the transcript of an Australian Associated Press article. These articles are not written by staff at the Sydney Morning Herald, it is an automatic inclusion of an article written by staff at AAP, but editors or journalists at the newsdesk can change the text or the headline of such an AAP article.
Often such articles get posted to the Murdoch and Fairfax press online versions of the newspapers, posssibly sometimes even without any human intervention.
The headline may never have made it into the newsprint on May 1 (it was written on April 30 online, but if any content went up in the print version, it would have been the next day, May 1).
Very often online AAP articles get reworked by the journalists for the print version. When they are, the name of the writer gets a by-line.
But - and that is the core of the complaint - the original title of the online version of the article that first went on its website, was Illegal immigrant children may not be sent home: Howard.
In addition, the original headline seems to suggest that the statement "Illegal immigrant children may not be sent home" is either a quote from PM John Howard or a paraphrased version of one of the PM's statements.
In the case of some of the complainants it remains unclear which aspect of the issues has been put forward specifically against SMH.
The Australian Press Council and "illegals"
FROM: Jack Herman, Exec Secretary Australian Press Council
Thank you for your further letter of 23 May. It is apparent that I have not been clear enough in explaining to you how the Council operates.
The UK PCC issued a statement dealing with the UK situation. The same situation does not apply in Australia because there is a different law dealing with those arriving in Australia without proper documentation.
In the Migration Act they are called "unlawful non-citizens", as the recent High Court judgement made clear. In Australia what is the difference between "unlawful" and "illegal"? Would the Council be splitting hairs if it were not to allow the usage of "illegal" to cover "unlawful" arrivals?
These are questions which the Council would like to address but will not do so in the absence of cited examples of alleged inaccurate terminology. The Australian Press Council does not slavishly imitate its British counterpart but deals with matters as they arise in Australia. The Australian Council prefers to make statements of general principles based on particular examples. Hence in March, the Council adjudicated two complaints about headlines in The Australian that talked of "Muslims" killing 29 and "Muslim terror" killing the peace.
As a result of adjudicating these complaints, the Council decided a more general statement was required and subsequently issued a guideline seeking that publications avoid the use of too general terms for religious or ethnic groups in headlines where the whole group might be blamed for the actions of a minority.
Hence if you want the Council to issue a set of guidelines on terminology on asylum seekers the best way to achieve that end would be reference of particular complaints to the Council for adjudication. The Council judges such complaints on the basis of its principles. Any guidelines it issues are exemplifications of a particular aspect of the principles and do not become principles themselves. Even if it issued a guideline on reporting asylum seeker issues, it would be unlikely to mandate the use of particular terminology and would, subsequently, view complaints in the light of the principles, not of the guideline. What you want the Council to do is pre-empt any complaints by assuming that a one-size-fits-all directive will cure the problem. It rarely works that way as many groups that have tried to impose "politically correct" terminology on publications or the public have learned.
Finally, I note that two of the other complainants have referred the Herald matter to the Council for adjudication. In the light of their action and your reluctance to take any step which might see a matter adjudicated, I will assume that you are happy to withdraw your concern in favour of theirs.
Dear Mr Herman
Thank you for your letter of 26 May.
I was very concerned about the tenor of your letter and had it referred to Julian Burnside QC for his comment. As I am sure you are aware Mr Burnside is an eminent legal practitioner in the field of law relating to refugees in Australia and may well be the leading authority in this country. His response to your letter of 26 May to me said:
"The letter is absurd. It is true that the Migration Act defines a person who arrives without papers as an "unlawful non-citizen". It is purely a definitional term, as the government concedes. They could equally have been defined as "pop-up toasters" or "convicted terrorists". Giving them the tag as a matter of definition says nothing about the underlying facts."
Mr Burnside has also said:
"To come to Australia without authority and seek asylum is not an offence against Australian law. There is no provision of the law which says it is an offence to arrive in Australia without permission. Much less is it an offence to arrive in Australia without permission and seek asylum. To the contrary, Article 14 of the Universal Declaration, entered into force on 10 December 1948, guarantees to every human being the right to seek asylum in any territory they can reach."
"'Illegal' means 'contrary to or forbidden by law'. It necessarily implies commission of an offence. It is inappropriate, and misleading, to characterise an act as illegal simply because it is not specifically authorised. It is all the more inappropriate where the relevant conduct is positively permitted under international conventions, and where it is used as a device to make it appear respectable to imprison the supposed illegals."
It seems that you're interchanging "unlawful" from the term "unlawful non-citizen" - a term merely used for labelling purposes - with the term "illegal", itself perhaps a 'legal term' but in this context unfounded in any Australian law. In doing so, it appears you're making a quantum leap from 'naming and labelling' into the legal field without being sufficiently informed or capable in legal terms for this. Politicians do this for obvious political purposes but I would expect the APC to be sufficiently impartial to recognise when an apparently legal term is being used in an unfounded - and therefore manipulative - manner.
It is also quite misleading to try and distinguish between the provisions of Australian law and British law. The rights of asylum seekers to claim refugee status and for receiving countries to consider those claims derive from the Universal Declaration of Human Rights and the Refugee Convention, to which both Australia and Britain are party. Domestic law in both countries merely underpins our obligations under international law.
If indeed asylum seekers and refugees have committed a breach of any law and thereby rendered themselves "illegal" the proper course of action by a responsible government would be to charge them with an offence and bring them before a court of law to determine their guilt or innocence, and if guilty have an appropriate penalty imposed. This does not happen of course because there has been no breach of any law.
While asylum seekers who arrive by boat (but not those who arrive by plane) are held in detention centres pending determination of their refugee status they have not been found guilty of any offence.
It is not a matter of "splitting hairs" to distinguish between asylum seekers claiming refugee status who are acting within international and Australian law and are not in any way "illegal", and "unlawful non-citizens" which is simply a descriptive status. "Unlawful non-citizen" may well be an accurate description for the many thousands who overstay visitor and student visas each year but they are not demonised as "illegals".
The SMH issue is just one instance which has been drawn to the attention of the Council where the term "illegal immigrant" has been used in a misleading way. You say in your letter "The Council judges such complaints on the basis of its principles." but you have not indicated to me what principles you would apply in determining such complaints. How is a complainant to know whether an issue contravenes your principles if you do not enunciate them?
I believe an underlying principle should be one of fairness. No other group in our community would be expected to tolerate being branded as "illegal" when they have broken no law. Why should asylum seekers who are already severely disadvantaged and persecuted have to suffer the extra burden of a false label? It is not a matter of trying to use "politically correct" terminology but it is about using fair, truthful and legally correct language.
The UK Press Complaints Commission was able to issue guidelines enunciating general principles without the need to determine a particular complaint. I fail to understand why the Australian Press Council could not act similarly.
You are mistaken to assume that I withdraw my complaint simply because others are pursuing theirs. I reserve my right to pursue my complaint against the SMH or indeed other publications should the situation warrant such action.
I trust that the APC will take the above comments into account when considering the complaint against the SMH which I understand is scheduled for hearing on 9 June 2004.
High Court of Australia Transcripts
Behrooz & Ors v Secretary DIMIA & Ors, SHDB v Godwin & Ors, DIMIA v Al Khafaji  HCATrans 458 (13 November 2003)
Last Updated: 13 November 2003