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
Sydney Morning Herald
April 30, 2004 - 11:11AM

The article first appeared the online record of the newspaper. The link to the Sydney Morning Herald archives is:

http://www.smh.com.au/articles/2004/04/30/1083224561128.html

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
Sydney Morning Herald
30 April (NO TIME STAMP)
http://www.smh.com.au/articles/2004/04/30/1083224561128.html

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
TO: Ross Copeland
SENT: Wednesday, May 26, 2004 9:52 AM
SUBJECT: Complaint against SMH

Ross Copeland,

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.

Jack Herman
Executive Secretary

---------
FROM: Ross Copeland
TO: Jack Herman, Exec Secretary Australian Press Council
SENT: Friday, May 28, 2004 3:25 PM
SUBJECT: Re: Complaint against SMH

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.

Yours sincerely

ROSS COPELAND
CARINE WA

Project SafeCom's letter to the Press Council

Date: Sun, 30 May 2004 18:04:44 +0800
To: info(at)presscouncil.org.au
From: Project SafeCom
Subject: Australian Press Council and the use of the term "illegal" in Australian print and periodicals

Australian Press Council
Policy Development
Suite 10.02, 117 York Street
Sydney NSW 2000
Tel: (02) 9261 1930
Fax: (02) 9267 6826
email: info(at)presscouncil.org.au

Sunday, 30 May 2004

Dear Mr Herman

Re: Australian Press Council and the use of the term "illegal" in Australian print and periodicals

During the last few months several people have sent me copies of communication from them to the Australian Press Council about the use of the term "illegal" in news and periodical print around the country, and replies by you to them.

In the light of the upcoming case of a complaint against the Sydney Morning Herald scheduled by APC to be heard on June 9 2004, 10am, I will now write to you with some comments. I ask you to table this letter at your next 'policy development meeting' or its equivalent forum, so that all members of the Council can take note of it. The text of this letter reaches you by email, both as text inline, and as a PDF document attached to the email.

I note your remarks sent to Ms Joan Good of Traralgon, Victoria:

"...the Council, when it was considering the UK Press Complaints Commission statement on language to be used about asylum seekers, noted that people landing in Australia without the proper visas may, in some circumstances, be viewed as 'illegal immigrants' or 'illegal entrants'. This is reinforced by the use in the recent High Court judgement of the term 'unlawful non-citizen' to describe some asylum seekers. The use of this terminology in the Migrant Act may mean that the UK statement has limited reference to the Australian situation..."

You correctly conclude that the term "unlawful non-citizen" occurs in the Migration Act. You also correctly state that the term came to be a point of debate in a recent High Court judgment.

You err in your thinking though, that the use of this term was "reinforced" in the High Court judgment. If the case you refer to is indeed the High Court case I have in mind {Behrooz & Ors v Secretary DIMIA & Ors, SHDB v Godwin & Ors, DIMIA v Al Khafaji [2003] HCATrans 458 (13 November 2003)}, then quite the opposite seems to have taken place.

From the court transcript at http://www.austlii.edu.au/au/other/HCATrans/2003/458.html it should become clear, that the term 'unlawful' "is merely a word which is used in a definition section", as conceded by Mr Bennett for the Commonwealth. Further, the discussion between Mr Bennett and Hon Justice Gummow shows that the term is meaningless.

I have posted the relevant section of the High Court case on our website at

http://www.safecom.org/illegals2.htm

On that page is also some communication between yourself and Mr Ross Copeland from Carine, WA. In Mr Copeland's reply, Mr Julian Burnside QC comments on your interpretation of the legal strength of the term 'unlawful non-citizen':

"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 Copeland's letter then goes on to discuss your suggestion that the term 'illegal' and 'unlawful' are interchangeable. It states:

"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."

Apart from the fact that you implicitly err in your interpretation of the legal strength of the term 'illegal' - the entry of Australia without papers is not illegal. Julian Burnside QC again:

"'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."

Although there is no need to repeat in this letter what has already been relayed to you in Mr Copeland's letter, I do feel the need to express disappointment that weeks before the SMH case is due to be heard, you seem to already have made up your mind about the Council's position - and an erroneous position it is!

It also seems that the word 'hearing' also becomes meaningless, if a situation arises where weeks before the day of a hearing, a forum that has been appointed especially for such a hearing has already made up its mind about 'what is the case'.

I also want to address the notion of calling "unidentified groups of people arriving by boat" as a distinct group "illegal" after they have declared themselves as people seeking asylum in Australia. Firstly, this is not only just a label (as outlined above) but also highly inappropriate within the terms set under Australia's adherence to the UN Refugee Convention, as well as under the terms of the International Declaration of Human Rights, where every human being has a right to seek asylum.

Secondly, the UN Convention was specifically developed to bring a change to the practice of "turning boat people away" by many countries, at the time of the Second World War - one of those countries was the USA. It is true that the UN Convention and the rights it brings to asylum seekers in those countries that have signed the Convention, invalidates any notion of "illegality".

Thirdly, in relation to the arrival of "boatpeople" on Australian shores, the empirical evidence must be overwhelming in the eyes of anyone: I can confidently assume there have been no significant number of boats whatsoever in the last two decades or so, where passengers on those boats have sought to deliberately breach Australia's borders for the purpose of gaining entry illegally without being discovered by any authorities and with the intent to settle "clandestinely" in our country: I dare say that all those who we have come to call "boat people" came here, for the purpose of seeking asylum and that they on arrival or interception declared that they indeed intended to seek asylum. So, apart from anything else, the term "illegals" is an empty phrase in this context. It has been introduced by politicians, in our opinion with the explicit purpose to denote a specific and emotionally laden meaning to the status (supposedly to next define the appropriate treatment to go with it).

Finally, APC is not a group that is or should be politically aligned; in fact the opposite should be the case. If this is the case, APC has but one option: to discern and research that, which is partial to political leanings, and through the discovery of this partiality come to a position which reflects true impartiality. And in doing so, it has many impartial and internationally held conventions available for consideration. They can be found in the International Declaration of Human Rights, and in the case of asylum seekers, immigration detainees and refugees, the appropriate International Convention: the UN Refugee Convention.

At Project SafeCom we are well-informed, quite clear and also thoroughly determined about the action we started last December. The first phase of this action was a call for letters of complaints to Editors of newspapers and periodicals. The second phase will start taking place on June 9, when the Press Council hears a complaint against one of those newspapers.

If we are not satisfied with the outcome, we will consider what the third phase should be. At the moment that would include in our thinking finding a form for starting an action of complaints against the Australian Press Council itself.

Meanwhile, I have committed myself to approach the Australian UNHCR Office with the request to develop guidelines for appropriate and accurate reporting for Australian journalists, similarly to the guidelines in operation in the UK, see the UNHCR website at:

http://www.unhcr.org.uk/press/reporting/index.html

We wish you good luck with the hearing on June 9. Because of our widely disseminated call for action at the end of last year, I envisage a healthy public interest in your hearing.

Yours Sincerely,

For Project SafeCom
Jack H. Smit
[signed]