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sydney alternative media - non-profit community independent trustworthy
Tuesday, 4 March 2008
NSW Ombudsman helps protect community media 5th estate free speech on uni campus
Mood:  a-ok
Topic: independent media

Picture: Campus security in pseudo police uniforms shadow anti Howard Govt eduction rally 2nd May 2007 a few weeks before the last budget of the Coalition Govt, taken by SAM editor who was soon after harrassed off campus and issued with a termination of license notice effectively banning us from the open campus indefinitely.


File this one in the 'chickens chase foxes' file. 

We wrote back on December 14 2007 about the ongoing 6 month ban from Sydney University Campus as a blanket approach to anyone who seemed to be stiring up trouble but actually was doing lawful community media reportage. We say we were doing our democratic duty, the security claim SAM refused to provide lawful reason for being on campus and failed to cooperate in answering questions, even as we handed them our solicitor's ID card. Naturally we rejected that view. Here is one backgrounder:

Friday, 14 December 2007
This followed the original report of Sydney University's inner jackboot revealed in all its glory on the day of the public rally itself;
And another update as here:
Thursday, 15 November 2007
So now through the excellent advice and assistance of NSW Ombudsman's Michael Conaty, and a certain determination by this writer, has resulted in this reinstatement below ... only took 8 months, with no admissions of wrongdoing by either side (the CC to a Mr Fisher is general - legal - counsel for Sydney University), and the letter is signed by one Professor Richmond Jeremy, don't you know who also has carriage of the Callan Park development. We have raised a theory with the good Professor that community media access could well be similarly suppressed on an expanded Callan Park campus contrary to the freedom on that public open space land tenure present now. He takes "exception" to our rhetoric, but then he would talk his book, as any developer will:

Here is the legal paper trail too, if anyone is vaguely interested:

----- Original Message -----

From: SAM To: Conaty/NSW Ombdusman Cc: Senior ABC journo: Jeremy USYD; Higher Education supplement The Oz; senior SMH journo
Sent: Friday, February 22, 2008 12:11 PM
Subject: re failure to reinstate public license to attend USYD campus area Re: 28 days notice to cancel termination on undertaking

22 Feb 2008
Dear Michael Conaty at NSW Ombudsman's Office
As discussed yesterday the USYD continue to string out their original abuse of power by failing comprehensively to reinstate my public license to attend the campus on any number of publicly advertised events with the effect of stifling my community media work this last 8 months.
As predicted from my telephone conversation in Dec 2008 with you, the USYD have taken no action to reinstate despite saying they would in writing late last year, and despite, to quote:
"[Conaty] suggests a deadline for your [USYD] answer should be 28 days.": 18th December 2007 as below
The USYD appear to be cavalier in failing to re-issue me with a license to attend an otherwise generally publicly trafficable campus. This delay reinforces the deliberate censorship or victimisation as experienced in the original complaint of May 2007 trying to shut down my timely reportage of an education rally. It does feel like it.
Nor do I have any particular need or purpose except the principle of my vocational work of free community media. Do you think there might be any prospect of punitive damages against the USYD if they perservere with this capricious agenda?
I look forward to the renewed assistance of the NSW Ombudsman's office in this farcical situation, and I thank the heavens that such a check and balance exists in our government institutions. Certainly it is a case study in a potentially heavy handed control of public open space at Callan Park in the future. A real warning on curbs to democratic free speech via land tenure.
Yours truly
Tom McLoughlin, solicitor, editor www.sydneyalternativemedia.com, tel. 0410 558838,
----- Original Message -----
From: SAM  To: Jeremy ; Fisher
Cc: Conaty Sent: Tuesday, December 18, 2007 8:14 AM
Subject: 28 days notice to cancel termination on undertaking

Without prejudice
Reply address: 1a/50 Warren Rd Marrickville 2204
Professor Jeremy, USYD
CC Richard Fisher, general counsel USYD
Michael Conaty, NSW Ombudsman, investigating officer
By email
18th December 2007
Dear Professor
Breach of norms of free press community media on campus at student education rally 2nd May 2007 - 28 days notice to cancel termination of license upon undertaking here
I refer to previous correspondence in particular of 3rd December 2007:
9. Having said that, I accept that you are most likely offering in good faith "to withdraw this Notice on receipt of a written undertaking from you to comply with the reasonable inquiries and directions of the University's authorised officers in future". I do so undertake with this email correspondence and without prejudice as to what has occurred on 2nd May 07. On that we do disagree. [bold added]
Late last week I discussed the ongoing termination of licence for a good 7 months now with Michael Conaty, investigator at the NSW Ombudsman's office.
Without seeking to verbal Conaty, my understanding is that he suggests (and I agree) that I should write to you separately here repeating the above written undertaking regardless of any other outstanding issues which could take quite a while to resolve.
My understanding is that he suggests a deadline for your answer should be 28 days. I said I thought it should be much less given the 7 months delay already. However I accept his advice and his view that my previous letter of 3rd December may well be held up in the USYD legal office for other entangled concerns. I note his advice that failing action by you within 28 days that the NSW Ombudsman office 'can always revive the matter'. We take that on board and feel you should be aware of this too notwithstanding his previous willingness to close the matter.
I think you may want to also consider that we maintain a file on the USYD property interest in Callan Park as a future campus as reported in The Glebe and Inner West Courier recently, and feel the attempted May 2nd 07 exclusion of community media at a public event is a serious aspect of the planned expropriation of that public park land. I am intending to write to Hal Greenland and Friends of Callan Park, Green Party etc about what we say is this previous oppressive aspect USYD management culture. As an essentially public institution we say USYD should always be subject to community media reportage in a healthy democracy including in principle at places like a future Callan Park campus, if that eventuates. We feel there is a public interest right to know about such a change to public access regime in a traditional open access area.
Please let me know within 28 days of this letter that you have cancelled the termination of licence to attend the USYD campus, failing which I can pursue the termination again with the NSW Ombudsman's office.
Please feel free to contact the writer by tel. 0410 558838, ......and note new reply address above .........2204.
Yours truly
Tom McLoughlin, solicitor in NSW, editor www.sydneyalternativemedia.com
----- Original Message -----
From: SAM To: Jeremy ;  Fisher 
Cc: Conaty Sent: Monday, December 03, 2007 1:19 PM
Subject: Tom McLoughlin community media 2nd May 2007 USYD campus student education rally

Without prejudice
Professor Jeremy, USYD
CC Richard Fisher, general counsel USYD
Michael Conaty, NSW Ombudsman, investigating officer
By email
3rd December 2007
Dear Professor
Breach of norms of free press community media on campus at student education rally 2nd May 2007
I refer to your letter of Nov 15 2007 offering to reinstate my general public licence to attend the campus.
Thanks for your contact just prior to the federal election. I am copying in Richard Fisher based on previous exchange of correspondence and also Michael Conaty at the Ombudsman's Office for reasons that will be apparent.
1. My first letter was 2nd May 07 via electronic email with revealing photos therein. USYD have only responded 6 months later by your letter of 15 November 07. Six months later in fact. Frankly I don't buy the convenient excuses about miscommunication there at USYD.  A cynic would say this was only due to the eventual involvement of Conaty at the Ombudsman's office and on that we hang our hat.
2. With due respect you start out 2nd paragraph asserting the "private property" status of the front lawns there. To my mind (High Distinction in Land Registration at ANU in 1985!) this looks like shallow posturing. Everyone knows the Uni is massively publicly subsidised thus the reliance not on private trespass laws but the statutory Inclosed Lands Act just like Darling Harbour and Opera House etc which is your legal right. So yes it is quasi private, but conversely it is quasi public. Hence the whole public licence/termination regulatory regime.
3. That being said I prefer to not bandy legal niceties of land tenure with you. I'm busy, no doubt you are to.
4. The truth of the incident whether in your reports or not is that at law I don't need permission 'to photograph without consent' as you put it. Further, to be entirely accurate I was asked my name as I moved on to the gathering of students and their rally which was the next newsworthy location some 30 metres away. Your man tried to run interference by holding me up to get my name in his little note book, and I said "You can walk with me. I am working." He didn't follow me into the midst of the gathering student protester crowd. Quite wisely I thought.
5. Some 60 minutes later I was surrounded by 4 security as I tried to get my bicycle to leave with the rally. They had been photographing and monitoring my community media work all this time as evidenced by my record and were clearly stalking me for the opportunity to pounce. Only well after the rally was moving off did they demand my name and details. There was some clarifying debate about their legal power and then I gave my solicitor's card with ID. I repeatedly answered the question "Do you have a lawful reason to be on the campus?" with the incredulous response "I'm here to report the student rally for community media. I'm the reporter and editor for Sydney Alternative Media.com."
6. There can be no mistaking the motive and intention of these security staff. It was straight out oppression of free media coverage of the student rally, and of their method of dealing with that student gathering. Very unimpressive in a democracy actually. Your letter 'as you are advised' is in reality an impertinent deception to suggest otherwise.
7. I submit the cancellation of public licence was because of my answer of my purpose for attendance being community media, not the provision or not of ID. That looks quite a dishonest rationale. My ID was provided as evidenced by the cancellation notice itself. Not to mention the menacing threats to arrest me, while standing over and around me simply trying to continue coverage of the rally. In fact it looks highly consistent with the facts that the threats to arrest me were a clumsy attempt to prevent coverage of the strong rally down Broadway.
8. Without doubt given my solicitor status and stated community media role the Termination of Licence Notice was demonstrably not "reasonable in all the circumstances". Again with due respect this is legal bluster and face saving.
9. Having said that, I accept that you are most likely offering in good faith "to withdraw this Notice on receipt of a written undertaking from you to comply with the reasonable inquiries and directions of the University's authorised officers in future". I do so undertake with this email correspondence and without prejudice as to what has occurred on 2nd May 07. On that we do disagree.
10. I am not so naive in this day an age not to accept the proper role of security especially for a vulnerable student body and diverse international concerns. That's accepted. My point remains upon presentation of the solicitor photo ID card that was the time for your over zealous and frankly anti publicity security staff to back off and let me proceed on my way. It could easily have been dealt with by correspondence to resolve any future concerns.
In conclusion Professor, I do believe the USYD remains quite exposed to the claim of staff seeking to constrain public reportage of a potentially very embarrassing student rally (which actually got minimal coverage hence my interest to provide community media profile) some 2 weeks before the highly sensitive federal budget. That we submit is the awkward subtext you cannot avoid.
On the other hand it would be somewhat foolish in diplomatic terms to not acknowledge that since November 24 2007 we do indeed live in somewhat kinder times in terms of debate and dissent. At least that's my provisional view. May it continue to consolidate.
I have submitted to your general counsel an estimate of my legal time/costs in seeking to have what we say is a wrongful termination of licence reversed, and unresponsiveness for a good 6 months in the critical pre federal election period. I press that modest estimate with the University (eg a gratuity/no admission of wrongdoing on your part), to cover my time and effort. In this way I would be willing to withdraw my complaint to the NSW Ombudsman for the perceived legal injury and embarrassment caused in the course of our community media work, as well as the approximately 6 hours now of legal time drafting and settling correspondence about this issue.
Your continuing ban on my attendance at the campus is noted which will take same into its 7th month and to my mind compounds the potential quantum of my legal compensation including via the Ombudsman's office.
Please do not hesitate to contact the writer on tel. .......or 0410 558838 to discuss any of the matters above, or by return email (note updated server address).
Yours faithfully,
Tom McLoughlin, solicitor/editor www.sydneyalternativemedia.com


Posted by editor at 11:24 AM EADT
Updated: Friday, 4 April 2008 7:07 PM NZT

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