Derek Wilding, Centre for Media Transition, University of Technology Sydney
Tim Dwyer, Department of Media and Communications, University of Sydney
A nationwide campaign by all major media groups has broken new ground in efforts to fight restrictions on media freedom in Australia.
On 21 October, the front page of major newspapers including The Australian, The Sydney Morning Herald, The Daily Telegraph, The Age and the Herald Sun gave way to blacked out text representing the obstacles faced by journalists in this country.
Articles on government secrecy and harsh media laws featured in the print and online editions of Australia’s newspapers, while broadcasters ran advertisements with a similar theme. Australia’s media is asking: ‘When government keeps the truth from you, what are they covering up?’
The trigger for the campaign
The industry group behind this campaign, Australia’s Right to Know, has been active for over a decade and regularly makes submissions to government reviews, arguing for law reform and changes to policy that might assist in newsgathering. But two events in June this year triggered this coordinated and unprecedented attack on the federal government. Both involved raids by the Australian Federal Police (AFP) on journalists.
The first raid was on the home of Annika Smethurst, a journalist with News Corp, over an article from April 2018 about government plans to give the Australian Signals Directorate (an intelligence agency) additional powers to spy on Australian citizens.
The second was an AFP raid on the headquarters of the public service broadcaster, the Australian Broadcasting Corporation (ABC) in Sydney. This was over articles written two years earlier by two ABC journalists about the activities of Australian special forces in Afghanistan between 2009 and 2013.
In neither case has there been any evidence presented of how the actions of these journalists might have endangered anyone or compromised national security.
The background – just how restrictive are Australia’s laws?
While Australia is a democratic country with fiercely independent news media, it has no explicit constitutional guarantee of free speech and no bill of rights. The High Court of Australia has found there to be an implied constitutional freedom of political communication, but it is narrow in scope. There are some legal principles, including aspects of the common law, which help to protect free speech, but there is nothing that approaches the First Amendment to the US Constitution.
A mass of statutory and common law restrictions on speech operate against this relatively weak protection of speech. Defamation law (both statutory and common law) rivals national security legislation in limiting public interest journalism. Australia has no effective threshold test for ‘serious harm’ such as exists in the UK, while the defences to defamation are notoriously difficult to apply – even in cases of important, public interest journalism.
Defamation reform, improvement to freedom of information laws and an overhaul of other restrictions such as the use of court suppression orders are part of the current campaign by Australia’s Right to Know. But national security laws which criminalise journalism are undoubtedly at the forefront of the current action.
So many of these laws fail to provide adequate safeguards for journalists. And while it’s important to understand that in the mid-2000s Australia really did need improved laws to protect its citizens against terrorism, successive Australian governments have added to the pool of security legislation in wave after wave of legislative amendments. It’s the cumulative effect of these waves of ‘reform’ that the industry is now reacting against.
After the AFP raids, the government initiated an inquiry by the Parliamentary Joint Committee on Intelligence and Security to examine the impact of the law on journalism (https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/FreedomofthePress.) A separate inquiry with a similar theme was established by Australia’s Senate (https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Environment_and_Communications/PressFreedom) shortly afterwards. Australia’s media companies and a host of civil society organisations made forceful submissions to these inquiries. However, both are yet to report. To date, the only real development is that the Attorney-General has announced that any decision to prosecute journalists cannot be taken without his consent (https://www.abc.net.au/news/2019-09-30/attorney-general-grants-journalists-limited-protection/11560888). Not surprisingly, this has not addressed the concerns raised by many about government intrusion on media freedoms.
In the case of the PJCIS inquiry, the Morrison Government has asked the Committee to consider
whether any and if so, what changes could be made to the procedures and thresholds for the exercise of those powers in relation to journalists and media organisations to better balance the need for press freedom with the need for law enforcement and intelligence agencies to investigate serious offending and obtain intelligence on security threats.
The hearings were dominated by the theme of the fairly widely reported culture of secrecy that pervades Australian governments. All the media organisations predictably argued that they should be free to report government and politics without the ad nauseum threats of criminal offences being touted over them or their whistle-blowers. Both commercial and publicly funded media organisations are on a unity ticket when it comes to a need to have a legal framework which allows them to do journalistic work unhindered. Whether or not this committee is able to reach a similar position, recognising the legitimate role of the media to investigate, remains to be seen. The opposition Labor party is on the record as supporting an exemption from prosecution for public interest journalism.
The Centre for Media Transition at University of Technology Sydney made a strong case for media reform in connection with the Journalism Information Warrant Scheme, noting:
While we appreciate that journalist information warrants were introduced as a means of addressing concerns over press freedom, we think these protections are ineffective. Taken together, the various laws that allow access to journalists’ confidential information or which preclude access to information about government activities have compromised a core requirement of Australian journalism: that confidences given in the course of journalistic work will be protected.
Expressing a different perspective on the situation, one prominent journalist recently noted, ‘A real reason why we do not have a charter or bill of rights are the ceaseless and frantic campaigns against them by News Corp’.
In a recent policy submission, researchers Johan Lidberg from Monash University and Denis Muller from the University of Melbourne contrasted the approach in Australia with that in the other members of ‘Five Eyes’ security community (the US, the UK, Canada and New Zealand):
The key question that needs to be posed is why Australia is the only country among the Five Eyes intelligence-sharing community, and indeed among mature liberal democratic countries, that see a need to equip its security and intelligence agencies with powers that extend to issuing and executing search warrants against individual journalists and media organisations justified by hunting down public interest whistleblowers in the name of national security?
As many continue to ask questions such as these, the campaign in some form is likely to continue until the Australian Parliament takes action to address some of the most restrictive aspects of the laws that damage media freedom.
Meanwhile, the journalists and their employers who were subjected to the AFP raids in June are still waiting to hear whether they will be prosecuted for their reporting.
 See, for example: submission to the Parliamentary Joint Committee on Intelligence and Security (file:///C:/Users/122895/Downloads/Sub%2023%20-%20Australia’s%20Right%20to%20Know.pdf); submission on the Review of Model Defamation Provisions (https://www.justice.nsw.gov.au/justicepolicy/Documents/review-model-defamation-provisions/defamation-submission-aust-right-to-know.pdf)
 For an overview of the legal protection of freedom of speech in Australia, see Chapter 4 of the Australia Law Reform Commission’s Traditional Rights and Freedoms—Encroachments by Commonwealth Laws (ALRC Report 129), March 2016. https://www.alrc.gov.au/publication/traditional-rights-and-freedoms-encroachments-by-commonwealth-laws-alrc-report-129/
 See the following for an analysis of the waves of national security legislation since 2001: Katharine Gelber, ‘When are Restrictions on Speech Justified in the War on Terror?’ in Andrew Lynch, Edwina MacDonald and George Williams (eds), Law and Liberty in the War on Terror (Federation Press, 2007); George Williams, ‘Does Australia Need New Anti-Terror Laws?’ (Speech delivered at the 2014 Annual Lionel Murphy memorial Lecture, Australian National University, Canberra, 22 October 2014) <https://law.anu.edu.au/event/lecture/2014-annual-lionel-murphy-memorial-lecture>; Keiran Hardy and George Williams, ‘Free Speech and Counter-Terrorism in Australia’, in Ian Cram (ed) Extremism, Free Speech and Counter-Terrorism Law and Policy: International and Comparative Perspectives (Routledge, 2018).
 See page 3 of the CMT submission: file:///C:/Users/122895/Downloads/Sub%2031%20-%20Centre%20for%20Media%20Transition%20(2).pdf.
 David Marr, journalist with Guardian Australia, Insiders, ABC TV, 27 October 2019 https://www.abc.net.au/insiders/sunday-27-october-full-program/11643948.
 See page 2 of the submission file:///C:/Users/122895/Downloads/Sub%2029%20-%20Associate%20Professor%20Johan%20Lidberg%20and%20Dr%20Denis%20Muller.pdf.