Journalists need legal protections if they are to do the work needed for a democracy to function and hold governments to account. By Peter Greste.

The fight for media freedom

A bald, middle-aged man watches a person speak by his side.
Alliance for Journalists’ Freedom director Peter Greste.
Credit: AAP Image / Joel Carrett

The robo-debt debacle told us much about the inner workings of government and the public service, but it also exposed a thing or two about the role the media plays. It was only the latest in a long list of failures of government exposed by the diligent work of those journalists who fought hard to bypass information gatekeepers, and to hold decision-makers to account.

Our government is engineered to control the flow of information. This undermines the principles of openness and transparency that are supposed to underpin any functioning democracy: from the departmental media advisers who filter and answer journalists’ questions, to legislation criminalising the leaking and receiving of some government information, and weaknesses in the freedom of information legislation.

Australia might not be unique in its management of nosy reporters, but it is an outlier. Since 9/11, politicians here have passed at least 92 separate pieces of national security legislation – more than any other country on Earth. Among them are laws that make it an offence for some public servants to speak to journalists without authorisation, and that make it all but impossible for journalists to protect their sources. We are also the only liberal democracy in the world without any broad legislated protection for media freedom. There is precious little in our statutes – and precious little in our constitution – that recognises and protects it.

These problems don’t end with the government. The robo-debt inquiry also revealed that some compliant journalists allowed themselves to become propagandists for the government, lapping up convenient drops about “welfare cheats” that helped spin the official line. This compliance can never be good in a world where the journalist’s first responsibility is to question and challenge authority.

The situation is so serious that in 2019, after the Australian Federal Police raided journalists from two news organisations, The New York Times suggested, “Australia may well be the world’s most secretive democracy”.

That is why my organisation – the Alliance for Journalists’ Freedom – is proposing a suite of reforms, starting with a Media Freedom Act designed to enshrine the principle in law. As essential as that is, we also understand that if journalists’ rights are to be recognised, the industry must better articulate and uphold its responsibilities.

The MFA would work in four crucial ways.

First, it would set out objectives designed to protect media freedom as vital to our democracy. That also means protecting the right of everyone to receive information, comment and analysis about the world around us in general, and our governments in particular.

Second, it would require parliament to consider those objectives and rights in any new legislation that could reasonably be seen as intruding on the work of journalists. That doesn’t mean media freedom trumps everything else – there will always be secrets that would be dangerous to publish and should be off-limits – but the legislation would require the parliament to look for ways to reduce or eliminate any provisions that are incompatible with those principles. In cases where that isn’t possible, there needs to be an explanation about why those provisions take precedence over the public interest in media freedom. The act would also require the courts to interpret and apply existing legislation in a way that is compatible with its objectives.

Third, the act would change the way we define who it should be protecting. Traditionally, the law has described a journalist as someone “in the profession or occupation” of publishing news and current affairs. But in a digital world, where anyone with a smartphone is capable of producing news, that approach is dangerously restrictive. For instance, the robo-debt royal commissioner, Catherine Holmes, SC, singled out several people for praise who covered the hearings on Twitter.

Instead, the act would define journalism as a process – a systematic way of gathering, organising and presenting information to the public, according to generally accepted professional standards or codes of practice. That approach recognises that it doesn’t matter who produces the news, as long as it is reliable, high-quality content based on longstanding journalistic principles. That way we can separate good, ethical journalism from everything else that might look like journalism, but simply doesn’t make the grade.

Here is where the industry has an opportunity to respond. Unlike other professionals such as accountants, surgeons or engineers, there is no formal association that recognises journalism practitioners who meet the required standards and practices. There is a system of self-regulation that handles complaints, but it is widely regarded as slow, ineffective and outdated. (I am a member of the Australian Press Council, which handles complaints about publications, including The Saturday Paper.)

A professional association would give membership to anyone who is able to show they understand journalism ethics and standards, and the relevant law. Prospective members could also be required to present a portfolio of work to show they consistently apply them. Members could badge their content to distinguish it from everything else online, in a way that would help improve public trust. Social media companies could boost badged work in online rankings to draw more readership and potentially more revenue.

The association would hold its members to account, hearing complaints and sanctioning those who fail in their obligations.

Crucially, membership of the association must be entirely voluntary. Nobody should be restricted from publishing if they aren’t a part of that system. Rather, our act is designed to acknowledge and protect any work that is done to the standards already listed in most news organisations’ codes of practice. Professional membership would simply help the courts identify people who understand and apply them.

Fourth and finally, our act would introduce the concept of contestable warrants. Right now, if the Federal Police or the Australian Security Intelligence Organisation (ASIO) applies for a search warrant to investigate a journalist’s data, they only need to show that there are reasonable grounds for suspecting it contains evidence of a crime. The journalist has no opportunity to contest the warrant, and certainly no chance to argue that there is an overriding public interest in either publishing the material or protecting their source.

The act would recognise that anyone who met the standard deserves a court hearing about the public interest before a warrant is even issued. It would be up to the investigating agency seeking the warrant to show the court their investigation is more important than the public’s right to know, or a journalist’s right to protect their sources.

We don’t believe journalists should have an absolute right to publish whatever they want. They are as capable of behaving badly and abusing their positions as anyone else. But they should have a chance to argue their case before the police or security services get their hands on data and damage is done.

Of course, these reforms alone won’t solve all the problems in Australian news, nor would things improve overnight. But they would provide two crucial things that are presently missing.

First, they would introduce the chance to argue in favour of media freedom throughout the legislative and judicial processes, and in a way that isn’t yet possible. And second, they would provide a powerful incentive for journalists themselves to lift their game and recover some degree of public trust.

If we can achieve both, our democracy will be much better off.

This article was first published in the print edition of The Saturday Paper on July 29, 2023 as "Freedom writers".

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