On Monday, February 27, media executives, editors and assorted interested parties will descend on Canberra for a journalists’ jamboree, otherwise known as a media roundtable, hosted by Attorney-General Mark Dreyfus.
Oddly enough, for a discussion about press freedom, it will be held under the Chatham House Rule, which means those attending can use any information they receive but can’t identify the source. The guest list has been drawn up by the A-G’s department and is not publicly known, but includes representatives of print, radio, television and online news publications, and possibly the top brass at the journalists’ union and the Australian Press Council.
No one has much of an idea about the day’s agenda and none of the media lawyers we contacted – who struggle with press freedom on a daily basis – have been invited.
In announcing Monday’s gathering, Dreyfus pointed to two parliamentary reports: the parliamentary joint committee on intelligence and security (PJCIS) report of August 2020 on the impact of law enforcement and intelligence powers on press freedom, and the May 2021 report from the senate standing committee on environment and communications on freedom of the press.
Both of these came about in response to the Australian Federal Police (AFP) raids on the home of journalist Annika Smethurst and on the ABC’s Ultimo headquarters.
The PJCIS made 16 recommendations, mostly tinkering at the edges: a beefed-up role for public interest advocates who deal with journalists’ information warrants; the need for “cultural change” at security agencies; and greater transparency about the number of covert and overt warrants obtained by enforcement agencies.
Recommendation 8 gave rise to the most interesting possibility: the creation of a mechanism for journalists to consult informally with security agencies about public interest news stories.
Britain has such an arrangement, whereby the media can choose to seek advice on national security stories from an agency at arm’s length from the government.
Significantly, the PJCIS report was non-committal on whether national security, secrecy and penalties of imprisonment had a “chilling effect” on journalism. It rejected submissions that the arrangement allowing security agencies to collect reporters’ metadata without notification should be scrapped.
The chilling effect works in mysterious ways – it must have played a part in the ABC’s decision, in February 2018, to hand back to the government a filing cabinet full of government documents and potentially interesting news breaks.
The documents turned up at a second-hand furniture store where old departmental filing cabinets went on sale in Canberra. In this case, two of the cabinets were jam-packed with AUSTEO secrets (meaning they are to be seen by Australian eyes only).
Among a host of other details, the files revealed that during the previous five years the federal police had lost nearly 400 national security files.
Barely had the ABC begun reporting the contents of this treasure trove than the government waved its national security card and the national broadcaster obligingly returned all the documents.
The senate report on press freedom, chaired by Senator Sarah Hanson-Young, made recommendations on freedom of information, federal secrecy offences, whistleblower legislation, shield laws for journalists and their sources, and warrants that give agencies access to journalists’ information.
Dreyfus supported the findings, in general terms, but added that more needs to be done.
In relation to the AFP’s Smethurst raid, the High Court said the warrant was illegal, but not illegal enough to stop the AFP keeping the discovered material on a USB stick – in other words, material unlawfully obtained from a journalist could be retained and used.
Smethurst had broken a story on discussions within government about new powers for the Australian Signals Directorate to spy on Australian citizens – a news report the security agencies believed was not in the public interest.
The raid on the ABC sought to gather evidence about the background to and the sources of information used by the broadcaster for a series of reports called “The Afghan Files”.
Justice Wendy Abraham of the Federal Court rejected the ABC’s challenge to that warrant. The ABC said it would not appeal the decision as “we don’t believe we can litigate our way to reforming fundamentally bad laws”.
Right now, a host of inquiries has been initiated by Dreyfus. Amendments to the Public Interest Disclosure (PID) Act were introduced late last year, providing for the commencement of the national anti-corruption commission. A senate committee is to report by March 14.
Further whistleblower protection amendments are foreshadowed for this year to give better protections to whistleblowers in line with the Moss Review of 2016, possibly including a whistleblower protection commissioner.
David McBride, who blew the whistle to the ABC on alleged war crimes by Australian forces in Afghanistan, the reporting of which was partly responsible for the Brereton report, was forced to withdraw his application for PID protection after the Commonwealth claimed public interest immunity in relation to expert testimony.
Richard Boyle, the tax office whistleblower, also applied for PID immunity and is waiting on a decision from the District Court of South Australia.
The prosecution of Bernard Collaery, who revealed to ABC journalists Australia’s eavesdropping on the government of Timor-Leste during sea-boundary negotiations, was dropped by the attorney-general in July 2022.
Collaery’s client, Witness K, had already pleaded guilty to an offence under the Intelligence Services Act and was given a suspended sentence. These whistleblower cases involved the publication of accurate public interest news – often prompting further investigations and inquiries.
Commonwealth secrecy offences and the National Security Information (Criminal and Civil Proceedings) Act 2004 are both under review at the moment – two areas that impact adversely on public interest news-gathering and reporting.
The NSI Act was used to wrap the government’s proceedings against Collaery and Witness K in secrecy – to the consternation and outrage of many. It was also used in the Ben Roberts-Smith case to close reporting of aspects of the trial.
Grant Donaldson, SC, the Independent National Security Legislation Monitor, is reviewing “the operation and effectiveness of the NSI Act ... [to] consider how the Commonwealth can better balance the vital importance of open justice with the essential need to protect national security”.
The NSI legislation also was used in what is known as the “Alan Johns” case, a pseudonym for a former intelligence officer who was prosecuted and jailed in complete secrecy. The Independent National Security Legislation Monitor said this should not have happened “and it should never happen again”.
Federal judges are only too eager to comply with Commonwealth applications for closed courts and secret evidence. The media, frankly, should be kicking up much more of a stink about it.
Just before Christmas last year Dreyfus announced a “comprehensive and overdue review of Commonwealth secrecy offences”.
In a media release, he said previous reviews had raised concerns about “the number, inconsistency, appropriateness and complexity of Commonwealth secrecy offences”. There are 11 general secrecy offences under Commonwealth law, 487 specific secrecy offences and more than 200 non-disclosure duties.
Since the 9/11 attacks in the United States, Australia has seen a maze of security-related enactments, confounding in their complexity and uncertainty. The definition of national security is far from clear, the available defences few and in most instances worthless, while the penalties are severe.
Among the restraints that affect public interest journalism are “off-limits reporting” under the NSI Act and the Australian Security Intelligence Organisation Act’s “special intelligence operations”; the criminalising of government leaks and leakers under the Criminal Code; injunctions and super injunctions brought by the government, namely the Securency bribery case; restrictions on reporting of terrorist acts; plus, of course, the metadata and anti-encryption regimes that allow the state to snoop on and monitor the work of journalists.
Dreyfus has announced the government has accepted all but one of the PJCIS recommendations to make the collection of metadata – including journalists’ metadata – more “transparent and with adequate safeguards”. The reforms were recommended in October 2020 and lay dormant on the Coalition’s watch.
There are other points, too, that Monday’s roundtable will need to consider.
One point is contempt charges against journalists and editors over reports of the Pell verdict. Dreyfus’s media release says: “Journalists should never face the prospect of being charged or even jailed just for doing their jobs.”
Then there is the torrent of court suppression orders that restrict reporting and open justice, which numbered more than 1000 nationwide last year.
There are the latest Federal Court rules that keep the details of new cases secret for weeks, even months – part of the judiciary’s ever-growing animosity towards the media.
There is also the ongoing question of what constitutes a journalist and what this definition means at law.
And of course, there is the terror of defamation, and the need for serious amendments that remove trip-wires for responsible journalism.
Related to that is the looming restraint on public interest reporting that would be a tort for serious invasions of privacy, foreshadowed by the attorney-general’s department this month.
This is a new reputational tort with remedies as long as your arm, including damages, injunctions and account of profits.
In the hands of the usual tribe of “reputation repair” lawyers, a privacy tort would be a picnic. Privacy litigation would replace defamation as the main game, as has happened in Britain. Injunctions could see important stories put in the deep freeze, never to thaw out in public.
Maybe this is all too much for an afternoon’s worth of jawboning by media executives and editors. It’s unlikely the limitations under which a “free press” in this country operates will be wound back in any hurry.
At its least, the roundtable may be a wake-up call for the media, which has been far too sleepy about protecting its patch as all these incursions and legal impediments have built up around it.
This article was first published in the print edition of The Saturday Paper on February 25, 2023 as "Pressing for freedom".
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