In August, the Parliamentary Joint Committee on Immigration and Security (PJCIS) released its long-awaited report on the impact of the exercise of law enforcement and intelligence powers on the freedom of the press in Australia. The PJCIS inquiry, when it began in July 2019, was intended to be a sort of pressure release, an airing of grievances in the wake of the Australian Federal Police raids on the ABC and News Corp journalist Annika Smethurst. Collective horror had bound the Australian media in a moment of solidarity, and the public was similarly horrified by the norm-shattering raids. But owing to last minute submissions, and the COVID-19 pandemic, the wait for any report from the inquiry stretched out for more than a year.
Also waiting was ABC journalist Dan Oakes, whose reporting of the “Afghan Files”, alongside Samuel Clark, triggered the raid on the ABC. For more than 750 days, the threat of prosecution hung over Oakes – first branded with the amorphous title “suspect”, before it emerged the AFP had referred a brief to the Commonwealth Department of Public Prosecutions (CDPP) outlining three potential criminal charges against him.
No journalist holds any illusions that reporting on the powerful comes without risk – but the rationale for why the government chose to hound Oakes, a journalist working at its own public broadcaster, over his reporting on credible allegations that war crimes were perpetrated by Australian troops has never been explained. The public interest case was always clear, yet was only accepted by the government in October this year when the CDPP announced it would not pursue Oakes’ prosecution, despite “reasonable prospects” of convictions on two of the charges.
The PJCIS report, when it did arrive, offered 16 recommendations, including reforms around journalist information warrants and the expansion of the role of Public Interest Advocates to review all such warrants. None of these will solve the fundamental issue that Oakes’ case, and his absolution, drew into such sharp relief.
Even if every one of the PJCIS recommendations are accepted by the Australian Government, which is yet to acknowledge or respond to the report, Australia will still have no federal legislated protection ensuring a free press. There could be more opportunities for media organisations to appeal, more checks and balances, more paper trails, but in the end the decision of what is and isn’t in the public interest remains firmly in the hands of the government. In a country that purports to value press freedom, this power asymmetry is not viable.
The more than 82 pieces of national security legislation passed into law in Australia since September 11, 2001, act now as a thumb on the scale. As Professor George Williams, Dean of Law at the University of New South Wales, wrote last year: “It comes as no surprise that the Australian Federal Police has begun to raid journalists ... Our elected representatives have armed the police and intelligence agencies with formidable powers that can be used against the media. They have simply begun to use them.”
However, to view this deluge of national security laws in isolation ignores how they fit into a growing tessellation of threats to independent journalism in Australia. They sit alongside our country’s strict and uneven defamation laws, weak whistleblower protections and an increasingly politicised freedom of information regime, wherein some departments view the public’s access to information as a privilege rather than a right outlined in law.
Working as an editor offers something of a unique perspective on the so-called “chilling effect” many journalists have spoken about in relation to the accumulation of national security laws. I have seen stories, important stories the public should know about, stymied by these laws. But I’ve also seen vitally important stories killed off by defamation threats, terrified whistleblowers and departments stonewalling on the release of information that is clearly in the public interest.
The risk that these stories will never be published is only heightened when there are fewer journalists working in an increasingly concentrated media. Ours is now an “oligarchic media model”, according to Reporters Without Borders, which this year dropped Australia five places in its World Press Freedom rankings. Alongside the supremacy of News Corp and Nine, the AFP raids were cited as a key reason for the slip: “‘National security,’ the grounds given for these raids, is used to intimidate investigative reporters,” the organisation wrote in a brutally efficient assessment.
It has been less of a dramatic shift than a decay, slow but noticeable. According to a May 2019 survey from the Media Entertainment and Arts Alliance, 90 per cent of Australians think the state of our press freedom has deteriorated in the last decade, and 85 per cent of journalists agree.
For the most part, the government has baulked at calls for serious reform in the service of a free press. Its greatest concession has been a directive from Attorney-General Christian Porter that any prosecution of a journalist must be signed off by him personally. But this is a gesture that only serves to reinforce the status quo. A press whose freedom is determined by the subjective judgement of one person is not free.
In May 2019, just a month before the raids on Annika Smethurst and the ABC, the Alliance for Journalists’ Freedom published a white paper calling for the introduction of a Media Freedom Act. Such an act would enshrine the principle of freedom of the press in Australian law, enhance protections for whistleblowers and shield journalists from being forced to reveal their sources.
A Media Freedom Act could serve to rebalance the power dynamic between journalists and government. It would allow the Australian media to serve its vital purpose as a check on those we elect to lead us.
“Press freedom is not absolute,” the Home Affairs department was quick to note in a submission to the PJCIS inquiry. “Journalists, like all Australians, are subject to the law of the land.” This is not in dispute. Neither journalists nor media organisations have ever asked for sweeping immunity from the law, merely adequate protections from the threat of criminal prosecution simply for doing their job – and that the government acknowledge it is often not a neutral arbiter of what is in the public interest.
Maddison Connaughton is the editor of The Saturday Paper.