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The big chilling effect

Jock Cheetham

A notice popped up on my screen: ‘Want to stay on top of the expanding surveillance state? Fill in your details below’. The Crikey website was selling me a free trial based on an issue that should concern all Australians, but most know nothing about.

I was reading about the Australian Cyber Conference (CyberCon) held in Melbourne in October this year, which dis-invited (censored) two speakers who are well-known advocates for whistleblowers, Dr Suelette Dreyfus from the University of Melbourne and Thomas Drake. The conference is ultimately controlled by the Australian Signals Directorate, which apparently finds whistleblowing unacceptable.

The Australian Signals Directorate is involved in one of the biggest media freedom issues of this year, the Australian Federal Police raids on journalists in June. The first of these was on News Corp journalist Annika Smethurst, whose underwear drawers were famously inspected, along with the rest of her home, computers and phone. Her crime? Smethurst reported on a plan for the Australian Signals Directorate to spy on and target Australians within Australia.

The ABC was raided the next day. An open letter by Media, Entertainment and Arts Alliance (MEAA) from journalists called the raids a ‘grave threat to press freedom in Australia’, adding that investigative journalism ‘cannot survive without the courage of whistleblowers’. In this climate, ‘truth-telling is being punished’.

The big issues this year, the journalists note, include the raids, a raft of national security laws, and the prosecution of whistleblowers Richard Boyle, David McBride and Witness K. The limits placed on Australia’s media freedom are increasing and the warnings of recent years about the dangers ahead are now being realised. So what can be done about Australia’s slide into a national security state?

The June raids on the ABC’s Sydney headquarters were related to The Afghan Files, stories which exposed allegations of unlawful killings by Australian military forces. The leaks to ABC journalists allegedly came from David William McBride, who has been charged. McBride said in The New Daily: ‘It’s a complex case, but it’s also a simple case. It comes down to: At what point are you obliged to basically rebel against the government?’

Apparently, people rebel against the Australian Government at their peril. The Prime Minister, Scott Morrison, said in response to the raid on Smethurst’s home: ‘It never troubles me that our laws are being upheld.’  

But what if the law is the problem? That’s certainly the position of a range of bodies speaking on behalf of journalism, including its union. In its 2019 press freedom report, The Public Right to Know, the MEAA argued that ‘in the era of overwhelming secrecy and mass surveillance, whistleblowers are paying higher prices than ever for speaking out while journalists and media organisations navigate a minefield of new laws that criminalise more and more types of speech and publication’. The union calls for urgent reforms to disclosure laws.

Such arguments have been highlighted in the parliamentary inquiry created when the outcry over the raids grew raucous enough, the Inquiry into the Impact of the Exercise of Law Enforcement and Intelligence Powers on the Freedom of the Press. The Australian Human Rights Commission’s (AHRC) submission noted that freedom of the press is guaranteed in article 19 of the International Covenant on Civil and Political Rights and that ‘search and seizure powers in relation to investigations … [and] prosecution for breaches of secrecy provisions … involve the limitation of the right protected by article 19’.

The AHRC also highlights the chilling effect of such criminal laws, a point reinforced from the media itself. According to a senior editorial figure at the ABC quoted anonymously in the Alliance for Journalists’ Freedom Press Freedom in Australia White Paper, published in May, we are witnessing the ‘criminalisation of journalism… There are stories that are going untold because we are concerned about putting our journalists in harm’s way’, including being jailed.

And so it is for journalists’ sources, says Mark Maley, an ABC News manager: ‘The consequences of being outed as a source are potentially criminal… There are stories that should have been told and have not been told because of a combination of the ASIO Act, the EFI Act and metadata laws. That’s the chilling effect in practice.’

Last year, the federal government passed laws such as the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (EFI Act). Michaela Whitbourn wrote in The Sydney Morning Herald that in enacting the law ’the government introduced a general secrecy offence that allows anyone who passes on classified information received from a federal public servant – including publishing it – to be jailed for up to five years’.  

Australian law does not provide clear and unambiguous protection for freedom of the press, or freedom of speech more generally, Whitbourn noted, unlike those enshrined in the US constitution, or the superior public interest defences in the US and UK. But Australia is excelling in one area: ‘Since the 9/11 attacks, Australia has enacted 75 laws related to terrorism.’

The government also passed the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (Assistance and Access Act), some say in a rush. The Alliance for Journalists’ Freedom (AJF) report noted: ‘The passage of the Assistance and Access Act ... gives law enforcement agencies a range of new powers to access journalists’ confidential communications with their sources’.

Of course, the government and its agencies already had a lot of power before last year’s acts. The UTS-based Centre for Media Transition’s submission to the inquiry commented mainly on the journalism information warrants scheme introduced by the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (the metadata law). The scheme means law enforcement agencies can easily get a warrant to access telecommunications data to identify a journalist's confidential source. The Centre recommends that the scheme should be ‘amended to prohibit access to journalist’s confidential information except where there is a serious threat to Australia’s national security’. The MEAA agrees, noting: ‘The metadata retention regime is a particular concern for journalists who are ethically obliged to protect the identity of confidential sources.’

In July, Dr Julie Posetti compared Australia’s press freedoms to international standards as set out in the UNESCO study she authored, Protecting Journalism Sources in the Digital Age. Australia meets just one of the 11 principles that should be met, she said.

The UNESCO study noted: ‘In 2015 the Federal Government classified information pertaining to asylum seekers on national security grounds. On the same basis, in mid-2015, the Australian Government criminalised the leaking of such information.’ The MEAA report concurs: ‘We find these deliberate attempts to suppress reporting about the treatment of asylum seekers and the conditions of the centres to be an affront to press freedom.’ Posetti said there was ‘barely any light between Labor and the Coalition on these issues, and there is an opportunity for differentiation’.

The AJF includes among its seven recommendation one to bolster shield laws. It argues for an exception for journalists, instead of a defence, because ‘an offence means that journalists bear the heavy burden of proving that the defence is applicable’.

All that is before we get to the ongoing and age-old debate about the impact of defamation laws in Australia. The MEAA addresses the issue, as does the AJF, which stated: ‘Australia’s existing defamation legislation should be supplemented by the introduction of a “public interest defence” modelled on that available under UK defamation legislation’. All these issues are raised by the Australia’s Right to Know coalition of media organisations, which also wants to see freedom of information law reform. 

Court suppression orders are another critical area. ‘The George Pell trials highlighted the suppression order issue – both for why orders are sometimes needed and also why many judges are misusing the system either to punish the media or to placate the powerful – many orders are simply nonsensical and poorly defined’, the MEAA report noted. And the AJF report said: ‘Pell’s trial was extensively reported overseas on sites that any Australian with an internet connection could access. The overall effectiveness of suppression orders in a modern and open society like Australia should also be further explored.’

Other important media freedom issues include the crisis in local journalism. The Australian Competition and Consumer Commission’s Digital Platforms Inquiry found ‘a significant fall in the number of articles published covering local government, local court, health and science issues during the past 15 years’. It’s hard to have a free press without any press at all, which the inquiry found was the case in 21 local government areas that lacked a local or regional newspaper, of which 16 were in regional Australia. One response to this situation is greater support for the ABC across all local bureaux, in addition to responses that assist commercial media.

On a brighter side, the digital disruption that has demolished a lot of the mainstream media’s sources of revenue is paralleled by the huge boom in online diversity. In this environment, The Juice Media can make a searing satirical analysis video about the East Timor bugging case involving Witness K and his lawyer, generating 750,000 YouTube views and 16,000 Facebook likes. Even a mum and dad operation (literally) working out of their lounge-room can attract funding, huge audiences and government badgering. But outlets such as this analyse existing information rather than break new information and ultimately lack the punch of mainstream media pursuing an issue collectively.

All this takes place in a global context, one which, the MEAA points out, allows impunity for murdered journalists (930 journalists from 2006 to 2016), with a one-in-10 conviction rate. The MEAA highlights nine Australian journalists murdered, including Juanita Nielsen, the Balibo Five and Roger East.

Australia is being scrutinised internationally for its lapses in media freedom. In 2014, the Washington Post examined whether Australia was becoming a national security state. After the AFP raids this year, The New Republic wrote ‘when it comes to press freedom … Australia is a dismal backwater’. And Reporters Without Borders ranks the country 21, down two spots this year, noting: ‘Australia has good public media but the concentration of media ownership is one of the highest in the world … independent investigative reporters and whistle-blowers face draconian legislation.’

The MEAA’s 2019 report concluded: ‘It’s time to push back this tide of secrecy, intimidation and harassment – not least because it is getting dangerously out of control.’ Pushing back means campaigning to change the laws. Supporting a strong ABC and measures that buttress public interest journalism remain vital. Understanding the threats that are emerging requires us to consider the national security state not just as a protector, but as a potential centre of power not always acting in our interests, but rather sometimes its own.


Jock Cheetham is a senior lecturer in journalism at Charles Sturt University, Bathurst, who worked at The Sydney Morning Herald and Fairfax Media for 13 years, and was a Walkley Award finalist.

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