SPENCER ZIFCAK. Journalists, media freedom and the law.

Jul 12, 2019

The Australian Federal Police (AFP) raids on journalists from News Corporation and the ABC have caused very considerable community consternation. The fact that these raids occurred in the immediate aftermath of the recent election and within a day of each other served only to animate public concern. These events have prompted a re-appraisal of the state of media freedom in Australia. The AFP has defended its actions, journalists have been up in arms, media’s management has complained of intimidation, and the government has denied any responsibility. In their own way, each has responded understandably. The basic problem does not lie primarily with their actions. Instead, it is the law that is problematic. 

Principally as the consequence of the dramatic proliferation of counter-terrorism legislation, the civil liberties of Australians have been radically diminished. Media freedom has been similarly curtailed. It is time for a comprehensive review of counter-terrorism laws to be undertaken, particularly in so far has these have infringed upon press freedom. The greater the incursion is upon the rights and entitlements of journalists, the weaker the underpinnings of democracy become.  So, here are four illustrations of the journalistic freedoms at stake.

The first concerns relevant provisions of the Commonwealth Criminal Code 1995, introduced by amendments last year. Division 122 of the Code deals with the secrecy of governmental information. This creates a series of crimes related to the improper disclosure of ‘inherently harmful information’. The first of these crimes is well understood and accepted. It is a crime for a Commonwealth government official to disclose information classified as secret or top secret.

It is the second crime that should worry the media industry, not least because of the severity of its penalty. Here, a person, other than a Commonwealth official, commits an offence if he or she comes into possession of confidential information created, or dealt with, by a Commonwealth official and then communicates that information to an individual or organisation outside government. The kind of information concerned is information that, among other things, has been classified as secret, or damages the security or defence of Australia.

In other words, if classified information has been communicated to a journalist by a Commonwealth officer, and the journalist or their media organisation elects to publish a related article, incorporating or quoting that information, the journalist courts a term of imprisonment of five years. The key problem here is that the classification of governmental information as secret or top secret is essentially arbitrary. So, the more broadly that secrecy is defined, the wider the scope of the crime of disclosure becomes.

Division 122 does contain a journalistic defence however. It is a defence to prosecution if, in disclosing the information, a journalist is engaged in reporting the news, presenting current affairs or expressing editorial content; and the journalist reasonably believes that the disclosure is in the public interest.

The defence is fragile however. That is because the meaning of the terms ‘reasonable belief’, and ‘public interest’ is inherently vague. And it is because the onus of proof as to the existence of a reasonable belief and the actuality of a demonstrable public interest lies upon the journalist and not the other way around. Any sensible journalist will think twice about risking court and prison upon such an uncertain legal foundation.

The second example concerns the terms of the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018. This legislation provides a new array of ways in which intelligence and law enforcement agencies may seek to uncover the identity of journalists’ sources. An intelligence or law enforcement agency can issue a notice to a ‘designated communication provider’ requiring that provider to assist with a criminal investigation. Every major media organisation in the country may fall within the definition of a communication provider as may any individual journalist.

The definition of the assistance that could be required is very broad. It may include, for example, the removal of the electronic protection of data by such means as encryption, the provision of technical information governing access to data, and the facilitation of access to electronic devices.

These and similar powers are catalysed by the issue of ‘computer access warrants’. Such warrants permit intelligence and law enforcement officers to intercept any communication passing over a telecommunications system. To enable interception, the warrants may authorise the examination and use of any individual’s or organisation’s computer to access relevant data.

Further, and remarkably, in order to access and use relevant data, the authorities may add, copy, alter or delete computerised data and any electronic communication in transit. If necessary, agency officials may remove a computer from premises for the purpose of achieving the purposes set down in the warrant. The Act provides further that if anything has been done to an individual’s or agency’s computer, the investigating authority may take any steps reasonably necessary to conceal the fact that the targeted device has been tampered with. It was a warrant of precisely this kind that was issued to the ABC in the recent search and seizure raid upon it.

The danger inherent in such powers for the confidentiality of journalistic sources is self-evident. From this point onward journalists cannot with any confidence assure their sources that their identity will not be disclosed.

The third example relates to the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015, better known as the ‘metadata’ law. Pursuant to this law, telecommunication service providers are required to keep telecommunications data of various kinds for a period of two years. The data to be kept includes the name and address of service subscribers; contact information; payment information; identifiers of the account from which, and to which, a communication has been sent; the date and time of every communication; and the types of communication and service utlilised. Access to the content of communications, however, is excluded.

A dizzying array of law enforcement agencies may request the information to which service providers must provide access. Fifteen classes of agency are so authorized. These include the AFP; State Police Forces; ASIC; the ACCC; and all State Anti-Corruption Commissions. With one significant exception, a warrant is not required before a demand for metadata relating to a person is made.

The exception is for journalists. In considering whether to approve the issue of a journalist information warrant, the Attorney-General must be satisfied that the public interest in issuing the warrant outweighs the public interest in protecting the confidentiality of a journalistic source. In the current national security focused environment, and given the identity of the recent occupants of the office of Attorney-General, the Attorney-General’s discretion in this respect offers next to no protection at all.

The problems with metadata legislation of this kind are self-evident. While the content of communications may not be accessed, metadata itself can provide a detailed picture of a person’s private life. Law enforcement agencies can with alacrity paint a person’s individual portrait from their phone calls, email, online chat, credit card purchases, web searches, identified associates, and physical location. The pattern of a journalist’s communications may very readily serve to identify their sources.

The cardinal defect in the legislation is the absence of a legislative requirement for enforcement agencies to obtain a journalistic access warrant, or indeed any warrant, the justification for which is independently and impartially assessed by a Justice of a superior court whenever metadata is sought. In the ABC raid, the warrant was issued by a court registrar. This is hopelessly unsatisfactory.

Finally, The National Security Amendment Act (No.1) 2015, prohibits the disclosure by any person of information that relates to a special intelligence operation. S.35P is as follows.

35P. Unauthorized disclosure of information

(1)   A person commits and offence if:

  1. The person discloses information; and
  2. The information relates to a special intelligence operation.

Penalty: Imprisonment for 5 years.

This provision can slam the door on investigative journalism. Press freedom exists in part to ensure that government agencies can be held to account for their actions. The accountability principle applies to intelligence organizations no less than to any other entity in the machinery of government. S.35P is a concerted attempt to undermine it.

Journalists and whistle-blowers often work in tandem to obtain and expose information about governmental corruption and malfeasance. This activity is clearly in the public interest. Journalists cultivate knowledgeable and expert sources all the time. They promise sources that their identity will not be revealed. They receive and evaluate confidential information. For the most part, they are careful when publishing information concerning surveillance operations, particularly when they relate to the protection of national security.

S.35P, however, is likely to chill these crucial investigative activities. Journalists, lawyers and others who come into possession of specialist intelligence information may be prosecuted not only when they intend to disclose that information but also if they are reckless as to the possibility of its disclosure.

All the government now needs to do to stop such disclosures is to warn media organizations that matters in which journalists have an interest may relate to special intelligence operations. Journalists are unlikely to court the possibility of jail once such a caution has been issued. S.35P should be repealed in its entirety.

If I were a journalist, these and other related developments cumulatively would be causing me very considerable alarm. Recently, in response, the Alliance for Journalists’ Freedom has produced a report on the state of press freedom in Australia (Press Freedom in Australia, White Paper, May 2019). It describes the progressive erosion of that freedom. The report argues for the enactment of a Media Freedom Act. The purpose of the Act would be to enshrine the principle of press freedom in law.

The Act would recognise the fundamental importance of national security and the protection of the Commonwealth’s intelligence and law enforcement activity while providing for the fundamental right of journalists to investigate and report on government corruption, surveillance and misconduct in public office. The report’s recommendations are not without legal difficulties. Nevertheless, it provides a sound starting point for a debate that goes to the heart of the Australian democracy.

Spencer Zifcak is Allan Myers Professor of Law at the Australian Catholic University, Adjunct Professor of Law at Griffith University, and a former President of Liberty Victoria.

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