How An Australian Media Freedom Act Could Work

Image: Getty Images

Australians picked up their morning papers yesterday to find heavily blacked-out text instead of front-page headlines. This bold statement was instigated by the “Your Right to Know” campaign, an unlikely coalition of Australian media organisations fighting for press freedom and source protection.

A key reform advocated by a range of organisations and experts – including our research team at the University of Queensland – is the introduction of a Media Freedom Act. Unlike human rights or anti-discrimination legislation, there is no clear precedent for such an act.

So what exactly might a Media Freedom Act look like and is it a good idea?

Raids and response

It was the June raids on the home of News Corp journalist Annika Smethurst and the ABC’s Sydney headquarters that revealed the fragile state of press freedom in Australia. Two parliamentary inquiries into press freedom are on foot, with public hearings before the Senate committee starting last Friday.

Parliament will soon face the question: can we protect national security without sacrificing that cornerstone of liberal democracy, press freedom? If so, how?

Home Affairs Minister Peter Dutton’s immediate response to the raids was to state that journalists would be prosecuted if they received top-secret documents. A month later, Dutton issued a ministerial directive to the AFP that emphasised the importance of press freedom and the need for restrained action against journalists.

Attorney-General Christian Porter’s subsequent directive was more moderate, ensuring that he would have the final say on whether journalists would be prosecuted on the basis of their work “in a professional capacity as a journalist”.

The AFP raided the ABC’s Sydney headquarters in June this year. David Gray/AAP

These directives may reflect a burgeoning appreciation within government of the importance of the press in ensuring democratic free speech and accountability.

However, the laws that undermine press freedom by targeting journalists and their sources remain on the books. These laws include many of the now 82 (and counting) national security laws enacted since September 11 2001. This is more than anywhere else in the world and some of these laws grant the government uniquely severe powers of detention and interrogation.

A Media Freedom Act could serve three key roles, making it an appropriate and advantageous option in the protection of national security, press freedom and democracy.

Recognise the fourth estate

First, a Media Freedom Act would recognise and affirm the importance of press freedom in Australia. This recognition would support the fourth estate role of the media and demonstrate Australia’s commitment to democratic accountability and the rule of law. It would carry the weight of legislation rather than the relative flimsiness of ad hoc directives.

In this way, a Media Freedom Act would represent a clear commitment to the public’s right and capacity to know about how they are governed and power is exercised.

The act would also recognise that press freedom is not an absolute, but may be subject to necessary and proportionate limitations.

A culture of disclosure

Second, it would support a transition from a culture of secrecy to a culture of disclosure and open government across the public sector. This role could be served by requiring the public sector (including law enforcement and intelligence officers) to consider the impact of their decisions on press freedom and government accountability and to adopt the least intrusive option that is reasonably available.

This requirement echoes Dutton’s directive. It is already part of the law of Victoria, the ACT and Queensland, where free expression is protected within those jurisdictions’ charters of rights. Like the charters, a federal Media Freedom Act would aim to bring about a cultural shift and contribute to the gradual rebuilding of trust between government and the media.

At federal level, the parliament must already consider the impact of a new law on freedom of expression under the Human Rights (Parliamentary Scrutiny) Act. A Media Freedom Act could reinforce the importance of parliament and the public sector considering the impact on press freedom when it debates and enacts new laws.

Journalism is not a crime

Third, and most importantly, a Media Freedom Act would protect press freedom by ensuring legitimate journalism was excluded from the scope of criminal offences.

It is important that this be in the form of an exemption rather than a defence. This has no substantial legal impact. But, crucially, an exemption conveys that the journalist had not engaged in criminal wrongdoing.

It also places the onus on the prosecution to prove the exemption doesn’t apply. This therefore alleviates the chilling effect on press freedom caused by the threat of court action.

The framing of the protection will attract debate (what, after all, is a journalist? And what is journalism?).

A good starting point is the existing journalism defence to the general secrecy offence in section 122.5 of the Criminal Code. For that defence to apply, the person must have:

  • dealt with the information in their capacity as a “person engaged in the business of reporting news, presenting current affairs or expressing editorial or other content in news media”

  • have reasonably believed that engaging in the conduct was in the public interest.

A single act or many amendments?

A Media Freedom Act is not a panacea; it would not avoid the need for a detailed review of Australia’s legal frameworks for their impact on press freedom.

In particular, protections for private sector, public sector and intelligence whistleblowers need attention. Suppression orders and defamation laws also have a serious chilling effect on Australian journalism. However, the present approach of considering dozens of individual schemes for their discrete impact on press freedom, and seeking technical amendments to each to alleviate that impact, is cumbersome, illogical and destined to create loopholes.

Australia’s national security laws are uniquely broad and complex. At present, an inconsistent array of (notably few) journalism-based defences and exemptions from prosecution are scattered across these laws. Inconsistency leads to confusion, and overlapping offences make it even more difficult for journalists to know when they are crossing the line into criminal conduct.

The imperative to protect press freedom is fundamental and deserving of general recognition and protection. In light of these concerns, our international obligations and the rule-of-law concerns for legal clarity, consistency and proportionality, it is time for a Media Freedom Act.The Conversation

Rebecca Ananian-Welsh, Senior Lecturer, TC Beirne School of Law, The University of Queensland

This article is republished from The Conversation under a Creative Commons license. Read the original article.


Comments

    Personally, I'd love to see it made a crime to mis-classify politically embarrassing information in any way that attempts to hide it from the public.

    Additionally, where Freedom of Information requests are rejected due to 'the work involved', this represents a situation where information technology infrastructure is insufficient to the task of providing public accountability and scrutiny, which should see a mandate to imrpove the technology such that the burden is reduced and transparency increased.

      I think that cuts both ways. I absolutely agree that the Government (or industry) hiding embarrassing information shouldn't happen. And a cover up of something politically embarrassing is every bit as bad as covering up criminal activity.

      But I also think the media needs to be accountable for accurate and balanced reporting. There are a wealth of media reports where they prune a statement so that when taken out of context it paints the speaker in a bad light. To me that is every bit as bad.

      As for FOI, having worked in a Department that dealt with FOI requests failing a request "due to the work involved" wasn't because we didn't have the infrastructure or resources to deal with it *. It was because the request was too broad in scope. FOI was never meant to be a trawlers net and using it as such was against the spirit of the legislation.

      * side note: some of the stupidly broad requests would tie up a bunch of resources that could be used for other things. Like the day to day working of whatever dept was involved. Want your disability claim approved? Sorry the staff who could do that are busy working on FOI requests. You'll have to wait a couple weeks...

        No, there are definitely examples of systems and IT infrastructure errors being used to hide the truth, rejecting FOI requests.

        Take the Centrelink robo-debt. Multiple FOI requests about this, when it was breaking news, were rejected for utterly ridiculous grounds, such as: claiming not to know which specific program was being referred to, in a request relating to the current "Centrelink data matching/debt recovery scheme." Or in response to one request for evidence of risk assessment of the program, the response was that no such document exists.

        Roll that bad-boy around in your brain for a bit. If it doesn't exist, that means they either didn't document it or that a risk assessment straight-up wasn't done.

        Another request for the same information (a request for documents relating to the risks of the program) was refused on the grounds that there were too many documents.

        That's a data infrastructure failing. If you can't quickly package those documents for that specific purpose to provide a reasonable package of evidence, you're doing something wrong with how you arrange and store data.

        In these cases, it's very clear that interested parties are looking for the evidence that Centrelink had considered the risk that 'robo-debt' demands would be generated in error, and Centrelink DID NOT WANT to give that information out, despite it being information that the public has a right to know.

        But apparently we can't know... because it's too hard to find? That's bullshit, and the way records are kept need to be changed so that vital public interest information like that CAN be retrieved.

        Last edited 23/10/19 3:53 pm

          *shrugs* Not saying some Govt departments didn't abuse the FOI system I just know what happened when we dealt with requests. We'd literally get a request for information about every school built in the entire state. And that was explicitly NOT what the system was meant for. Not that you couldn't get information on *every* school in the state, just that you needed to make a request for each school.

          Similarly we'd get super vague requests where it wasn't actually clear what the person actually wanted, or where it was. "Can you give me information about my school". But they wouldn't tell you what school they referred to.

        But I also think the media needs to be accountable for accurate and balanced reporting. There are a wealth of media reports where they prune a statement so that when taken out of context it paints the speaker in a bad light. To me that is every bit as bad.

        In what way would you hold them accountable though? Unless they are defaming the person and it can be proved in a court of law, Punishing people for bias is the exact opposite of a democracy.

        I might not like Fox news, I might think they are the higest order of biased. But i would be against any legislation or lawsuit against them for their bias.

          The problem is the media is meant to be without bias. When you purposely edit content to make a person appear malicious or change the intent of their original message then you are failing that. And just to be clear I'm not talking editorials, they've always been an opinion and therefore biased. I'm talking about basic news reports like the 6PM news.

          I'm ok with editorials but I'm not ok with *every* piece of news being editorials. Which is why I believe if you're going to have a media "rights" act then it should include sections on their own responsibility or duty of care as well.

    In particular, protections for private sector, public sector and intelligence whistleblowers need attention. Suppression orders and defamation laws also have a serious chilling effect on Australian journalism.

    I was going to mention something similar. It's all well and good to protect the journalists but if the whistle-blower is going to end up in jail how do you get your information in the first place? It is a difficult balance to get right, how do you protect sensitive information but still be subject to public scrutiny.

    And while we're at it, who do we trust to determine if something is genuinely in the public interest? We could enshrine laws that protect the media and whistle-blowers when their disclosure is in the public interest. However, some independent entity needs to determine that.

      The worst part of this is that 'independent' doesn't mean shit. Not when you can stack any given 'independent' board with party members, donors, and executives in any industry that might be negatively affected - selected by virtue of their 'industry expertise'. I think the judiciary is about as close as we get, these days, and even that's a bit touchy.

      Last edited 23/10/19 3:52 pm

        Independent in this context can mean the judiciary. I just meant that the Government is currently deciding what is in the public interest. That'd be like letting the police decide what is police corruption, or a robber decide what is theft. Extreme examples, but the point stands - you can't have the potential rule breaker deciding what the rules actually are.

Join the discussion!

Trending Stories Right Now