Arthur Moses: Undermining the rights of the press with kneejerk legislation will hurt the cause of a free society
There has been a trend in recent years of parliamentarians tripping over themselves to enact laws in the name of national security without understanding the effect of these laws on our media or the rights of innocent citizens, writes Arthur Moses.
The rights and freedoms we enjoy as Australians have been fiercely defended by generations. We were poignantly reminded of this last week, with the commemoration of the 75th anniversary of the D-Day landing.
These precious rights are hard-won, but they are easily undermined. Complacency is just as dangerous as ill intent.
That is why the media raids last week have struck such a raw nerve.
Australia’s parliament is the guardian of the rights and freedoms of Australian citizens — a responsibility it should not take lightly.
We need to look forward — learn from what has happened and as a nation ensure the next steps reinforce, not erode, fundamental rights of citizens and our media, who act as watchdogs to prevent abuses of power.
There is a need for urgent reconsideration, when the new 46th parliament sits in July, of all national security and secrets legislation, including the need for a bill of rights to protect fundamental freedoms.
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The real issue that has emerged over the course of the last week is that parliamentarians on both sides appeared to be ignorant of the fact that they passed laws as late as last year that criminalised the actions of journalists.
The new laws in section 122 of the Criminal Code, which go further than the old section 79, place the onus on a journalist after she or he has been charged with an offence for publishing secret information, to prove it was in the public interest to do so.
That is an affront to freedom of the press. No journalist should be liable to be charged with a criminal offence for simply doing their job.
Our parliament must always carefully evaluate whether legislation achieves the right balance between protecting national security interests and upholding press freedom, which is itself a crucial safeguard.
There has been a trend in recent years of parliamentarians of all ilk tripping over themselves to enact laws in the name of national security without understanding the effect of these laws on our media or the rights of innocent citizens.
These include legislation relating to encryption, national security and social media platforms.
This is a failure of a parliamentarian’s duty to the community.
Our law enforcement agencies perform important work in the national interest. Last week the AFP were investigating and enforcing laws that parliament made some time ago.
The AFP should not be blamed for the failures of parliament, which enacted the laws.
The dangers of not having a bill of rights in Australia have also been highlighted by the events of last week.
This vacuum in our laws exposes our media because the freedom of the press is not currently explicitly protected.
The Law Council has long argued the necessity for a bill of rights to harmonise protections for citizens and the media, ensuring they can shine a light on conduct that may result in abuse of power.
The events of the last week are also a cautionary tale about the risks of chopping and changing security legislation without full consideration of any unintended consequences and adverse impacts.
The opposition and the crossbench are as much to blame as the government.
All parliamentarians need to take more time to carefully scrutinise proposed laws before voting on bills and less time political pointscoring.
We all agree that national security and public safety are important, Commonwealth employees should not disclose information that could threaten national security, and law enforcement agencies need to be given powers to protect Australians from harm.
However, enacting laws in the name of national security without testing them can result in overreach and the erosion of basic freedoms.
Despite best intentions, laws formulated as a knee-jerk reaction to a threat do not necessarily equate to good legislation and can have myriad unintended consequences.
One of our key concerns was that whistleblowers may no longer be able to deploy social media to shine a light on atrocities committed around the world because social media companies will be required to remove certain content for fear of being charged with a crime.
Of course, social media platforms must act responsibly. But governments should act with care and heed advice that highlights the risks of rushed legislation.
Where national security is at stake, it is paramount our parliament move quickly and responsively, but it must look before it leaps.
The moment we undermine our own rights and freedoms is the moment our enemies win.
We must never forget that brave Australians have given their lives to defend us against tyranny.
We must also never forget that freedom of the press is a critical safeguard against tyranny.
That freedom must be protected by our laws, not threatened. Journalism should never be a crime.
Arthur Moses SC is president of the Law Council of Australia.
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