Media companies, union call on government to fix flawed laws that threaten journalists, sources
In the wake of AFP raids on News Corp journalist Annika Smethurst and the ABC, The Sunday Telegraph is urging the government to amend flawed legislation that threatens to jail journalists.
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The Sunday Telegraph is calling on the federal government to repair flawed legislation that threatens to jail journalists who protect their sources.
Police this week raided the ABC and the home of Sunday Telegraph journalist Annika Smethurst in a bid to hunt out whistleblowers for exposing stories that were clearly in the public interest.
The raids have highlighted serious flaws in a host of laws which allow journalists to be criminally charged for refusing to give up their sources to police.
Under some laws journalists are entitled to argue “public interest” as a defence after being charged, while others do not allow even this.
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The Sunday Telegraph and our sister News Corp Australasia mastheads interstate — along with the journalists’ union and the Seven Network — are calling for legislated exemptions for journalists — effectively securing the public’s right to know.
The ABC, Nine’s broadcast and publishing platforms and the Law Council of Australia believe there needs to be a review of the laws and have raised serious concerns about any plans to prosecute journalists.
“At a time when telling truths has never been more important, it is damning that governments are continuing to implement legislation which limits professional journalism,” Sunday Telegraph editor Mick Carroll said.
“There are stories in the public interest that need to be told; secrets that should not be secret.
“We should not be quiet Australians on this issue.”
Sunday Telegraph political editor Annika Smethurst’s home was raided on Tuesday following an April 2018 story on plans by the Australian Signals Directorate to spy on Australian citizens for the first time.
“This story did not threaten national security,” Mr Carroll said.
Of the nine Acts of Parliament we want amended, the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 is the most problematic.
For example, a news organisation could report on a seemingly harmless prayer gathering or cafe meeting between well-known individuals.
If it later turns out that this meeting was a cover for a recruitment drive for foreign fighters, that journalist and anyone else involved in the process could be imprisoned for 10 years.
This would be the case even if the journalist’s conduct was not considered “reckless” by the court.
Another example is the Journalist Information Warrant Scheme which operates under metadata laws passed in 2015.
These laws are the Telecommunications (Interception and Access) Act 1979 and the Telecommunications (Interception and Access) Regulations 2015.
Under these laws, about 20 government agencies can apply for a warrant to access a journalist’s metadata and trace their sources.
Media organisations are not told about this process and have no opportunity to argue that it is, for instance, against the public interest for the journalists’ sources to be revealed via the warrant.
Journalists also face a two year jail term for reporting specifics about a Journalist Information Warrant.
MEAA Media president Marcus Strom said the spate of national security laws passed by federal parliament over the past six years have been designed not just to combat terrorism but to persecute and prosecute whistleblowers who seek to expose wrongdoing.
Law Council of Australia President Arthur Moses SC called for a review of the Espionage and Foreign Interference Bill and Foreign Influence Transparency Scheme Bill.
He said while it was important to ensure public officials don’t casually breach secrecy rules, “you don’t need a sledgehammer to crack a nut”.
“Accordingly, parliament needs to review these laws to ensure we get the balance right,” Mr Moses said.
The Law Council of Australia supports establishment of a Whistleblower Protection Authority to have oversight of the implementation of the whistleblower regime for both the public and private sectors.
Mr Moses also called on the government to review Sections 122.4A and 122.5(6) of the Crimes Act 1914.
Under new laws passed December 29, 2018, the only defence available to a journalist charged under section 122.4A is that the journalist reasonably believes that it is in the public interest to publish.
This provision exposes a journalist to a criminal charge. The journalist must then lead evidence that it was in the public interest to publish in order to be acquitted.
“The new provision criminalises the journalist’s action and may force them to disclose their source as part of their defence to make out that he or she reasonably believed that it was in the public interest to publish,” Mr Moses said.
ABC editorial director Craig McMurtrie said the current “patchwork” of laws need to be synchronised.
Asked if he was supportive of providing exemptions rather than just a defence for journalists working on national security matters, he said “broadly yes”.
“I think it’s difficult to come up with a specific scenario right now,” he said.
“The more important thing is to go through it all.
“I do think, around the public interest defence for journalists, there was a push for an exemption — that did not happen.”
Seven Network director of news Craig McPherson said the laws as they stand allow for manipulation and agendas, or the perception of agendas, to be exhausted under the guise of national security concerns.
“Public interest is at the forefront of investigative journalism,” he said.
“The right of our audience to be informed is the engine that drives what we do.
“Public interest should exempt journalists who are doing their job from the daily threat of prosecution.”
THE ACTS WE WANT FIXED
1. The Journalist Information Warrant Scheme (JIW Scheme) contained in Division 4C of the Telecommunications (Interception and Access) Act 1979 (Sections 180G to 180X inclusive)
2. The Telecommunications (Interception and Access) regulations 2015
3. Counter-Terrorism Legislation Amendment Bill (No.1) 2014
4. National; Security Legislation Amendment Bill (No.1) 2014
5. Foreign Fighters Bill 2014
6. Data Retention Bill 2014 — from which the Journalist Information Warrant Scheme arose in the Telecommunication (Interception and Access) Act 1979 and regulations
7. Public Interest Disclosure Act 2014
8. Foreign Influence Transparency Scheme Bull 2017
9. Espionage and Foreign Interference Bill 2017
Originally published as Media companies, union call on government to fix flawed laws that threaten journalists, sources
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