Balancing act: national security collides with freedom of the press

The Australian Federal Police officers who searched News Corp journalist Annika Smethurst's Canberra apartment on Tuesday morning split into two groups. One team did a physical search, the other an electronic one.

The physical team found nothing, Smethurst says, though "they weren't going to die wondering".

A debate about journalist and whistleblower protection laws is now gathering momentum.Credit: Michael Howard

They went through everything — clothes, her bathroom, handbags, books, even old newspaper clippings of Smethurst's stories from her early years as a reporter.

The other team found electronic material that is now the subject of discussions between the AFP and lawyers for News Corp, for whom Smethurst works as the Sunday papers' political editor.

The raid on Smethurst's home, and another the following day on the ABC headquarters in Sydney, related to separate media reports based on leaked information that the AFP says have the potential to undermine Australia's national security.

Criminal charges against government officials who leak information to journalists have happened before, albeit not usually involving the search of journalists' homes. What is new and, Smethurst says, alarming, is the fact it became clear over the course of the week that journalists and publishers may themselves be in the crosshairs for prosecution.

"I think it is a very concerning moment," she says. "I don't need people's sympathy. But Australians should be alarmed by what it means for press freedom and journalism."

The raids have produced a volcanic response from the media. The nation's most senior, experienced and respected journalists have lined up on television and in print to condemn the actions. The developments also attracted attention from major news outlets from across the world.

But the Morrison government and the police have been quick to defend the actions, saying press freedom is important but Australia's national security laws must also be upheld.

'Designed to intimidate'

The search of Smethurst's home was part of an investigation into a story she wrote in April last year based on leaked documents that revealed a proposal to expand the powers of electronic intelligence agency the Australian Signals Directorate.

The investigation into the ABC is over a 2017 report, The Afghan Files, based on leaked Defence material on cases of Australian troops allegedly killing unarmed men and children. The police warrant named reporters Dan Oakes and Sam Clark and news director Gaven Morris. It also named David McBride, a former military lawyer who was charged in September in connection with the leak and maintains it was his duty to be a whistleblower.

Prime Minister Scott Morrison's handpicked ABC chair, Ita Buttrose, on Friday slammed the back-to-back police raids as "clearly designed to intimidate" and deter hard-hitting public interest journalism.

News Corp Australia executive chairman Michael Miller said the week's developments represented a "danger to our democracy".

It's not often that the ABC and News Corp are in lockstep but this affair has united editorial rivals across Australia. They have been sturdily backed up by lawyers' groups, opposition parties and the nation's human rights watchdog.

Debate over protection laws

A debate about journalist and whistleblower protection laws is now gathering momentum, with growing appetite for a review of the national security legislation that has passed the Parliament over the past six years, often at breakneck pace and always with bipartisan support.

Centre Alliance, whose two senators will hold the balance of power on many key issues on the Morrison government's agenda, were among the first out of the blocks, vowing to introduce a bill to Parliament for an Australian version of the US Constitution's First Amendment, guaranteeing free speech and freedom of the press.

Australia is the only democracy in the world that does not protect free speech and freedom of the press through a charter or bill of rights.

George Williams, a constitutional lawyer and dean of the Law School at the University of NSW

"Freedom of religion is enshrined in our Constitution, but freedom of speech and a free press are not subject to explicit protection," Centre Alliance senator Rex Patrick says. "This is a deep-seated flaw in the foundations of Australia's democracy."

It's a long shot. The parliamentary bill is just a precursor to a nationwide referendum that would be needed to change the Constitution.

But it addresses a frequent complaint of constitutional lawyers. Australia isn't just rare in not enshrining free speech and a free press, it is alone.

"Australia is the only democracy in the world that does not protect free speech and freedom of the press through a charter or bill of rights," says George Williams, a constitutional lawyer and dean of the Law School at the University of NSW.

"There is no other country like us. One reason is we've just assumed Parliament would respect these rights. By and large they have in the past, but that's no longer true."

No fewer than 75 sets of national security-related legislation have been passed since the September 11, 2001 terrorist attacks in the US, Williams says. Prominent Canadian law professor Kent Roach dubbed Australia a country of "hyper-legislation" in this area.

The events of this week are a "tiny aspect" of the accumulated laws, which could still be used much more actively against journalists and whistleblowers, Williams says.

Nonetheless, he describes this week as "a tipping point".

'Tipping point'

Sarah Repucci, a researcher with Freedom House, says Australia is a strong performer in the international watchdog organisation's press freedom measures, but warns there are problems and the AFP raids fit into a "very dangerous" trend.

"At the global level, democracies have been working within their legal structures in a way that erodes the norms that once bolstered basic freedoms," she says.

"The raids in Australia can be seen as part of this trend, as the government has taken laws that are very broadly written, in terms of the infringements on freedom that they might encompass, and enforced them in such a way that they justify extreme action against news outlets and journalists."

In a stern statement, the Australian Human Rights Commission described the raids as "deeply disturbing" and noted the increase to police and government powers in recent years.

Commission president Rosalind Croucher, who was appointed by the Coalition government, agreed Australia was "unusual among liberal democratic countries in missing key checks and balances, such as a national human rights act or charter, to stop such national security laws from over-reaching".

Critically, last year's foreign interference and espionage laws expanded the scope for prosecutions for publishing material in the media.

Previously, the Crimes Act included an offence of receiving leaks, though it rarely, if ever, led to prosecutions. The home of Philip Dorling, a former investigative journalist with The Sydney Morning Herald and The Age, was searched in 2000 and 2008 under warrants that specified the offences of both leaking and receiving leaks, however, a prosecution was never pursued.

The AFP said this week that the warrants for Smethurst and the ABC included the section of the Crimes Act that covers receiving leaks, which indicates the journalists are targets of the investigation — a fact later confirmed by AFP acting commissioner Neil Gaughan.

New laws

But last year's foreign interference and espionage laws up the stakes considerably. They introduced a general secrecy offence that allows anyone who passes on classified information — including publishing it — received from a federal public servant to be jailed for up to five years.

After an outcry from media companies, supported by Labor, the then Turnbull government introduced a defence for journalists if they believe they are reporting on a matter that is in the public interest, though public interest is not clearly defined.

With the current cases, the AFP is straddling the old and the new laws. The warrants are based on the old law. Gaughan said in a press conference that an offence was being committed by virtue of the fact that the classified material was still sitting on the News Corp and ABC websites, in breach of the new law. But he also said the police were unlikely to pursue prosecutions on that basis. The original publications both happened before the new laws were created, and courts are not wild about retrospectivity in criminal cases.

News Corp journalist Annika Smethurst, whose home was raided, says: "Australians should be alarmed by what it means for press freedom and journalism".Credit: Supplied

That leaves the old law, under which it is a crime to knowingly or recklessly receive classified leaks.

Whichever legal avenue the police end up taking, Gaughan would not rule out charges for the journalists, which would be a watershed moment. His comments also highlight the dangers that exist for journalists and publishers under the new laws, even if the police can't use them this time.

Bret Walker, SC, a senior barrister who served as Australia's first independent national security legislation monitor, says the current legal environment around government information is deeply flawed and symptomatic of a fundamental and unjustified culture of secrecy.

"It seems calculated to deter rather than encourage inquiry by people outside officialdom," he says.

He says this culture manifests across different areas of law, including freedom of information and whistleblower protections, and there is now an "unhealthy tolerance" for a system that is abused by public servants and relies on the assumption that the public can't be trusted.

"The ruling ethos in Canberra is that everything should be secret," he laments.

Walker says a fundamental shift is needed, and should start with the proposition that "the people can and should know everything to the greatest extent appropriate" about their government, with legitimate and justifiable exceptions. He favours legislative, rather than constitutional, changes.

Getting the balance right

Even some national security hardheads are recognising a need to examine the current settings. Rory Medcalf, head of the Australian National University's National Security College, says there needs to be a discussion, involving government and media, about whether the balance is right.

The strong message from media companies, civil society groups and legal experts is that it isn't.

Craig McMurtrie, editorial director of the ABC, says there needs to be a considered examination of stronger protections for journalists and whistleblowers, a united approach from the nation's media outlets, and an effort to address inconsistencies in the "patchwork" of laws.

"We need to make the case to the Australian people, we need to explain to them why this is so important," he says. "It goes to the proper functioning of a vigorous democracy and journalists being able to report difficult truths sometimes."

McMurtrie says all ideas — from the "highly contested" suggestion of a bill of rights to smaller scale changes — should be up for debate. He suggests the public interest defence included in last year's espionage legislation could be strengthened to become a fully fledged exemption.

"The issue is not just these recent raids but the growing number of laws with the power to put journalists in jail," News Corp's Miller says.

Understanding the context

But former attorney-general Philip Ruddock, who was responsible for some of the tougher legislation since 9/11, says Australians need to understand these laws have made them safer.

"Sometimes when you've been effectively protected because of laws that you've put in place, you lose a sense of perspective about what they're intended to address," he says, stressing he is speaking generally without a detailed knowledge of this week's cases.

"We're not dealing with it in the aftermath of September 11 or some vicious terrorist attack, but if we were, people might better understand the context in which these laws have been created."

Given leaks happen all the time, why have these ones produced startling back-to-back raids?

"The raid is unprecedented – both to the ABC and to me, " ABC chair Ita Buttrose says.Credit: Dan Himbrechts

On Thursday, Gaughan said there had been no government involvement in the decision to carry out the searches. It was purely a police operational decision.

They were very high-level cases, involving secret and top-secret documents.

A critical distinction about these leaks, Gaughan indicated, was that portions of the documents themselves were published. He even said police wanted to find out who had uploaded the documents onto computers for publication, though why printing select excerpts rather than quoting and summarising the documents in news stories is especially important isn't clear.

The AFP said each case was "an extremely serious matter that has the potential to undermine Australia's national security".

Secret sharing

But the alleged danger to national security is not necessarily about exposure of a particular secret, or revealing the identities of government operatives. Rather the point Gaughan underscored was that it's detrimental to the basic functioning and integrity of the government to have people leaking information.

The key example offered: intelligence-sharing partners such as the US might be less inclined to share their secrets if we can't keep our own safe.

"If we don't take it seriously, it closes down an avenue of people providing the Australian intelligence and law enforcement agencies [with] very sensitive information which ultimately does save lives," he said.

This fundamental point on the inherent value of secrecy is where the national security community and journalists diverge.

"There is clearly a tension there," McMurtrie says. "But I think the events of this week and the level of disquiet in Australia and around the world suggest that we should all pause and seriously ask whether the balance is currently right."

Walker says there is no problem with secrecy that is justified but, currently, "we have got everything wrong".

Politicians and bureaucrats must recognise that the citizens are in charge in Australia's democracy, he says. "It's our government."