Federal police bid would trample on press freedom

Academic Patrick Keyzer believes press freedom should be sheltered from political whims. Picture: Stuart McEvoy

Last year’s police raids on the media did have one benefit: they have shown just how little comprehension some agencies of the Morrison government have about the principles that underpin civil society in Western democracies.

The first step towards solving a problem is to recognise that it exists — and that is why the sensible parts of the government should be paying a lot more attention to the latest thinking to emerge from the Department of Home Affairs and the Australian Federal Police.

An idea favoured by this department and its friends in the AFP would appeal only to big-government authoritarians — which is hardly the core constituency of the federal Coalition.

Their plan on how to reform the law that led to last year’s raids is wrong on multiple grounds. If enacted, it would breach fundamental human rights, set back the cause of press freedom, expose Australia to international ridicule and open the door to a system that could sidestep the judiciary by vesting judge-like power in an entity it describes as “an independent issuing authority”.

This plan is worse than the system that led to last year’s raids on the ABC’s Sydney newsroom and the Canberra home of News Corp journalist Annika Smethurst.

Those raids were launched in response to news reports that have been declared to be in the public interest by no less a figure than Rosalind Croucher, president of the Australian Human Rights Commission. Community concern about press freedom led to the current parliamentary inquiry by the joint committee on intelligence and security.

Unlike the situation in Britain, the search warrants authorising the raids were obtained by the AFP at uncontested hearings where the only voice heard was that of the police. The decision-maker was an independent judicial officer, yet even that might be about to change.

Instead of going before a judicial officer and seeking a search warrant, Home Affairs and the AFP now want an additional tool — a “notice to produce” — that would be issued by “an independent issuing authority” whose identity is not disclosed.

Legal academic Patrick Keyzer believes that if Home Affairs and the AFP want to limit press freedom, their argument should be dealt with by a court and should be governed by law — not ministerial directives.

“Courts have the necessary independence and impartiality to weigh up the competing claims of national security and the public’s right to know,” says Keyzer, who holds a research chair in law and public policy at La Trobe University.

“The guidelines and ministerial directions made in 2019 after the raids on the ABC and News Corp do not have the force of law, can be replaced or revised by fiat, and do nothing to support the public’s right to know,” Keyzer says.

Without radical change, the proposed notice to produce would cause more problems than last year’s raids.

These notices could strip reporters of a fundamental right by requiring them to incriminate themselves.

They could also require reporters to abandon their code of ethics by revealing their confidential sources. A notice to produce, when served on a media organisation, could transform an independent publication into an agent of the police. Media executives could be forced to search their employees’ files, notebooks, computers and telephones and give the AFP material that could hurt their staff and undermine the credibility of their business.

This week, the media industry’s Right to Know coalition told the parliamentary inquiry the legal requirement for journalists to identify and produce documents that may incriminate and identify a confidential source “is so destructive of the relationship of trust and confidence necessary for such relationships that news reporting could be so undermined it may effectively come to an end”.

The Right to Know coalition says the prospect of employers assisting in the prosecution of their staff would prevent journalists from fully engaging with their employers on matters such as editorial guidance and fact-checking. Corporate computers, servers and telephones would become legal traps for the unwary.

The concept of a notice to produce is a pea-and-thimble trick designed to divert attention from the lack of rigour associated with search warrants that underpin raids on the media.

One of the media’s core proposals — contestable warrant hearings — has been opposed by the police, who argue evidence might be destroyed. This is at odds with what the AFP did last year when it gave the ABC and News Corp advance notice of both raids.

The “notice to produce” mechanism is a meaningless con. Even if the media were to head off such a notice at a hearing before an “independent issuing authority” that would not be the end of the matter. There would be nothing to prevent the AFP from putting the same failed argument to an uncontested hearing for a search warrant. The unfortunate judicial officer would be flying blind.