Scott Morrison tested on secrecy laws

Prime Minister Scott Morrison has declared that journalists should not be prosecuted at the ‘whim of politicians’.

Scott Morrison has declared that journalists should not be prosecuted at the “whim of politicians”, a month after Attorney-General Christian Porter gave himself new powers to make the final call to take reporters to court for exposing government secrets.

The Prime Minister’s comments came after media organisations launched a united push against government ­secrecy, issuing heavily redacted front pages to protest against a sustained attack on the rights of journalists to hold governments to account and report the truth to the public.

As media companies ­demanded six reforms to better protect journalists and whistleblowers, the Prime Minister told parliament Australians did not want to be part of a country where politicians determined prosecutions.

“But if it comes to a position in this country where prime ministers and politicians decide who gets prosecuted and who doesn’t get prosecuted without taking the appropriate advice and without seeing the appropriate release … then that’s not a country that I think Australians would want to live in,” Mr Morrison said.

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Mr Porter has been criticised over his directive last month under section 8 of the Commonwealth Director of Public Prosecutions Act that requires the Attorney-General’s consent for the prosecution of any journalist for alleged breaches of the Criminal Code, the ASIO Act, Defence Act and Crimes Act over their reporting.

The Law Council of Australia seized on Mr Morrison’s comments in parliament on Monday, saying Mr Porter’s directive should be abandoned and the government should overhaul restrictive laws that could criminalise journalism.

“In light of the Prime Minister’s correct comments, the Attorney-General should withdraw his direction to the Commonwealth Director of Public Prosecutions,” said Law Council of Australia president Arthur Moses SC.

“The Law Council stated back in June 2019 that such a direction would not be an appropriate safeguard in order to protect the freedom of the press. It puts the Attorney-General, a politician, in the position of authorising prosecutions of journalists who may have written stories critical of his or her government.”

The government’s confusing message on press freedom came as AFP Commissioner Reece Kershaw announced a review of the agency’s management of sensitive investigations following dual raids on News Corp journalist Annika Smethurst and the Sydney headquarters of the ABC. The review will look at current processes around unauthorised disclosures, parliamentary privilege, espionage, foreign interference and war crimes and will be led by John Lawler, former head of the Australian Crime Commission.

Opposition home affairs spokeswoman Kristina Keneally confronted the AFP Commissioner over whether he had seen the redacted front pages of newspapers, which she held up in a ­Senate estimates hearing. Mr Kershaw admitted he had not.

“I haven’t,” he said. “I have now. It looks like someone has put a black marker through whatever was on there.”

Opposition legal affairs spokesman Mark Dreyfus backed a key request from media organisations to exempt journalists from national security laws that could see them jailed for their work, creating another split between the major parties. “That’s an appropriate legislative change and the government ought to be bringing in legislation into the parliament to do that,” Mr Dreyfus told Sky News.

The Your Right To Know campaign — run by news organisations including News Corp Australia, publisher of The Australian — wants the right to contest the application for warrants for journalists and media organisations, plus an overhaul of whistleblower and defamation laws and the Freedom of Information regime.

Media companies are also calling for journalists to be exempted from national security laws and a new system that limits which ­documents can be stamped secret.

Mr Morrison made his comments in response to calls from ­Anthony Albanese for the government to rule out prosecuting Smethurst and the ABC’s Dan Oakes and Sam Clark over their separate reports on secret government documents. “Does the Prime Minister agree that journalism is not a crime?” Mr Albanese asked.

Mr Morrison agreed it wasn’t but declared that “no one in this country is above the law”.    In a bid to take aim at Labor, Mr Morrison said he did not believe that “decisions about who should be prosecuted … should be made on the whim of politicians”. “They should be made based on the rule of law and the proper assessment of … law enforcement agencies,” he said.

Government sources were later forced to clarify Mr Morrison’s remarks and said he was not at odds with Mr Porter’s direction. They said the Prime Minister was simply attacking any suggestion the government should intervene in an investigation without expert advice.

Under the directive, Mr Porter did not make a judgment about a prosecution “on a whim” but after extensive advice from the CDPP.

Mr Dreyfus urged Mr Porter to explain what Mr Morrison’s comments meant for the directive. “This is an extraordinary intervention by Morrison which ­directly contradicts the directive by his Attorney-General,” he said.

Campbell Reid, News Corp Australia’s head of corporate affairs, policy and government relations, agreed with Mr Morrison’s declaration that it should not be up to the whim of politicians to decide the fate of a prosecution. “(Mr Porter’s directive) could also in our view be interpreted as ‘the whim of a politician’,” Mr Reid told Sky News. “At the end of the day there is an investigation and a politician decides whether that prosecution would proceed. That seems to ­directly contradict … what the Prime Minister is saying.”

Mr Porter said the government was “not closed-minded” to contested warrants or reviewing the FOI system “Labor put in place” and defamation reform. But on the issue of wholesale exclusions from national security laws, he said: “The government will not support exemptions for an entire class of professionals from laws designed to keep Australians safe. This would allow foreign agents to ­exploit journalism.”

In 2013, Labor sought to overhaul the media landscape but ignited a backlash by trying to expand control over the press through the creation of a public interest media advocate which would have overseen standards for journalists.

Additional reporting: Olivia Caisley