Pacific Media Watch

An Australian federal court decision upholding the legality of the police raid on the Sydney headquarters of the national public broadcaster ABC last June has dealt a major blow to the protection of journalists’ sources and poses a grave danger for the future of public interest journalism, says Reporters Without Borders (RSF).

In its ruling issued on February 17, the court rejected the Australian Broadcasting Corporation’s challenge to the legality of the search warrant that allowed federal police to search computers, emails and USB sticks at its headquarters on 5 June 2019.

The police were trying to identify the source for The Afghan Files reporting by ABC journalists Sam Clark and Dan Oakes in 2017 about the role of Australian special forces in the illegal killing of civilians in Afghanistan.

READ MORE: The Afghan Files: Defence leak exposes deadly secrets of Australia’s special forces

The reporters used material provided by a whistleblower within the Defence Ministry.

“If confirmed on appeal, this federal court ruling will set a disturbing legal precedent by turning investigative reporters and whistleblowers into criminals,” said Daniel Bastard, the head of RSF’s Asia-Pacific desk.

“The ABC story never compromised national security and clearly served the interests of the Australian public, who have a right to reliable and independent information freely reported by journalists.

“We call on the federal judges to guarantee this right on appeal by recognising the search warrant’s illegality.”

Ruling fraught with consequences
Under the warrant, the police were authorised to search for evidence that the two journalists had “unlawfully obtained military information” and “dishonestly received stolen property”.

The supposedly stolen property was the leaked documents that exposed the illegal killings reported in The Afghan Files.

The federal police raid on ABC was all the more shocking for coming just one day after a raid on News Corp political editor Annika Smethurst’s home in Canberra. The timing of the two raids was widely seen as a deliberate attempt to intimidate investigative journalists.

The judicial precedents set by these two cases are particularly fraught with consequences inasmuch as Australia’s constitutional law contains no guarantees for press freedom.

Article by AsiaPacificReport.nz

By Rebecca Ananian-Welsh

Australians picked up their morning papers yesterday to find heavily blacked-out text instead of front-page headlines. This bold statement was instigated by the “Your Right to Know” campaign, an unlikely coalition of Australian media organisations fighting for press freedom and source protection.

A key reform advocated by a range of organisations and experts – including our research team at the University of Queensland – is the introduction of a Media Freedom Act. Unlike human rights or anti-discrimination legislation, there is no clear precedent for such an act.

So what exactly might a Media Freedom Act look like and is it a good idea?

READ MORE: Australian Attorney-General grants limited protection to embattled journalists

It was the June raids on the home of News Corp journalist Annika Smethurst and the ABC’s Sydney headquarters that revealed the fragile state of press freedom in Australia. Two parliamentary inquiries into press freedom are on foot, with public hearings before the Senate committee  starting last Friday.

Parliament will soon face the question: can we protect national security without sacrificing that cornerstone of liberal democracy, press freedom? If so, how?

Home Affairs Minister Peter Dutton’s immediate response to the raids was to state that journalists would be prosecuted if they received top-secret documents. A month later, Dutton issued a ministerial directive to the AFP that emphasised the importance of press freedom and the need for restrained action against journalists.

Attorney-General Christian Porter’s subsequent directive was more moderate, ensuring that he would have the final say on whether journalists would be prosecuted on the basis of their work “in a professional capacity as a journalist”.

These directives may reflect a burgeoning appreciation within government of the importance of the press in ensuring democratic free speech and accountability.

However, the laws that undermine press freedom by targeting journalists and their sources remain on the books. These laws include many of the now 82 (and counting) national security laws enacted since September 11 2001. This is more than anywhere else in the world and some of these laws grant the government uniquely severe powers of detention and interrogation.

A Media Freedom Act could serve three key roles, making it an appropriate and advantageous option in the protection of national security, press freedom and democracy.

Recognise the fourth estate
First, a Media Freedom Act would recognise and affirm the importance of press freedom in Australia. This recognition would support the fourth estate role of the media and demonstrate Australia’s commitment to democratic accountability and the rule of law. It would carry the weight of legislation rather than the relative flimsiness of ad hoc directives.

In this way, a Media Freedom Act would represent a clear commitment to the public’s right and capacity to know about how they are governed and power is exercised.

The act would also recognise that press freedom is not an absolute, but may be subject to necessary and proportionate limitations.

A culture of disclosure
Second, it would support a transition from a culture of secrecy to a culture of disclosure and open government across the public sector. This role could be served by requiring the public sector (including law enforcement and intelligence officers) to consider the impact of their decisions on press freedom and government accountability and to adopt the least intrusive option that is reasonably available.

This requirement echoes Dutton’s directive. It is already part of the law of Victoria, the ACT and Queensland, where free expression is protected within those jurisdictions’ charters of rights. Like the charters, a federal Media Freedom Act would aim to bring about a cultural shift and contribute to the gradual rebuilding of trust between government and the media.

At federal level, the parliament must already consider the impact of a new law on freedom of expression under the Human Rights (Parliamentary Scrutiny) Act. A Media Freedom Act could reinforce the importance of parliament and the public sector considering the impact on press freedom when it debates and enacts new laws.

Journalism is not a crime
Third, and most importantly, a Media Freedom Act would protect press freedom by ensuring legitimate journalism was excluded from the scope of criminal offences.

It is important that this be in the form of an exemption rather than a defence. This has no substantial legal impact. But, crucially, an exemption conveys that the journalist had not engaged in criminal wrongdoing.

It also places the onus on the prosecution to prove the exemption doesn’t apply. This therefore alleviates the chilling effect on press freedom caused by the threat of court action.

The framing of the protection will attract debate (what, after all, is a journalist? And what is journalism?).

A good starting point is the existing journalism defence to the general secrecy offence in section 122.5 of the Criminal Code. For that defence to apply, the person must have:

• dealt with the information in their capacity as a “person engaged in the business of reporting news, presenting current affairs or expressing editorial or other content in news media”
• have reasonably believed that engaging in the conduct was in the public interest.

A single act or many amendments?
A Media Freedom Act is not a panacea; it would not avoid the need for a detailed review of Australia’s legal frameworks for their impact on press freedom.

In particular, protections for private sector, public sector and intelligence whistleblowers need attention. Suppression orders and defamation laws also have a serious chilling effect on Australian journalism. However, the present approach of considering dozens of individual schemes for their discrete impact on press freedom, and seeking technical amendments to each to alleviate that impact, is cumbersome, illogical and destined to create loopholes.

Australia’s national security laws are uniquely broad and complex. At present, an inconsistent array of (notably few) journalism-based defences and exemptions from prosecution are scattered across these laws. Inconsistency leads to confusion, and overlapping offences make it even more difficult for journalists to know when they are crossing the line into criminal conduct.

The imperative to protect press freedom is fundamental and deserving of general recognition and protection. In light of these concerns, our international obligations and the rule-of-law concerns for legal clarity, consistency and proportionality, it is time for a Media Freedom Act.

• Rebecca Ananian-Welsh is a senior lecturer at the TC Beirne School of Law, The University of Queensland. This article was first published by The Conversation and is republished under a Creative Commons licence.

Article by AsiaPacificReport.nz

Pacific Media Watch Newsdesk

Newly released documents show that another government agency along with the Australian Federal Police was involved in the investigation that led to raids on Australian journalists and media offices in June, reports ABC news.

Documents obtained under the Freedom of Information Act (FOI) have shown that the AFP refused to release certain documents relating to the June 6 raid on the ABC because it said they related to a Federal Government agency which is exempt from FOI.

The government agencies exempt from the operations of the FOI are the Australian Security Intelligence Organisation (ASIO), the Australian Signals Directorate (ASD) and the Australian Secret Intelligence Service (ASIS).

READ MORE: Media groups calls for reform to protect press freedom in Australia

South Australian Senator Rex Patrick, to whom the documents were released under an FOI application said he believed the other agency was either ASIO or the Australian Signals Directorate.

The raid on the ABC’s Sydney headquarters related to the Afghan Files, a series of stories which detailed incidents where Australian soldiers in Afghanistan killed unarmed men and children.

According to the ABC, the involvement of the ASD would raise the significance of the raids to a new level as its role is to monitor the communications of people of interest outside Australia.

Government eavesdropping
The story which prompted another of the raids — on News Corp journalist Annika Smethurst — was about the push by some within the Federal Government to give ASD power to monitor the communications of Australians in Australia, which is currently prohibited by law.

The documents also showed that the then acting head of the AFP, Neil Gaughan was given a list of “media talking-points”, prepared answers for the press-conference immediately after the ABC raids should journalists ask specific questions about the investigations and the warrant process.

Senator Patrick told the ABC: “The documents released under FOI show that the AFP raids were targeting journalists as much as the sources of alleged leaks”.

Message to the press
“Despite the AFP’s protestations that they support journalistic freedom, there can be no doubt that they intended to send a message to the press.

According to the Guardian, the ABC has protested the validity of the AFP’s search warrants and told the Federal Court that the decision to grant the search warrant was “legally unreasonable” and should be set aside.

Matt Collins, QC for the ABC said the warrant was issued without consideration of the rights of journalists to protect their sources and the implied freedom of political communication under the constitution.

Collins said the warrant was “excessively broad” and materially misstated the terms of the offences.

Warrants ‘rubber-stamped’
Senator Rex Patrick told the ABC that the AFP “chose not to obtain journalist warrants to search journalists’ metadata and instead proceeded direct to obtain search warrants from court authorities more likely to rubber-stamp their applications.”

“In doing so the AFP deliberately avoided having to pay a highly qualified public interest advocate to examine the merits or otherwise of their investigation and argue against the grant of a warrant.”

Patrick said he had a long list of questions which he will seek answers to.

Article by AsiaPacificReport.nz

Press freedom groups are sounding the alarm over a pair of police raids on journalists in Australia. Video: Democracy Now!

By Democracy Now!

Press freedom groups are sounding the alarm over a pair of police raids on journalists. Last week, Australian Federal Police swept into the headquarters of the Australian Broadcasting Corporation in Sydney, reviewing thousands of documents for information about a 2017 report The Afghan Files that found Australian special forces soldiers may have committed war crimes in Afghanistan.

The raid came on Wednesday, one day after police in Melbourne raided the home of Annika Smethurst, a reporter with the Herald Sun newspaper.

Democracy Now! speaks to Australian journalism professor Joseph Fernandez – correspondent of Reporters Without Borders and Pacific Journalism Review – and Peter Greste, founding director of the Brisbane-based Alliance for Journalists’ Freedom.

Greste was imprisoned for 400 days in 2013 to 2014 while covering the political crisis in Egypt.

READ MORE: Asia Pacific Report stories on the police ABC raids

Transcript
This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now! I’m Amy Goodman, with Juan González.

JUAN GONZÁLEZ: Press freedom groups in Australia are sounding the alarm over a pair of police raids on journalists. On Wednesday last week, Australian Federal Police swept into the headquarters of the Australian Broadcasting Corporation in Sydney, reviewing thousands of documents for information about a 2017 report that found Australian special forces may have committed war crimes in Afghanistan.

ABC investigations executive editor John Lyons spoke on his own network just minutes after police served a warrant naming a news director and the two reporters who broke the story.

JOHN LYONS: They have downloaded 9,214 documents. I counted them. And they are now going through them. They’ve set up a huge screen, and they’re going through, email by email. It’s quite extraordinary.

And I feel—as a journalist, I feel it’s a real violation, because these are emails between this particular journalist and his boss, her boss, its drafts, its scripts of stories.

I’ve never seen an assault on the media as savage as this one we’re seeing today at the ABC. … And the chilling message is not so much for the journalists, but it’s also for the public.

AMY GOODMAN: Wednesday’s raid on the ABC came one day after police in Melbourne raided the home of Annika Smethurst, a reporter with the Herald Sun newspaper. Police served a warrant related to Smethurst’s reporting on a secret effort by an Australian intelligence service to expand its surveillance capabilities, including against Australian nationals.

Australia’s acting Federal Police Commissioner Neil Gaughan defended the raids, saying journalists could face prison time for holding classified information.

COMMISSIONER NEIL GAUGHAN: No sector of the community should be immune for this type of activity or evidence collection, more broadly. This includes law enforcement itself, the media or, indeed, even politicians.

AMY GOODMAN: Well, for more, we’re joined by two guests in Australia. With us from Brisbane is Peter Greste. He is the UNESCO chair in journalism and communications at University of Queensland. He is founding director of Alliance for Journalists’ Freedom.

He was imprisoned for over a year, for 400 days, in 2013 to 2014, while covering the political crisis in Egypt.

And joining us from Perth, Australia, Professor Joseph Fernandez is with us, a media law academic at Curtin University, Australia’s correspondent for Reporters Without Borders.

We welcome you both to Democracy Now! Joseph Fernandez, let’s begin with you. Lay out exactly what happened and when it took place, all the details as you know them, both the raiding of ABC and the journalist’s home.

JOSEPH FERNANDEZ: Thank you for having me on your show. The two raids happened within 48 hours of each other. It began with a raid on Annika Smethurst’s home. You have introduced her.

At her home, the Australian Federal Police spent seven-and-a-half hours going through every nook and cranny of her belongings, including the rubbish bin outside the house. And they sought to access her email messages, phone messages and anything they could lay their hands on, including what she might have kept away in her undies drawer.

Annika obviously was very traumatised by this, but she has held her head up high, in the knowledge that the story about which she was being investigated was really something very arguably and very strongly in the public interest or of legitimate public concern.

The second raid, the following day …

AMY GOODMAN: And that story was?

JOSEPH FERNANDEZ: Sorry. Can you say that again, please?

AMY GOODMAN: And that story was, Joseph?

JOSEPH FERNANDEZ: The story was that there was a discussion, a discussion about a plan to expand state surveillance, that would have possibly included surveillance of ordinary citizens. And this was quite an unprecedented idea.

And the objective of such a plan was obviously going to be justified on the premise of protecting national security.

The second raid happened at the headquarters of the national broadcaster ABC, the Australian Broadcasting Corporation, in Sydney. And police officers entered the premises armed with a warrant with an exhaustive inventory of things that they were looking for.

And as you have noted, they scoured hundreds and thousands of documents and materials, and left with a small collection of materials in a sealed package, with the agreement not to use them until a possible challenge is considered in the days ahead.

JUAN GONZÁLEZ: And, Joseph Fernandez, these raids coming within a day of each other, was there any coordination, or were these related in any way?

JOSEPH FERNANDEZ: That’s an interesting question. One of the first questions that sprung into people’s minds was whether they were related, whether this was instigated by the government. The prime minister quickly moved to distance himself and his government from the raids, claiming that the two agencies and the police were acting entirely of their own accord.

And the police themselves are on record as saying that the two events are unrelated. And so, it’s left to be seen, you know, whether new light will be shed on the real circumstances that led to these raids. It’s quite hard to accept, without inquiry as to whether there was absolutely no notice given, whether informally or formally, to the bosses in government.

AMY GOODMAN: And for people to understand, I mean, the ABC is the leading broadcaster throughout Australia. I wanted to bring Peter Greste into this conversation. We had you here in our studio after you were imprisoned for well over for year by Egypt with your two Al Jazeera colleagues.

You were working with Al Jazeera at the time. You certainly knew what it meant to be arrested, to not have rights, not to be even told at the beginning why the Egyptian authorities were holding you. Now you see the situation in Australia.

And I was wondering if you can talk about the laws around press freedom, if you have them in Australia. Amazingly, in this warrant, the warrant gave the police wide-ranging authority to view, seize, edit and destroy virtually any document it saw fit.

PETER GRESTE: Yeah, that’s right. Look, there are a whole host of questions in there, Amy, but let me deal with the very beginning of it, and that’s the way I felt when I heard about the news, because it did—I mean, even now I can feel my skin pricking up, thinking about the raids and what that would have felt like, because I know exactly what it was like to have agents burst into your room looking for evidence, and all of the confusion that surrounds that, the outrage that surrounds that.

But I never really honestly expected to see it take place here in Australia. And it seems to me that even though I’m not suggesting Australia is about to become an authoritarian state like Egypt anytime soon, I think that we are being pushed in the same direction by the same kind of imperatives around national security, the prioritising of national security over the human rights and democratic rights of citizens, largely because it’s much easier to make the political case for national security legislation, particularly when you see attacks in the streets and the consequences of that, but much harder to make the more abstract case for human rights and citizens’ rights, freedom of speech, freedom of the press and so on, until you see what that means in practical terms.

And that’s what we saw last week with these two raids. I think it’s very, very concerning to me, and I’m deeply worried.

Now, as you mentioned, we don’t have in Australia any explicit protection for press freedom written into the law, nothing about freedom of speech. Australia has no bill of rights. All we have is an implied right of political communications, that the High Court decided that was there as a function of our democracy.

They said that we live in a representative democracy, and you can’t have an effective representative democracy without political communication, therefore, that right is somehow inferred in the Constitution.

But without anything like the First Amendment in the United States here in Australia, without any explicit protection for press freedom, what we’re seeing is a lot of scope for our legislators to draft laws that really intrude on press freedom in all sorts of deeply troubling ways that make it much harder for journalists to protect their sources, make it much harder even for journalists to contact sources within government.

And so, what we’re seeing is a vast web of interconnected national security laws that, in all sorts of ways, make these kinds of raids that we saw last week possible.

I’m not so critical of the Federal Police for carrying out the raids. I accept that they were probably doing their jobs. And as we’ve been hearing, there may well have been some kind of political involvement in there.

But let’s take what the Federal Police have been saying at face value, that there was nothing political. If there was nothing political, if they were simply fulfilling their duties under the law, then, clearly, the law needs to change. And that’s what we need to start talking about.

JUAN GONZÁLEZ: And, Peter Greste, we have about a minute left, but I wanted to ask you, in terms of—who determines the violations of state secrets? Is there one centralised agency, or can various federal agencies decide to conduct these kinds of raids in Australia?

PETER GRESTE: No. Look, it’s quite difficult to know quite how the laws come into effect or come into force. I mean, let’s take a look at the data retention laws, the metadata. In any number of more than 20 agencies, government agencies can look into any Australian’s metadata without a warrant.

Now, they need to apply for a special journalist warrant if they want to investigate journalists’ metadata in a search for sources, but, otherwise, there is no—there is no warrant system. They can look anywhere, anywhere that they want.

And I think that’s the kind of scope that we’re talking about. That’s overreach. You talk to any lawyer, any civil rights activist, anyone who knows about the way the law operates, and they’ll acknowledge that that’s overreach. And we need to really start a vigorous conversation within this country about the limits of state power and the kind of ways that we need to encourage and support press freedom, and also the protection of whistleblowers, because, ultimately, these raids were in the hunt for the sources of these stories, for the journalists’ sources, for the whistleblowers that felt that these stories needed to be told.

AMY GOODMAN: Well, we have to wrap up right now, but we want to continue the vigorous discussion, and we’re going to bring folks Part 2 at democracynow.org under web exclusives.

Peter Greste, we want to thank you, UNESCO chair in journalism and communications, University of Queensland, founding director of the Alliance for Journalists’ Freedom, imprisoned for more than 400 days.

Also, Joseph Fernandez, a media law academic at Curtin University, Australia’s correspondent for Reporters Without Borders. Stay with us. I’m Amy Goodman, with Juan González.

Article by AsiaPacificReport.nz