The raid on the ABC shows we need a law to protect journalists and their sources
This article was originally published in The Guardian.
Democracy is, by definition, government by the people. Politicians act on behalf of those who employ them; that is, us Australian voters and tax-payers.
As their employers, we have both a right and a responsibility to know what is being done in our names. The means by which that is done is through good journalism. That is why the recent raids by the Australian Federal Police on the Daily Telegraph journalist Annika Smethurst, Ben Fordham from 2GB, and the ABC are a serious threat to the most fundamental role that the media plays in a democracy.
Of course, there are things that governments need to keep secret. Whether they are the financial or health records of private citizens, or the operational details of our security services, there are places that nobody outside of the agencies involved should have access to. But what happens when things go wrong? What happens when someone abuses the power or authority that we, the voters, have invested in them? What happens when the internal mechanisms of accountability and transparency break down? Or when government officials use the cloak of ‘national security’ to cover up something that we all ought to know about and debate in public?
The Prime Minister is right when he says that the police were simply following the law. “Australians believe strongly in the freedom of the press, we have clear rules and protections for freedom of the press and there are also clear rules protecting Australia’s national security,” he said on Tuesday. “And everyone should operate in accordance with all those laws passed by our parliament.”
But in recent years, parliament has passed a slew of national security laws that in some way limit and even criminalize the legitimate work of journalists. The effect might not be deliberate – it may be too much to suggest there is a clear conspiracy to silence the press – but the effect is still deeply damaging to the very foundations of the way our democracy works. Whether it is section 35p of the ASIO act, or the Foreign Fighters legislation, the Data Retention act, or the Foreign Interference and Espionage Act (to name a few), all in some way make it dangerous for journalists or their sources to expose and report on issues within government that you and I ought to know about.
That is why my organization, the Alliance for Journalists Freedom, has just published a White Paper on the subject. We are not suggesting that those laws be repealed – clearly, we need to update our national security framework to deal with evolving threats – but if in the process of trying to make us safer, we undermine the very system that has made us one of the safest countries on the planet in the first place, something has gone terribly wrong.
Many of those laws include a “public interest” defence, allowing journalists to argue in court that their work was legitimate, but that is not enough. It doesn’t resolve the chilling effect that the AFP raids will inevitably have on future reporting, intimidating both potential sources and journalists who may balk at stories that will put them at risk of imprisonment or at best, facing lengthy court cases and hefty legal bills.
In the White Paper, we argue that there is a better way.
The tool we recommend is a Media Freedom Act that positively puts the role of the press in the middle of our legal system. At the moment, there is nothing in Australian law that explicitly protects press freedom in the way that the First Amendment does in the US constitution.
Such an act would recognise the fundamental importance of national security and the protection of certain Commonwealth activities and the identities of key employees, whilst still providing a basis for journalists to investigate and report on government misconduct.
More than simply making reporting “in the public interest” a defence; it would make it an exception from prosecution. That isn’t to suggest that journalists would be immune, but the onus would be on the security agencies to show that the exception of “public interest reporting” does not apply, before charges are laid. In effect, it restores the assumption of innocence which the current legislation has overturned.
There is no evidence that the journalists that the AFP targeted over the past few days did anything that genuinely damaged national security. Rather, those journalists exposed issues that we needed to know about, needed to debate, and in some cases needed to change.
To be clear, this is not simply about protecting the rights of journalists to stick their noses into the inner workings of government. This is about ensuring the kind of transparency and accountability that has helped make Australia one of the most stable, prosperous and peaceful places on the planet.
Prof. Peter Greste is UNESCO Chair in Journalism and Communication at the University of Queensland, and a founding director of the Alliance for Journalists Freedom.
Media: Olivia Pirie-Griffiths, [email protected], 0400 716 181
Photo credit: David Gray/AAP