Introduction

Australia is the world’s only democracy without a constitutional protection for press freedom. And since 9/11, Australia has produced more national security legislation than any other country on earth – more than 90 separate laws. In the absence of that constitutional restraint, many of those laws limit journalists’ ability to investigate the government and protect their sources.

At the same time, public confidence in journalism has sunk to an all-time low. The annual Edelman Trust Barometer says the media is the least trusted institution in Australia, well behind government, business and NGOs. Part of that decline is driven by a slide in journalism’s professional ethics and standards.

This has created a crisis in our democracy that is eroding our capacity to hold governments to account, and engage in healthy, well-informed public debate.
To address both issues, the Alliance for Journalists’ Freedom has developed a comprehensive model for reform that will both protect media freedom, help restore public confidence in journalism, and tackle the problem of mis and disinformation.

 

The Media Freedom Act

While constitutional reform would be the gold standard, we recognise that is unrealistic in Australia’s current political climate. Instead, we have drawn inspiration from the Human Rights Acts in Queensland, the ACT, and Victoria which all enshrine basic rights in legislation. Those Acts compel parliament to always consider human rights in enacting new legislation, and the courts to interpret existing laws in ways that are consistent with human rights.

Our Media Freedom Act essentially does the same thing. It injects a positive obligation to account for media freedom both when passing new laws and interpreting existing ones. In parliament, if a new piece of legislation could affect media freedom in any way, its proposer is required to table an “impact report” that explains its effect, how the legislation avoids unnecessarily limiting media freedom, and if a restriction to media freedom is unavoidable, why the public interest in that restriction is more important.

The Parliamentary Joint Committee on Human Rights is then required to review the legislation and report to both houses about its impact on media freedom and how it might be mitigated.

In court, whenever a case involving media freedom comes up, judges are obliged to interpret those laws in ways that are consistent with the principles of media freedom. Even if there is no explicit carve-out for journalists, the court must weigh up the public interest in proceeding with a prosecution against the public interest in the transparency and accountability that a free press brings to our democracy.

To stop investigating agencies unduly seizing journalists’ data, our MFA draws from the Police and Criminal Evidence (PACE) Act in the UK which has a system of contestable production orders.

Any time a law enforcement agency wants to search journalist’s data, they must first seek a production order that gives the journalist an opportunity to contest it on public interest grounds. We have written a similar scheme into our MFA. And using a scheme in the Queensland Evidence Act, if there is no time for drawn-out arguments in court (to stop an imminent terrorist threat for example), any data or documents the agency seizes must go into a sealed container so the question of media freedom can be argued about in court later.

 

Definitions

Central to any effective legislation is a clear definition of the thing the law is seeking to protect. Our MFA draws on the Victorian Evidence Act which, in part, describes journalism as a process that is accountable (through a complaints process) to a recognised code of conduct or set of professional standards.

We believe this is the solution.

The law should not be protecting a particular class of self-appointed individual, but rather the role that journalism plays in our democracy. At its core, that role is defined by a commitment to principles such as accuracy, fairness, balance, transparency and so on. To help law enforcement agencies and the courts identify who is producing journalism, our MFA refers to “member journalists”. These are people producing content that is in some way already accountable to a code of conduct or set of professional standards, whether through their employer or some other external mechanism. Under the law, member journalists enjoy a ‘rebuttable presumption’ that their work deserves protection. In other words, the burden falls to the law enforcement agency to show why the journalist is either failing to uphold their code of conduct, or there is a higher public interest in an investigation or prosecution that overrides the public interest in media freedom.

If a law enforcement agency wants to search the data of a journalist who does not meet the definition of “member journalist”, (who is not accountable to a code of conduct) such as an independent freelance journalist or a volunteer for a local news service, they must still give that person the right to object, but it is up to the target of their investigation to show the court that their work meets the required standard.

 

Voluntary Professional Association

Such a definition presents the media industry with an opportunity to set up its own professional association. In the same way that accountants, engineers or surgeons have their own organisations, Journalism Australia could admit members who show they know and understand the law and their professional ethics, and apply them routinely to their work. JA would hold members accountable through a complaints mechanism, and allow them to badge their work with a quality kite mark next to their by-line.

This would help the public spot work that is produced to a high standard, and distinguish it from other content that may not be as reliable. While this is not a complete solution to the problem of mis and disinformation, it will help restore some measure of public confidence in high quality Australian journalism.

Crucially, membership of JA would help law enforcement agencies and the courts identify those journalists who deserve the presumption that their work is protected.
Such a system must be voluntary, so nobody is prevented from publishing content and nobody’s freedom of speech is limited in any way.