ABC calls for decriminalisation of journalists and whistleblowers to safeguard public right to know | radioinfo

ABC calls for decriminalisation of journalists and whistleblowers to safeguard public right to know

Wednesday 26 June, 2019

ABC Managing Director David Anderson has called on the Commonwealth Government to decriminalise journalism and bolster protections for whistleblowers to safeguard the public right to know.

 Mr Anderson told the National Press Club (NPC) today that urgent reform is needed to laws that inhibit the media’s ability to report on matters of public interest. “The rhetoric of the importance of a free media to Australian democracy is not being matched by the reality.
 
“Journalists are increasingly accused of crimes for performing their job. Whistleblowers, whose brave interventions are so important to identifying wrongdoing, run the risk of being cowed out of existence. Freedom of Information has failed to deliver transparency. Defamation laws appear only to protect the rich and powerful.”
 
Mr Anderson spoke at the NPC alongside media colleagues Michael Miller, Executive Chairman of News Corp Australasia, and Nine CEO Hugh Marks, in a united response to the AFP raids on the ABC’s Ultimo office and the home of News Corp journalist Annika Smethurst. See the full text of Anderson's speech below.

Nine's CEO, Hugh Marks says  “As a society we shouldn’t fear truth. We shouldn’t fear debate. We shouldn’t fear opinions. The Australian public’s right to know makes our democracy function. We are operating at a time when a combination of factors – including technological change, bad legislation across several fronts and overzealous officials in the judiciary, bureaucracy and security services – have steadily eroded the freedom within which we the media can operate.”  Nine now owns a majority share in Macquarie Radio Network, as well as tv stations and newspapers.
 
News Corp's Michael Miller says, “We support laws that keep Australia and journalists safe. We believe in being tough on terrorism and strong on border security. With the current laws, journalists, and even support staff, face jail for handling information which they may not even know is secret or sensitive. We do not accept that safety has to equal secrecy.” Michael Miller was previously the Chairman of Australian Radio Network parent company APN.

 
The ABC has lodged an application in the Federal Court of Australia to set aside the warrant that authorised the police raid and to demand the return of seized files.
 
Mr Anderson’s address to the NPC outlined four key areas for urgent legal reform, including the need to decriminalise journalists and public interest whistleblowers, raising the bar for search warrants and protection of confidential sources, and breaking the culture of secrecy by overhauling the FOI system.
 
“While it is heartening to know that the Government regards a free media as a foundation stone of democracy, nowhere is that articulated or entrenched in law,” he said. “Decriminalising journalism is a mandatory first step…No one deserves to be punished for pursuing information that is clearly in the public interest.”
 
See also Peter Saxon’s comment A free media vs national security. Is it either or?

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Address by ABC Managing Director, David Anderson, to the National Press Club panel session Press Freedom: On the Line, 26 June 2019
 
Introduction
 
On behalf of all those present, I would like to start by acknowledging that we are meeting on the traditional lands of the Ngunnawal people and I pay my respects to Elders, past, present and emerging.
 
It is a great privilege to be here today joining Michael Miller and Hugh Marks to talk directly about a fundamental tenet of democracy. That is, the public’s right to know and to use that knowledge to participate fully in the affairs of the nation.
 
I would also like to acknowledge the journalists across our organisations who work tirelessly and passionately every day in pursuit of the truth and in the public interest.
 
As we have seen over recent years, politics in Australia is a blood sport. The only activity that could surpass it for intensity and venom might be the media game, which makes today all the more remarkable.
 
So, what brings us together today – as an unlikely coalition of the willing?
 
Issues of national importance. Issues core to our democracy. An informed electorate, holding the powerful to account, shining a light into dark places and providing a platform for the weak and oppressed.
 
That’s why we’re here. The stakes are so high.
 
It is my role to open proceedings and outline the barriers that hinder the media’s ability to perform its primary role: informing the public.
 
Given the events of the past few days, with the ABC and News Corp committed to challenging warrants against our reporters for doing their jobs, it is important that we put this public platform to best use.
 
Public trust
 
Each of our media organisations observe the same journalistic principles and pursue the same overall objective: speaking the truth to the community. We have an obligation to provide valuable context and an independent fact base of information to the public. Our trust is built on getting that right.
 
Overwhelmingly, Australians have benefited from the efforts of our journalists. Working competitively and occasionally in unison, we use our resources to inform the public and to help make Australia a better place for all of us.
 
Instinctively, I think of the efforts of driven reporters like the ABC’s Chris Masters who defied intimidation to expose corruption at the highest levels of Queensland government in The Moonlight State
 
I also think of the 2014 joint Four Corners/Fairfax investigation into reprehensible bank practices that led to a royal commission.
 
And I think of the current royal commission into aged care. This would not have happened without ABC Investigations and Four Corner’s crowd-sourcing techniques and digital skills to expose shocking mistreatment of the old and frail.
 
I refer also to the investigations that prompted the recent police raids that have received international condemnation. The AFP raid on our Ultimo headquarters directly targeted a series of stories by Dan Oakes and Sam Clark called “The Afghan Files”. It was based on defence force documents and many other sources that alleged Australian special forces were involved in the potential unlawful killing of unarmed civilians.
 
These investigations demonstrate why an unimpeded media is so important to the public.
 
Press freedom is a proxy for public freedom.
 
We all want to be reassured that our parents and grandparents are being cared for appropriately.  That our banks are not ripping us off.  That our elected officials are acting in our best interests and that we are properly informed about the activities of our military, law enforcement and security agencies. We are there to protect and promote our right to know.
 
A fundamental right
 
It is impossible to overstate the importance of the right to know. Access to information underpins other human rights.
 
Knowledge truly is power. But power can only be exercised when it is acknowledged and protected. 
 
Even a rudimentary stocktake of the Australian system shows that the right to information is not effectively exercised or protected. While it is heartening to know that the Government regards a free media as a foundation stone of democracy, nowhere is that articulated or entrenched in law.
 
The legacy is a patchwork of laws that make it difficult, sometimes impossible, for the media to do its public duty.
 
Journalists are increasingly accused of crimes for performing their job. Whistleblowers, whose brave interventions are so important to identifying wrongdoing, run the risk of being cowed out of existence. Freedom of Information has failed to deliver transparency. Defamation laws appear only to protect the rich and powerful.
 
The confronting raids on ABC and News Corp have served at least one useful purpose, exposing the extent of deterioration in our public discourse.
 
We are committed to working constructively with all sides of politics to identify areas of weakness and to push for meaningful, urgent reform. This reform must identify the areas where the balance between the public right to information and other priorities, like national security, has tipped too far. And to restore that balance.
 
Restoring the balance
 
Decriminalising journalism is a mandatory first step. The Criminal Code and the Defence Act both make it an offence for reporters to receive certain types of information.
 
No one deserves to be punished for doing their job and pursuing information that is clearly in the public interest. Some of these laws do not even allow a public interest defence to be raised.
 
If a free media is a foundation stone of democracy, then protection of whistleblowers is the mortar that binds it in place. Most investigations would not have happened without the courage of whistleblowers, risking their reputations – and sometimes their lives – for the greater good.
 
Intimidation of the media is often seen as cover for the main game by authorities embarrassed over public disclosures – silencing the whistleblowers.
 
It is vital that we work collectively to stiffen protections for those who seek to come forward, particularly in the public sector. Quarantining national security and law enforcement information from the ambit of whistleblowing laws does nothing to promote confidence in public administration. There is no justice in prosecuting whistleblowers or sources when the public has a legitimate right to the information.
 
Freedom of Information law has now become a vehicle for strengthening secrecy and reducing transparency. Authorities have become adept at classifying documents as exempt and using go-slow techniques to delay publication. Rejections have reached record levels and the external review process is under-resourced and failing. Inevitably, this puts even more pressure on whistleblowers to go public.
 
Maximum disclosure
 
I approach debate on public policy issues from a simple premise: the better informed the participants, the better the discussion. A fully functioning democracy requires a fully informed public.
 
It’s all too easy for authorities to tag information as “Top Secret” or “Confidential” to prevent access and debate.
 
Such behaviour ultimately becomes self-destructive. Monash University associate professor Johan Lidberg has identified 64 new laws and amendments relating to Australia’s national security since the September 11 terror attacks, believed to be an international record.
 
While we would all concede the need to adapt to new security threats, it is difficult to see where the right balance has been struck between security interests and the public right to know.
 
Conclusion
 
This paints a fairly bleak picture. The rhetoric of the importance of a free media to Australian democracy is not being matched by the reality. Our journalists have too many impediments in their path, including the unacceptable risk of being treated as criminals.
 
No-one is above the law, however no-one should be above scrutiny that is clearly in the public interest.
 
The AFP raids have been a wake-up call. We are collectively guilty of becoming too complacent, fighting bad laws and bad practices as individual battles, rather than as a fundamental assault on public rights. We need to do a better job of highlighting the problems and the benefits of a free media.
 
As managing director of the ABC, I am in constant awe at the fearless dedication and skills shown by our journalists across the country.
 
Each day, in many ways, from our international bureaux through to our state and national newsrooms, and our local and regional centres, across TV, radio and online, we are holding the powerful to account and speaking the truth to our audiences. Whatever the obstacles, we will continue to serve that mission.
 
Clearly, we are at a crossroads. We can be a society that is secretive. And afraid to confront sometimes uncomfortable truths. Or we can protect those who courageously promote transparency, stand up to intimidation and shed light on those truths, to the benefit of all citizens.
Thank you.
 

 
The group of Australian media leaders has a six point plan for improvement of media and whistleblower protection laws, articulated at the NPC event. These are the six key points the coalition of media leaders wants reformed:

 

1. THE RIGHT TO CONTEST THE APPLICATION FOR WARRANTS FOR JOURNALISTS AND MEDIA ORGANISATIONS

Applications for the issue of all warrants must be contestable. This requires:

  • The Attorney-General’s approval of applications for all warrants regarding journalists and media organisations
  • Applications for all warrants must be made to an independent third party with experience in weighing evidence at the level of a judge of the Supreme Court, Federal Court or High Court
  • The journalist/media organisation being notified of the application for a warrant
  • The journalist/media organisation being represented at a hearing, presenting the case for the Australian public’s right to know including the intrinsic value in confidentiality of journalists’ sources and media freedom
  • The independent third party deciding whether to authorise the issuing of a warrant – or not – having considered the positions put by both parties
  • A warrant can only be authorised if the public interest in accessing the metadata and/or content of a journalist’s communication outweighs the public interest in NOT granting access, including, without limitation, the public interest in: the public’s right to know, the protection of sources including public sector whistle-blowers; and media freedom

The journalist/media organisation has a reasonable period after the warrant is authorised to seek legal recourse including injunctions and judicial review

A transparency and reporting regime covering applied for and issued warrants
 

2. PUBLIC SECTOR WHISTLE-BLOWERS MUST BE ADEQUATELY PROTECTED – THE CURRENT LAW NEEDS TO CHANGE

Public Interest Disclosures

The Public Interest Disclosure Act purports to provide protections for public sector whistle-blowers. It falls a long way short of this. Changes required include:

  • ‘Protections’ in all cases require review, public service whistle-blowing should be encouraged and adequate protections must be provided including protections for external public disclosure
  • Protection for intelligence agency personnel and staff of Members of Parliament
  • Expand the public interest test to remove bias against external disclosure
  • Presumption of criminal liability should not lie against the media for using or disclosing identifying information during the course of news gathering
  • The ability for identifying sources via journalists’ communications and metadata (Journalist Information Warrant Scheme) makes a mockery of the shield law that protects the identity of journalists’ sources once proceedings have commenced (ARTK submission to be made to PJCIS)

Proposed Commonwealth Integrity Commission

The framework for the proposed Commonwealth Integrity Commission should safeguard public broadcasters’ role as a provider of public interest journalism. It should ensure confidential sources continue to have confidence to bring allegations of corruption in public service agencies to the attention of public service broadcasters’ journalists, without fearing that their documents and/or identity will be revealed, and without public broadcasters’ journalists being at risk of being called before a hearing to reveal their sources. Hearings on public sector corruption should be public so that media companies can report on them.
 

3. A NEW REGIME THAT LIMITS WHICH DOCUMENTS CAN BE STAMPED SECRET

Legal experts such as Bret Walker SC, who previously held the Commonwealth role of Independent National Security Legislation Monitor (INSLM), have recommended ‘new overarching legislation that defines in a restrictive fashion what information must be kept secret’. We support this. It must include a transparency requirement via auditing and reporting requirements

4. A PROPERLY FUNCTIONING FOI REGIME

The Government can also shut down reporting through the FOI process. FOI laws require meaningful attention and improvement in all aspects. A review of FOI laws must include a panel of FOI ‘user’ experts and this must include specialist journalist representatives.

5. JOURNALISTS MUST BE EXEMPTED FROM NATIONAL SECURITY LAWS ENACTED OVER THE LAST SEVEN YEARS – THAT WOULD PUT THEM IN JAIL FOR DOING THEIR JOBS

We have provided detailed analysis regarding the following, including that exemptions for public interest reporting are essential:

  • Section 35P of the ASIO Act
  • Journalist Information Warrant Scheme at Division 4C of the Telecommunications Interception and Access Act
  • Criminal Code Act, Part 5.2 – Espionage and related offences; Part 5.6 – Secrecy of information, section 119.7 – Foreign incursions and recruitment; section 80.2C – Advocating terrorism
  • Crimes Act – sections 15HK and 15HL – Controlled operations, unauthorised disclosure of information; section 3ZZHA – Delayed notification search warrants, unauthorised disclosure of information

6. DEFAMATION LAW REFORM

We are actively involved in the current Council of Attorney’s General review of the unified defamation law. We have asked for the following:

  • Update the law to be fit-for-purpose for digital news reporting
  • Fix the aspects of the law which do not operate as intended
  • Ensure the Commonwealth is a signatory to the Intergovernmental Agreement (and consequential amendments to the Federal Court Act) so that defamation law and procedures is aligned across all jurisdictions, including in the Federal Court
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