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Freedom of the press

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Journalism is not a crime

Marcus Strom
Federal President, MEAA Media

The two raids by the Australian Federal Police (AFP) on journalists and media organisations this week represent a disturbing attempt to intimidate legitimate news journalism that is in the public interest.
They suggest that no media organisation is immune from government attacks on press freedom.
For journalists, there is nothing more important to our profession than the freedom of the press. Without it, we cannot effectively perform our jobs of informing the public.
Over coming days, the staff of newsrooms around the country will be taking collective action to say “journalism is not a crime”.  Read on for how you can say no to assaults on press freedom.
Attacks on journalists are an attack on the public’s right to know. Laws that allow daily police raids threaten the public’s right to know.
Our laws are meant to preserve democracy — not undermine it.
The raids have had global media coverage — from the BBC to Al Jazeera to The New York Times.

Your union, MEAA, has led the public response. Read our media release after Wednesday’s raid on the ABC here.
As journalists, we must stand together to condemn these assaults on our profession and the public interest.
Whether you work from home as a freelancer, or in a large metropolitan newsroom, you can join your colleagues by doing the following things:

  1. Print out this selfie sign and take a photo of yourself/your colleagues holding it. Then share it on social media with the hashtags #AFPraids, #JournalismNotaCrime and #pressfreedom. Don’t forget to tag @withMEAA.
  2. Sign up to MEAA’s press freedom campaign, and the Press Freedom Australia Facebook page.

The raids this week did not take place in isolation.
Over the past decade or so, successive governments have passed multiple laws under the guise of national security which have effectively criminalised journalism. This has created an environment in which police raiding journalists is becoming normalised, and it has to stop.
The laws need to change so the free press can do its job without fear or favour.
The public interest demands it.
The only thing that can stop the raids is to change the law to introduce positive protections for journalists and whistleblowers from the threat of warrants, searches, arrests and imprisonment for reporting the truth.
There will be other opportunities in coming weeks for you to join a national campaign to change the laws.

Media must challenge to protect our freedom

Chris Merritt​

​Legal Affairs Editor,​ The Australian

Now that the Australian Federal Police has picked a fight over press freedom, the media has little option but to take this issue to court. Annika Smethurst, of News Corp Australia, needs to be the last reporter to have her underwear drawer scrutinised by Constable Clod.​

​The ABC has been subjected to a raid of its own, so it looks like the AFP believes this is a terrific way of finding the names of those who provide journalists with confidential information.​

​But the real culprit here is not the AFP — it is the government now led by Scott Morrison. Its attempt to distance itself from this affair ignores the Coalition’s role last year in shaping the law.​

​​And it’s the law that guarantees police will continue to raid journalists’ homes and workplaces for the names of their confidential sources.​

​The Law Council last year suggested a mechanism to the government that, had it been adopted, could have removed the incentive to conduct those raids.​

​In the midst of the debate over changes to national security laws, the government changed tack and gave reporters a new defence that protects the publication of secrets that the reporter believes, on reasonable grounds, to be in the public interest.​

​But the government rejected the Law Council’s proposal for the same defence to be made available to those who provide such information to the media.​

​This gave rise to the current lunacy: public interest disclosures such as those made by Smethurst are defensible if made by a journalist, but the same information is not defensible if disclosed by a whistleblower in the federal public service. That inconsistency might explain why AFP officers targeted Smethurst and the ABC and why more reporters will inevitably be raided.​

​The main game, from the perspective of those who rejected the Law Council’s suggestion, appears to be all about finding reporters’ confidential sources and punishing them regardless of the public interest in what they revealed, and regardless of how many journalists and newsrooms are subjected to raids.​

​The government might be embarrassed but it cannot escape responsibility for raids carried out under the aegis of federal law.​

​The long-term solution is a public-interest defence for whistleblowers in the federal public service. This would address the gaps in the federal whistleblower law — the Public Interest Disclosure Act — and eliminate the incentive to raid journalists.​

​The limitations of the federal whistleblower scheme should be apparent from the fact that Australian Taxation Office whistleblower Richard Boyle tried in vain to use this mechanism. He is now on bail after being charged with breaching laws on handling public documents and recording telephone calls.​

​But the raids also require a more immediate response. Instead of merely expressing outrage, the media industry should consider running a constitutional challenge aimed at striking down the legal basis for the search warrants authorising both raids.​

​Media lawyer Justin Quill, who provides legal advice to The Australian, explains the logic for such a challenge: restrictions on the dissemination of information are vulnerable unless they are appropriate and adapted to the constitutional implication that the community should be informed about political and electoral information.​

​This does not outlaw all restrictions on the free flow of information, and such an argument would almost certainly fail before the lower courts.​

​But it gives the High Court the final say on whether the legal basis for the raids on Smethurst and the ABC are appropriate and adapted to the requirements of the constitutional implication.​

​It could be argued that both raids do not meet that test and were, therefore, without a proper basis in law. They both arose in reaction to news reports that could easily be characterised as relating to political issues that would have electoral consequences.​

​In Smethurst’s case, it was a move inside the federal bureaucracy to allow electronic spying on Australian citizens. For the ABC, it was a report about allegations of unlawful killings by Australian forces in Afghanistan.​

​If the outrage inside the media is real, Quill believes the next step should be a challenge arguing that the Smethurst warrant was constitutionally invalid because of the chilling effect on the flow of political and electoral information. The same logic should apply to the ABC raid.​

​Attorney-General Christian Porter told Radio National’s Fran Kelly yesterday that the target for the Smethurst raid was not that reporter, but her source. That statement should be exhibit one in the media’s constitutional challenge.​

​Even if these raids fail to identify the people who provided information to the media, they will have the effect of discouraging potential whistleblowers from coming forward to reveal similar wrongdoing. And that could be their undoing.​

​It could mean the warrants that underpin the raids have not been adapted to take account of the chilling effect on the free flow of information from whistleblowers. And that has an adverse impact on the community’s implied constitutional freedom to have access to political and electoral information.​

​This has nothing to do with the adverse impact of these raids on journalists. The implied freedom exists to protect Australian democracy — not the media. That is the only reason the High Court has identified this freedom as one of the necessary implications that are an unwritten but core part of the Constitution.​

Tags: creative_industries, journalism