Lawyers back Senate call for protections for whistleblowers, journali

7th Feb 2018

Legislative protection for journalists, free speech and whistleblowers is a crucial step in ensuring that public interest journalism can survive and even thrive, the Australian Lawyers Alliance (ALA) said today.

The emphasised the importance of the broader legal landscape in ensuring that public interest journalism can thrive. The ALA provided a submission to the Committee and presented evidence during hearings.

ALA spokesperson and barrister Dr Andrew Morrison RFD SC welcomed the release of the report by the Committee, which highlighted the disproportionate strength and scope of recent national security legislation, potentially in conflict with Australia’s constitutionally-protected freedom of political communication.

“Public interest journalism requires a legal landscape that facilitates disclosures,” Dr Morrison said.

“However, in recent years, Australian law has increasingly restricted the ability of journalists to report on matters of national importance, particularly relating to national security and border protection,” Dr Morrison SC said.

“Reporting that poses a genuine threat to national security can legitimately be restricted where it is necessary for national security purposes, and proportionate to the threat faced.”

“However, even since the ALA provided evidence to the Committee, the government has proposed new laws which could result in journalists being gaoled for publishing information that merely embarrasses politicians but poses no genuine threat to national security, such as details about the Dastyari affair,” Dr Morrison SC said.

Dr Morrison said the recent swathe of national security legislation was problematic in how it related both to international law and to Australia’s constitutionally protected freedom of political communication.

“Laws that restrict reporting on these issues are only valid under international law if they are necessary and proportionate to the threat faced. These laws go much further than that,” Dr Morrison said. “They are also potentially in conflict with the constitutionally protected freedom of political communication, which was recognised by the High Court as an essential freedom underpinning parliamentary democracy.

Before the Committee, ALA spokesperson Anna Talbot highlighted the importance of public interest journalism to the nation.


“Public interest journalism shines a light on government and ensures that it operates within the confines of the law and in the public interest,” Ms Talbot told the Committee.

“True accountability…requires vigilant protection of the rights to both freedom of speech and privacy for both journalists and the general population. Journalists should not be punished for any public interest reporting that might cause embarrassment or reveal human rights violations, misappropriation, gross inefficiency or other wrongdoing.”

Dr Morrison SC argued before the Committee that the ASIO Act and the Border Force Act ‘…inhibit whistleblowers, public comment and the disclosure of information which would generally be in the public interest and yet would not, in practice, have any significant effect upon national security or, indeed, border force operations in the true sense.’

Ms Talbot said that robust public interest reporting also required strong whistleblower protections.

“Australia’s laws are weak and fragmented, meaning that sources’ ability to communicate with journalists can be inhibited, and reporting on matters in the public interest, such as corruption or illegal activity on the part of public officials, can be illegal,” Ms Talbot said.

“If there’s illegal activity happening, and there’s no threat to national security if that illegal activity is revealed, there’s a clear public interest in understanding that illegal activity has happened.”

In its report, the Committee found that public interest journalism might be inhibited merely by the scope of unclear national security legislation, discouraging some journalists from reporting on matters of significant public importance. A cross-party recommendation was that ‘the Australian Law Reform Commission conduct an audit of current laws that impact on journalists reporting on matters that touch on or focus on national security and border protection, to identify and analyse unjustifiably harsh or draconian laws, inconsistencies in the law and any lack of clarity in the law regulating the work of journalists in this context, and to consider whether further reform is needed to achieve an appropriate balance between the need to preserve national security and the need for journalists to be able to carry out their work in the public interest.’

Dr Morrison SC said that the ALA would strongly support such an inquiry, which could build on the freedom of speech section of the Australian Law Reform Commission’s Freedoms report from 2016.

The Senate Committee’s report can be found here.

Tags: Access to justice