Threatening journalists with jail does not serve the public interest

23rd Nov 2017

Laws that prohibit reporting on the actions of governments to ensure that they operate within the law undermine democracy, the Australian Lawyers Alliance (ALA) said today.

Today the ALA appeared before the Senate Select Committee on the Future of Public Interest Journalism, which is examining the impact of search engines, social media, and disinformation on the future of the media. The ALA explained to the Committee that public interest journalism is also threatened by legislation related to national security and border protection.

Barrister Dr Andrew Morrison RFD SC and lawyer Anna Talbot, representing the ALA, emphasised the importance of striking an appropriate balance in restrictions affecting reporting on government activities.

“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 said.

“True accountability is possible only where journalists are able to report in a frank and fearless manner. This requires vigilant protection of both the rights to freedom of speech and privacy, for both journalists and the general population.”

However, Ms Talbot said provisions in the ASIO Act and the Australian Border Force Act put this tradition of fearless public interest journalism at risk by providing for severe criminal penalties, such as lengthy prison sentences, for reporting on certain government activities.

“Much of this legislation grants governments powers well beyond those that they have traditionally enjoyed,” Ms Talbot said. “There are real risks that such powers could be misused or exploited, or even that embarrassing or dangerous mistakes might be made. Journalists need to be able to report on such events without fearing they will be sentenced to prison as a result.”

Dr Morrison told the Committee that the broad secrecy provisions in the ASIO Act meant that a journalist could inadvertently fall foul of the Act by reporting on matters of clear public interest, such as corruption, without realising that reporting on the matter was prohibited, because it was related to a secret special intelligence operation.

Dr Morrison also noted that the amended Australian Border Force Act is so broadly drafted that reporting on misconduct by contractors operating immigration detention facilities, which resulted in investigation and sanction of the contractor, could give rise to prison terms for the journalist, if it resulted in competitive detriment for the contractor or was reasonably expected to prejudice the prevention of an offence.

Ms Talbot said that under the ASIO Act, reporting around warrants that allow for compulsory questioning, including detention for that purpose, could give rise to prison sentences of up to five years.

“There are no public interest exemptions from the liability that can arise from revealing these details, and there is no requirement that any threat, to national security, public safety or anything of that nature, be established before the penalties become available,” Ms Talbot said.

“Combined with the lack of privacy facilitated by the Telecommunications (Interception and Access) Act, these laws pose a real risk that information that the public has a right to know about the way that government officials exercise their powers, will never come to light. This poses a serious risk to our democracy, and the accountability of governments to the people that they serve.”

Ms Talbot told the Committee that a Human Rights Act or similar binding document could help public interest journalism to thrive, by clarifying and enshrining the rights that all people in Australia are entitled to. She also referred to international sources that provide guidance in striking the right balance between important national security considerations and the ability of journalists to report in the public interest.

“Reporting on matters that are in the public interest should only be limited where those restrictions are necessary, and proportionate to the threat faced,” Ms Talbot said. As the law currently stands, journalists risk prison sentences for reporting on serious government misconduct, such as corruption or illegal activities, which have nothing to do with national security. Our democracy is the weaker for it.”

Tags: Access to justice