A free press and freedom of speech are fragile rights
13th Jun 2019
On successive days last week the Australian Federal Police raided the homes and workplaces of journalists, as part of a hunt for the sources of stories about a proposal to increase surveillance powers of citizens and the alleged conduct of Australian military in Afghanistan.
The raids come at time when freedom of the media is a much discussed topic, courtesy of the United States recently filing charges against Australian publisher and journalist Julian Assange under that country’s espionage laws.
While this is not the first time journalists have been raided by police, the events of last week should concern us. At stake are freedom of speech and the ability of the media to properly scrutinise executive government. There is an urgent need to provide greater protection from criminal prosecutions for the media and their sources. In a democracy, proper scrutiny of the actions of the security agencies, police and the military is essential. These are organisations that wield enormous power and if they know that those who lift the veil on their conduct will be harassed and bullied by the police, then they will be much more tempted to act with impunity.
The raid on News Limited journalist Annika Smethurst on Tuesday last week on the face of it looks like an attempt by security agencies and that behemoth, the Department of Home Affairs, to send a warning shot across the bows of those who are tempted to reveal their grabs for ever more power. Smethurst broke a story on April 29 last year that Home Affairs and the electronic spy agency, the Australian Signals Directorate (ASD), were proposing that ‘emails, bank records and text messages of Australians could be secretly accessed by digital spies without a trace, provided the Defence and Home Affairs ministers approved’. It was an alarming proposal, to say the least, and the then government of Malcolm Turnbull binned the idea with the heads of Home Affairs, ASD and Defence issuing a statement two days later denying the plan.
So if the proposal was so quickly scotched, how can it be said that there was any public interest in the heavy-handed rummaging through Smethurst’s Canberra home (including, apparently, searching her underwear drawer) last week by police? Or is this the modus operandi of Home Affairs and its security state allies in government? That is, that anyone who steps out of line by telling the world what they are up to faces a jail cell for years.
The case of the raid on the ABC is even more troubling. The ‘crime’ the ABC’s Dan Oakes and Sam Clark are said to have committed was to reveal in a 2017 series called The Afghan Files ‘reports on at least 10 incidents between 2009-2013 in which [Australian] special forces troops shot dead insurgents, but also unarmed men and children’. Two of these incidents, one involving the alleged killing of a six-year-old child among other civilian casualties, and another involving an Afghan civilian riding his motorcycle allegedly being killed by special forces, are the subject of an investigation by the Inspector-General of the Australian Defence Force.
The lessons of history tell us that it is essential that the public knows about abuses or allegations of abuse involving those who fight wars in their name. Cover-ups and preventing good people from revealing the truth of what they witnessed in war zones should be anathema to us all. Yet the message sent by the AFP raids at the ABC’s headquarters in Sydney is that revealing troubling military actions is unwelcome in Australia. It is the same message the US is peddling as it relentlessly hunts Assange, who revealed American troops’ atrocities in Iraq and Afghanistan.
Freedom of the media and freedom of speech are fragile rights. They can be curtailed and undermined by executive government at any time. Look at the laws passed by the Abbott government, and supported by the ALP, that made it a criminal offence to talk about what happens in immigration detention. Or the cloak of secrecy that has been cast over the case of Bernard Collaery, the ACT lawyer, who with Witness K revealed Australia’s misconduct in East Timor when it bugged its government offices in the early 2000s.
There needs to be much better protection for journalists and their sources when it comes to the threat of criminal prosecutions under Commonwealth and state laws that prohibit the revelation of material deemed to be secret because it is said to impact adversely on the national interest. One way to do that is to provide for a defence of public interest for journalists’ sources. There is, since last year, a limited public interest defence available to the media in relation to the publication of some security matters but it does not extend to sources. The idea behind its limits can only be to discourage the truth from being revealed.
We must enshrine freedom of speech and freedom of the media in our law. Our failure to do so leaves open the reality that our media become timid, something that should be anathema in a genuinely liberal democracy.
This is an edited version of an article originally published by The Sydney Morning Herald on 6 June 2019. It has been republished with the author’s permission. The original article can be found here.
Greg Barns is criminal justice spokesman for the Australian Lawyers Alliance and is adviser to Julian Assange's Australian campaign.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).