Opinion Piece: Journalists to keep government accountable
21 October 2019
Opinion Piece by Law Council of Australia President, Arthur Moses SC - published in The Australian, Monday, 21 October 2019.
Greater protection of the media bolsters democracy and benefits all Australians.
Power should not exist without accountability.
Australia's media is critical to holding government and its agencies accountable for their actions. The Law Council has strongly advocated for greater protections for Australia's independent press because transparent government leads to better decision-making and a stronger democracy.
As Nelson Mandela said in February 1994: "A critical, independent and investigative press is the lifeblood of any democracy. It must enjoy the protection of the constitution, so that it can protect our rights as citizens." Any move to restrict press freedom matters to all Australians not just politicians, lawyers or journalists.
Our rights as Australian citizens, while hard-won over generations, can be easily eroded by government. To ensure governments are held to account for their actions, greater safeguards are needed to protect journalists who report without fear or favour in the public interest.
The Law Council believes disclosure of classified information by the media should only be criminalised if it can be proven the disclosure was not in the public interest. The question of whether the disclosure is not in the public interest should be a key element of the offence.
The prosecution should lead evidence on this - it should not be the journalist's responsibility to show why it was in the public interest. For example, the government should have to prove in open court why it was not in the public interest for a journalist to expose the fact that an agency was seeking more power to access citizens' personal details without consent.
Presently, if charged with a secrecy offence under division 122 of the Criminal Code, a journalist must discharge what is known as an "evidential" burden of proof.
A journalist must provide evidence, possibly in the witness box, that they "reasonably believed" their story was in the public interest.
It is no answer to say, as the government has tried, that the standard of proof a journalist must meet is lower than the standard of proof the prosecution must meet - to prove guilt beyond reasonable doubt. It is nonetheless a burden of proof a journalist should not bear at all for what appears to be a key component of criminal liability.
Further, the Law Council believes disclosures of classified information should only be criminalised if they cause real harm to national security.
"Harm" under the Criminal Code must be clearly defined to be more than simply embarrassment to the government and, within legislation, requires clarification.
In terms of formal investigation of journalists suspected of breaching secrecy provisions, the Law Council believes law reform is needed at every step of the process, from the moment a matter is referred to the Australian Federal Police.
First, search warrants must be issued by judges of a superior court of record.
Second, when considering whether to issue a search warrant, judges should apply a statutory public-interest test, similar to the test that already exists when seeking information warrants for access to journalists' metadata.
Third, creating a public interest advocate or monitor role would provide greater transparency and scrutiny of search warrants relating to journalists. This year's media raids - while undertaken under repealed provisions of the Crimes Act - have caused the Law Council to consider whether there are sufficient protections for journalists in national security laws. It is clear there are not.
The Law Council does not support the updated ministerial direction requiring the Attorney-General's consent before the commonwealth Director of Public Prosecutions may charge journalists. This position is consistent with views of the Australian Law Reform Commission in its 2010 report, Secrecy Laws and Open Government in Australia.
Let me be clear - I have no doubt the Attorney-General would act in good faith.
But this puts the Attorney-General - a politician - in the position of authorising prosecutions of journalists who may have written stories critical of his or her government. This will not improve press freedom. But it will serve as another potential deterrent to public interest reportage. There is no doubt the ministerial direction does not intend to stifle journalistic discourse. Its effect, though, could create a culture of fear where journalists are reluctant to report on particular matters lest they get offside with the government.
A key reason substantive legal reforms are needed was clearly set out by the Secretary of the Department of Home Affairs, Michael Pezzullo, in evidence to the Parliamentary Joint Committee on Intelligence and Security. He said: "My job is to apply the laws of this parliament and, as I understand it, that is the intent of this parliament - there is no way any administrative, professional, non-statutory process could ever give an absolute level of certainty (journalists will not be prosecuted). So if the starting point is that we have to carve out and provide if not absolute protection then comprehensive protection, there is no administrative arrangement in the world that will ever satisfy that test." Despite the updated direction, without legislative reform criminal investigation of a journalist could still be a powerful deterrent, even if prosecution never follows.
A free media exists for the benefit of all Australians. It serves the critical function of scrutinising misconduct, misinformation and misuse of power. It is worth all of us defending.
Arthur Moses SC
President, Law Council of Australia