Opinion Piece: Free press is key to our democracy
6 June 2019
Opinion Piece by Law Council of Australia President, Arthur Moses SC – published in The Australian, Thursday, 6 June 2019.
Official secrecy must be tempered by the public's right to accountable government.
It is a fundamental role of government to protect our community, our rights and our freedoms. It is aided by the media, which plays a key role in defending the public interest, holding government to account and scrutinising the exercise of power. Any perception of a threat to press freedom and journalists' sources is deeply concerning.
Reports of law enforcement activity during the past 48 hours, including a warrant executed on the home of an award-winning press gallery journalist, raise fresh concerns as to whether Australia's unauthorised disclosure and secrecy laws appropriately balance the need to protect sensitive information with freedom of the press and protections for those making disclosures in the public interest.
It is possible for a journalist to be charged with an unauthorised disclosure offence. And there are important reasons these laws exist. However, press freedom is a cornerstone of democracy and the public has a right to know about the activities of the parliament, executive government and the judiciary.
For this reason, the media must be able to lawfully report on matters of public interest without fear or favour.
At issue is an area of law that has undergone significant change. Before December 29 last year, section 79 of the Crimes Act 1914 included several offences that dealt with unauthorised disclosures and the use of official secrets, defence or security information. These provisions were not used often and were difficult to prosecute.
The National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 created new provisions and defences, including a public interest defence that came into force in the Criminal Code from December 29 last year.
For example, section 122.4A creates offences of communicating or dealing with information, including where: the information has a security classification of secret or top secret; the communication of or dealing with the information damages the security or defence of Australia; interferes with or prejudices the prevention, detection, investigation, prosecution or punishment of a criminal offence; and/or harms or prejudices public health or safety.
Section 122.5(6) of the Criminal Code provides a defence for public interest reporting, including for a person "engaged in the business of reporting news, presenting current affairs or expressing editorial or other content in news media", where at that time the person reasonably believed engaging in that conduct was in the public interest. One would expect this defence would be carefully considered by any law enforcement or prosecuting authorities before launching proceedings against any journalist. This catch-all "public interest" defence is limited to journalists, however. Other sources and whistleblowers would have to seek protection from other provisions in the code and could be left exposed.
The media raids we have seen could have a detrimental impact on the willingness of sources to come forward with information - classified or not - out of fear of prosecution.
In an interview yesterday, Attorney-General Christian Porter said the investigation "is not about the journalist per se, it's about someone who may or may not have made an unauthorised disclosure against the terms of a very well-known provision of the Crimes Act to a third party". If sources are silenced, the media's ability to effectively hold government to account is severely hindered.
There is no doubt that the work of our national security agencies is vital. For the community to have confidence in these agencies, any secrecy should be proportionately confined to information whose disclosure would undermine national security and endanger citizens. But the government should not classify information as confidential simply because its disclosure would be a political embarrassment or expose misconduct.
Such overreach could jeopardise public confidence.
Proportionality is key.
Australians are reasonable people and understand matters of national security are serious, may involve the use of covert powers in the national interest and are on a "need to know" basis. But this does not mean that the scope and function of such powers should be kept a secret: such suppression should relate only to their operation in sensitive matters. Australians have the right to know about the powers that can be exercised by our security agencies. In an open democracy, it is an expectation.
Australian journalists are among the best in the world and their watchdog role must be vigorously protected. They must not be subject to untoward intimidation. Our national security policies must be consistent with the fundamental values of our society, such as press freedom. The moment we turn upon these rights is the moment our enemies win.
Our journalists' watchdog role must be vigorously protected.
Arthur Moses SC
President, Law Council Australia