This is the second of two short pieces written for my Communication Law and Ethics unit. They aren’t anything particularly special, with only 750 words to try explain some current issues in media law, whether the current laws are effective, and the prospects for reform. Still thought it worth sharing given the drought of content on this site recently. This one covers protections for journalists reporting on matters of “national security”, a rather vague phrase used to shield the government from public inquiry and embarrassment – or accountability for criminal activity.
National security is described in many ways, some of them official, others more realistic. The Oxford Dictionary defines is as “the safety of a nation against threats such as terrorism, war, or espionage,” and this is usually the justification for national security legislation and suppressing access to information. This usually involves information that has the potential to harm national security or persons through its disclosure to the public. More practically, it is a useful and elastic concept that “includes not just defence against military threats – very unlikely in Australia’s case – but the economic interests that have to be secured against foreign competition.” (Fernandes, 2018: 2). Chomsky (2015: 122) puts it a little more bluntly, stating “security” means “security of government officials from the prying eyes of the public to whom they are answerable.” A statement from Mark Dreyfus and Michelle Rowland in 2019 took this latter definition when describing the former Morrison government’s inaction of media freedoms, claiming that it “remains as under threat today as it was when police were sent to raids the homes and offices of journalists for writing stories that embarrassed the Government.” (Ferguson, 2019).
There is a lot of cross over between discussions on national security and discussions of whistle blower protections, with journalists reporting on leaked materials being targeted on the basis of national security. One of the major cases involves the 2019 raid on the ABC after journalists Dan Oakes and Sam Clark released the Afghan Files which shone a light on alleged war crimes committed by Australian troops in Afghanistan. David McBride, the military lawyer who went to the press after concerns were raised internally with no action, said the national security talk was “all for show,” and some journalists and academics like Peter Greste believed that the war crimes themselves and the subsequent cover up was in fact the greater threat to Australia’s national security than the disclosure of them. (Gregoire, 2021; Marks, 2020).
Greste’s main concerns with legislation passed ostensibly in the name of national security is the chilling effect it could have on potential sources and on journalists trying to report on matters of public interest. Data retention, espionage, and encryption are all areas that the government has been targeting to seemingly suppress press freedom. (Marks, 2020). This is on top of the limits to access to information already in place, such as previous bans on information about asylum seeker detention centres and the complete shadow over the trial and prosecution of Witness J. (Goggin, 2020; Probyn, 2019).
One simple change to the law put forward by Greste would be to protect the function of journalism itself. He states the groundwork is already there in section 122.5 of the Criminal Code, whereby “a ‘person engaged in the business of reporting news, presenting current affairs or expressing editorial or other content in news media’ can put forward a defence for utilising secret information if they “have reasonably believed that engaging in the conduct was in the public interest.” (Greste, 2019). In a similar vein, Muller (2019) suggests secrecy of information laws need to be rewritten to more clearly define certain terms that currently provide the government with a wide range of potential loopholes to punish reporting. For instance, “harm” to Australia’s national security and national interest is a vague notion, a “catch-all that is used to go after public servants who leak and the journalists who publish those leaks.” (Muller, 2019). Other uncertain terms are “public interest”, “reasonable belief”, and what actually constitutes a journalist. Ironically, it is the government with the power to prosecute leakers and journalists who are also the ones with the power to write legislation, which is quite concerning.
With regards to espionage, there is also a great risk to journalists over reporting public interest disclosures. Again, like claims of national security more broadly, claims of espionage – such as in the case of Julian Assange facing charges in the United States – could be remedied through more clarity in definitions to protect press freedoms when handling sensitive information. This includes the term “prejudice” towards Australia, which, similar to “harm”, is extremely vague, and it would also need to be determined if publication in such a manner “amounts to communication to a foreign principal,” even if it’s in the public interest to do so. The simplest means of protecting press freedom would be to “recognise in law that legitimate, good faith, public interest journalism is not a crime.” (Nanian-Welsh et. al., 2021).
Chomsky, N. (2015). Because We Say So. Penguin Books.
Fernandes, C. (2018). Island Off the Coast of Asia: Instruments of Statecraft in Australian Foreign Policy. Monash University Publishing.
Furguson, R. (2021, May 19). Senate inquiry backs press freedom shake-up after Smethurst and ABC police raids. The Australian. https://www.theaustralian.com.au/nation/politics/senate-inquiry-backs-press-freedom-shakeup-after-smethurst-and-abc-police-raids/news-story/43355659ce23d860064094bbd69c7f45.
Goggin, G. (2020). Digital Media Freedom After WikiLeaks. In F. Ruby & P. Cronau (Eds.), A Secret Australia: Revealed by the WikiLeaks Exposes (pp. 163-173). Monash University Publishing.
Gregoire, P. (2021, April 14). A “Totalitarian Regime With a Sunny Climate”: McBride on Whistleblower Persecution. Sydney Criminal Lawyers. https://www.sydneycriminallawyers.com.au/blog/a-totalitarian-regime-with-a-sunny-climate-mcbride-on-whistleblower-persecution/.
Greste, P. (2019, October 24). Seeking shelter for journalism, not journalists. The Australian. https://www.theaustralian.com.au/commentary/seeking-shelter-for-journalism-not-journalists/news-story/63a204e8018d39fd61de9f280d399480.
Marks, R. (2020, May 9). National security laws impeding journalism. The Saturday Paper. https://www.thesaturdaypaper.com.au/news/media/2019/10/05/national-security-laws-impeding-journalism/15701976008882.
Muller, N. (2019, June 19). Four laws that need urgent reform to protect both national security and press freedom. The Conversation. https://theconversation.com/four-laws-that-need-urgent-reform-to-protect-both-national-security-and-press-freedom-118994.
Nanian-Welsh, R. A., Kendall, S. & Murray, R. (2021). RISK AND UNCERTAINTY IN PUBLIC INTEREST JOURNALISM: THE IMPACT OF ESPIONAGE LAW ON PRESS FREEDOM. Melbourne University Law Review, 44(3), 764-811.
Probyn, A. (2019, December 5). ‘The quiet person you pass on the street’: Secret prisoner Witness J revealed. ABC News. https://www.abc.net.au/news/2019-12-05/witness-j-revealed-secret-trial/11764676.