The journalism profession, in its institutional role as the ‘Fourth Estate’, is intended to provide a check on government power. A free press is a cornerstone of democracy, keeping citizens informed of matters of public interest.
In Lange v ABC 1997, the case which established our implied right to freedom of political communication, it was confirmed that, unlike the United States, Australia does not have an express, constitutionally enshrined right of freedom of expression. In the US, police raids on media outlets, as occurred in Australia in June of this year, would never occur.
According to Reporters Without Boarders, Australian journalists face some of the most draconian defamation and national security laws in the world. Since September 11, 75 new terrorism laws have been passed.
The Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 prevents journalists from keeping their sources confidential. A Parliamentary review revealed journalists’ metadata was accessed by the AFP 58 times in 2017-18. Late last year, the Telecommunications (Assistance and Access) Act was passed for the purpose of gaining access to encrypted data also.
The National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 created an offence of communicating or otherwise dealing with classified information. Under the original Bill, this would have even included a journalist receiving unsolicited information.
In response to a joint media organisations’ submission, a public interest defence was included. But journalists should not need a defence – they should receive an exemption. How can they practice investigative journalism when the law silences whistleblowers and sources?
Further, the defence is only available to employees of an entity that is engaged in the business of reporting news. In today’s changing media landscape, which increasingly includes civic journalism, citizen journalists who aren’t employed by large media organisations are threatened by this law most of all.
Then there is the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019 – a piece of knee-jerk legislation rushed through Parliament following the Christchurch mosque shootings. Media executives can be jailed for up to three years if their platform is used to share such material or if it is not removed quickly enough. It’s surprising no media organisations have run afoul of this law after last week’s September 11 anniversary coverage.
As long as the Australian government legislates who is and is not considered a journalist for legal purposes, only allowing a certain group of people freedom of communication, we will never have a truly free press.