Analysis
Updated
The police raid on the ABC was the first thing a
group of visiting ASEAN journalists asked about when we met at Ultimo a
few days ago.
The journalists — from Laos, Brunei, Vietnam,
Thailand, the Philippines, Singapore and Indonesia — wanted me to
explain what had happened, and why.I explained that the Australian Federal Police officers were polite, suited, allowed the whole event to be live-tweeted and ordered in coffee and snacks as they spent hours searching through thousands of electronic files.
It was entirely civilised. It was also, as many have observed, utterly chilling for journalism in Australia.The AFP came to the ABC nearly two years after the Afghan Files stories were published.
The visit followed changes the Attorney-General had made to the criminal code, including the public interest defence for journalists. The police search relied on a warrant issued in Queanbeyan.
All of this invited unflattering commentary, here and overseas, about national security overreach and Australia's constitutional shortcomings in protecting free speech.
Nearly three weeks later the ABC is asking the Federal Court to declare the search warrant invalid and is seeking a permanent injunction stopping the AFP from accessing the electronic files removed from Ultimo on a sealed USB.
A proportional first response
The ABC, the Right-to-Know media coalition and other groups, are also making the case for changes to laws to protect whistleblowers and journalists.Bigger, more complex, arguments will be had about a bill of rights or Media Freedom Act but here's what the ABC would like Canberra to change immediately.
1. Put the onus on prosecutors to disprove public interest rather than on journalists to prove it.
Make this an essential part of the investigative process, rather than placing the burden on journalists when they're the target of criminal charges in court.
2. The Attorney-General has already flagged changes to the Public Interest Disclosure Act to protect whistleblowers.
The ABC supports broadening protections to cover all categories of information and the addition of a public interest defence for whistleblowers.
3. Raise the bar for issuing search warrants against journalists.
Police should have to apply to a judge to search a media organisation or to access a journalist's metadata (mobile phone records, for example). It should be a contested process. And warrants shouldn't enable police to chase confidential information provided by sources (as opposed to leaked official documents).
4. Strengthen Freedom of Information compliance by auditing classification processes by government agencies, to create a culture of transparency and accountability, not secrecy. Limit exemptions.
There are other valid suggestions, but the ABC legal team and knowledgeable external advisors see this as a practical and proportional first response and one that provides broader protections for journalists and whistleblowers, without compromising national security.
The case for change
At the National Press Club on Wednesday the bosses of the ABC, NewsCorp and Nine appeared together to make the case for urgent change.Attorney-General Christian Porter has said he would be seriously disinclined to approve prosecutions of journalists except in the most exceptional circumstances. He doesn't think more protections for journalists are needed.
But the warrant the AFP relied on to enter the ABC authorised police to search for evidence journalist Dan Oakes had allegedly committed the offences of receiving stolen goods and unlawfully obtaining military information.
It also authorised police to record fingerprints found at the premises and to take samples for forensic purposes.
These are the exclusive stories Dan Oakes filed and the ABC published, and believe to have been in the public interest.
Reporters certainly aren't above the law.
But since the 9/11 attacks, dozens of security and counter-terrorism laws have been passed by federal parliament in Australia. As others have noted — more than in Britain, more than the United States.
And the raids on the home of News Corp reporter Annika Smethurst and the ABC headquarters clearly demonstrate that agencies will use powers made available to them.
Journalists are often dismissed as troublemakers because they ask awkward questions, reveal difficult truths and hold the powerful to account.
Why it matters
It isn't a popularity contest and can attract abrasive characters, but fearless independent reporting is indispensable to any healthy democracy.The AFP raids have galvanised a broad alliance of competing media, prominent lawyers and academics.
Change is likely to depend on whether politicians believe everyday Australians really care about responsible public interest journalism.
Damage has already been done. Sources have gone to ground. Australia's reputation as an open society has taken a hit.Prominent Australian human rights barrister Geoffrey Robertson says invasions of press freedom are usually a sign of a second-rate country.
That's not how we see ourselves, but when police walk in the front door of Australia's national public broadcaster to comb through thousands of electronic files … it's time for a hard reality check.
The Afghan Files
- #1: Leaked documents expose deadly secrets of Australian special forces
- #2: An interrogation, a shooting and no witnesses
- #3: What the documents reveal about killings of unarmed Afghans
- #4: The spy and the SAS soldier with a loaded Glock
- #5: Who is the enemy? Australia's secretive rules of engagement
- #6: What the f*** are you doing?: Chaos over severed hands
- #7: Relations between Australia's special forces units on 'knife edge'
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