More than three years ago, on 5 June 2019, the federal police raided the Canberra home of News Corp reporter Annika Smethurst, and the following day, the head office of the ABC in Ultimo, Sydney. There followed an outcry about press freedom in Australia. Newspapers blacked their pages. Two separate parliamentary inquiries were constituted. And since then, absolutely nothing has changed. Australia may still be, in the words of The New York Times, ‘the world’s most secretive democracy’.
Will the new government, and especially Attorney-General Mark Dreyfus QC, have the political will to push through the changes that Labor and the Greens, and many coalition backbenchers too, have already agreed are needed?
Already, he has discontinued the prosecution of lawyer Bernard Collaery. But as ABC Alumni Chair Jonathan Holmes writes in an open letter to Mark Dreyfus, there is much, much more to be done.
An open letter to Attorney-General Mark Dreyfus QC
Congratulations on regaining the post of Attorney-General, which you held so briefly back in 2013.
Congratulations, too, on your decision to order the discontinuation of the trial of Bernard Collaery. As you make clear, that shameful prosecution required the consent of the Attorney-General – a consent which was eventually given by Christian Porter and which it is entirely within your power to withdraw.
Your decision gives us reason to hope that this government may take other steps to reverse the trend of the past decade that has led to Australia becoming more secretive, and less accountable, than almost every other comparable democracy in the world.
In Reporters Without Borders’ 2022 World Press Freedom Index, Australia came a dismal 39th out of 180 nations – down from 19th in 2018.
Our position on Transparency International’s Global Corruption Perceptions Index has been falling too – we’re now 18th, down from 14th last year.
But what a wonderful chance a new Attorney-General has to improve the situation in the next few years! Unless the Albanese government has permanently alienated the ‘teal’ independents with its sudden decision to reduce their staffing, they and the Greens should give you a solid majority in both the House of Reps and the Senate for any measure that will improve press freedom and government transparency.
And there is a whole raft of measures you can take that will cost the hard-pressed federal budget almost nothing.
LEAKING SECRETS ISN’T THEFT
First on the list, of course – and probably the most expensive – is a federal integrity commission. As New South Wales has discovered, an effective anti-corruption watchdog doesn’t come especially cheap. But it’s essential, and it’s one of Labor’s core electoral promises.
It was, as you have shown, a simple matter for the federal Attorney-General to halt the prosecution of Bernard Collaery. It would presumably be almost as simple to halt that of Tax Office whistleblower Richard Boyle.
It won’t be so easy to bring the seemingly endless persecution of Julian Assange to a close. But if the US alliance means anything, it surely means that a newly-elected Prime Minister can make it clear to a President who’s on the same side of politics that it’s time this Australian citizen was allowed to come home. So please, keep the PM and his cabinet focused on the need to stop Assange’s extradition from the UK to the USA before it’s too late.
While you’re at it, take a another look at the trial of Major David McBride, who (on his own admission) leaked secret documents to the ABC about war crimes in Afghanistan. This is not, as it is often portrayed, a straightforward case of whistle-blowing: although news to the public, the allegations he leaked were already being investigated by the Brereton Inquiry – indeed, the leaked documents came from the files of the Army’s earlier investigations.
But the McBride case poses an especially dangerous threat to the ability of the media to hold Commonwealth agencies to account. As ABC Alumni has pointed out many times, among the charges that McBride is facing is one of stealing Commonwealth property, contrary to s131.1 of the Criminal Code. And to justify its demand for a warrant to raid the ABC in June 2019, the AFP claimed that it suspected ABC reporter Dan Oakes of the criminal offence of ‘dishonestly receiving stolen Commonwealth property’, contrary to s132.1.
A year later, the Commonwealth Director of Public Prosecutions announced that it was ‘not in the public interest’ to pursue charges against Oakes. But in other circumstances, we’re left to conclude, journalists in receipt of any Commonwealth document from an unauthorised source – whether ‘secret’ or not, and whether they publish it or not – could be charged with receiving stolen property. The maximum sentence is ten years in prison.
McBride is still facing the ‘theft’ charge, with which anyone who leaks any Commonwealth document can presumably be charged (unless of course they’re a member of a minister’s staff, who, as the press gallery well knows, leak to selected journalists as a matter of routine).
What makes the use of this ‘theft’ offence more alarming is that the law concerning the leaking of government secrets was recently amended. The new s122 of the Criminal Code provides for significantly tougher penalties than the law it replaces. But it applies only to the leaking of ‘harmful’ or ‘inherently harmful’ information. And it does provide a defence for professional journalists who ‘reasonably believe’ they are acting in the public interest.
Neither of these safeguards applies to the charge of stealing or ‘dishonestly’ receiving Commonwealth property.
This is one of innumerable similar nonsenses which the Attorney-General’s department has been promising, for years, to put right.
SECRECY STILL PREVAILS
Back in 2017, the Parliamentary Joint Committee on Intelligence and Security (PJCIS), of which you were a prominent member, recommended that the Attorney-General’s department conduct a review of all the secrecy provisions in Commonwealth legislation. The Turnbull government accepted that recommendation.
In 2019, following the AFP raids on the ABC and the home of Annika Smethurst, the same committee conducted an inquiry into ‘the impact of the exercise of law enforcement and intelligence powers on press freedom’. The A-G’s department told that inquiry that its review of secrecy laws would ‘soon’ be undertaken.
The PJCIS’s report, published in August 2020, recommended that the department get a move on, and while it was at it, that it ‘specifically consider whether the relevant legislation adequately protects public interest journalism’. The Committee wanted this done by June 2021.
The Morrison government agreed to that recommendation in December 2020.
In early June 2021, I asked the department how it was going. Its reply: The department has completed a survey of Commonwealth secrecy legislation…The survey has identified 11 general secrecy offences, 487 specific secrecy offences and 210 non-disclosure duties.
The department confirmed that ss131 and 132 of the Criminal Code – the ‘theft’ and ‘receiving’ offences – were included in its review, despite the fact that neither clause mentions secrecy.
But it had hardly begun to consider how public interest journalism should be protected from this formidable raft of secrecy offences. ‘Further time may be required due to the complexity of the issues involved,’ I was told. Well, more than a year later – and five years since the review was first called for – we’ve still heard no proposals, seen no review.
Perhaps as the new Attorney-General you can put a rocket under your public servants. Let’s see the review of secrecy laws. Let’s have some action on protecting public interest journalism. In particular, let’s have a directive to the CDPP from the Attorney-General that offences that come within the purview of s122 – the leaking or receiving of official information – should be dealt with under that law, and not treated as theft of Commonwealth property.
UNPUBLIC INTEREST ADVOCATES
Another recommendation of the PJCIS, when it reported back in 2020, was to expand the role of Public Interest Advocates. These secretly-appointed, secretly-functioning lawyers are supposed to argue for press freedom, when warrants are applied for to search journalists’ metadata or (if the proposed expansion of the PIA’s role ever happens) their offices, homes and computer files.
I said then, and I still believe, that Public Interest Advocates are no more than ‘a fig leaf, behind which the state can conceal its determination not to change the existing balance of power between ministers, mandarins and media.’
Well, I needn’t have worried. So far as we know, absolutely nothing has been done by the Department of Home Affairs to implement that recommendation or to amend the relevant laws.
Much better that the new government dump Public Interest Advocates altogether. What we need is for warrants against media organisations or journalists to be openly contestable in the courts, as they are in the UK.
You and your Labor colleagues on the PJCIS had another good idea, which was over-ruled by the coalition majority. Rather than a defence for bona fide journalists who are acting in the public interest, you wanted the new secrecy laws to provide them with an exemption from prosecution. That would mean that instead of journalists having to prove to the court that they ‘reasonably believed’ they were acting in the public interest, the prosecution would have to prove that they were not bona fide journalists, or that they were not acting in the public interest. That would be a harder bar to surmount.
Why not revive that idea, and apply it to the vast majority of those hundreds of secrecy provisions? It would go a long way towards restoring the balance between obsessive secrecy on the one hand, and public accountability on the other.
DEFAMATION, JURIES AND THE FEDERAL COURT
And then you could turn your attention to the law of defamation. As it’s currently interpreted by Australian judges, it is arguably an even more formidable obstacle to the media’s attempts to hold the powerful to account than any of the hundreds of secrecy provisions.
The good news is that, led by NSW Attorney-General Mark Speakman, the states have agreed on a set of reforms designed ‘to ensure defamation law does not place unreasonable limits on freedom of expression, particularly about matters of public interest.’
Among other important changes, the amended Uniform Defamation Act requires plaintiffs to show that have suffered ‘serious harm’ from a publication. And they provide a new ‘public interest’ defence for journalism. In wording that’s very similar to that in the secrecy clauses of the Criminal Code, media defendants need only prove to the court that they ‘reasonably believed’ they were acting in the public interest by publishing.
More important still, the Act specifies that it is up to the jury, not the judge, to decide whether that defence has been made. Judges have almost never found that the media have acted ‘reasonably’ in publishing matter whose truth they cannot prove. There’s a very good chance that juries will be more inclined to do so.
But there are two problems. Although the changes have been approved by all the states and territories and by the Commonwealth, only New South Wales, Victoria, South Australia and Queensland have actually passed them into law. Tasmania, WA, the ACT and the NT are laggards.
More importantly, South Australia, the ACT, and the Federal Court do not offer the option of trial by jury in defamation actions. And in 2012, the Federal Court found that it was entitled to hear any defamation action that concerned matter published in the ACT or the NT – which in the digital age, means pretty much everything published in Australia.
Since then, the Federal Court has become the forum of choice for defamation plaintiffs. Its judges have proved to be, for the most part, hostile to media defendants, and willing to award very substantial damages to victorious plaintiffs (or ‘applicants’, as it likes to call them).
What’s needed is a simple change to the Federal Court Act, which currently provides that all cases will be tried by a judge alone, unless the judge decides that justice would be better served by a jury – and that has only happened once in the past forty years.
The Act should be amended to provide that in defamation actions, either side may opt for trial by jury. At a stroke, that would likely return most cases to the state Supreme Courts; it would stop ‘forum shopping’, and level the defamation playing field.
So: establish a federal commission against corruption; ditch the Richard Boyle prosecution; push for Assange to come home; ensure the ‘theft’ offence is not applied to the leaking of information; push your department to complete its review of secrecy provisions; apply an exemption for public interest journalism to all, or at least, most of them; allow media organisations openly to contest applications for search warrants; and amend the Federal Court Act to allow participants in defamation actions to opt for trial by jury.
Not too big a to-do list for a three-year term, surely? It would push Australia back up the Press Freedom Index, and help restore some of the liberties that coalition governments have sacrificed in the name of keeping us ‘safe’.
PROTECT WHISTLEBLOWERS AND FREE UP INFORMATION
There are two more jobs that need to be done, but they’re more complex. We need proper, effective legal protection for whistleblowers, and shield laws that prevent journalists from being forced to reveal their sources. We’ve been working on this stuff for decades. Inquiry after inquiry has been and gone. It’s time to make it happen.
Helen Haines’s Federal Integrity Commission Bill kills two birds with one stone: not only does it set up a proper anti-corruption commission, with teeth; it also provides for a Whistleblower Protection Commissioner, whose job would be to ensure that public service whistleblowers are properly protected, not put on secret trial by politicians seeking to preserve their own or their predecessors’ reputations.
But I understand that neither your department nor your party likes that part of the Bill. I wonder why not?
And lastly, we need genuine Freedom of Information. But that means a revolution in the thinking of the public service, and the political establishment, in Canberra. The last politician who genuinely believed in freedom of information was the redoubtable John Faulkner, Minister of State and Mr FOI in the first Rudd government. He pushed through some radical reforms, and tried hard, in his own words, ‘to change the culture of FOI from one of resistance to one of disclosure’.
But in 2009, Faulkner was moved to Defence, and his FOI reforms were allowed to wither. The Abbott government well and truly buried them. ‘Freedom of Information’ is as big a joke as it has ever been, since the Act was first passed back in 1982. In Canberra, secrecy reigns.
Can you take on the culture, as Faulkner did, Mr Dreyfus, and succeed where he failed? Perhaps, though it won’t be easy. Stopping the Collaery prosecution was a good warm-up. But the real race starts now.
On your Mark. Get set. Go.
ABC Alumni Limited