Journalism is a fundamental component of democracy. Known as the fourth estate, journalists have the important role of keeping power in check and informing the public. However, freedom of the press came under attack in 2019 with raids by the Australian Federal Police’s (AFP) on the ABC over articles alleging war crimes by Australian troops in Afghanistan, as well as the previous raids on News Corp journalist Annika Smethurst over a story on the increased domestic activities of national intelligence agency, the Australian Signals Directorate (ASD).
So what triggered the raids?
The ABC Raids were a direct response to the ‘Afghan Files’ stories, published by journalists Dan Oakes and Sam Clark, which investigated alleged war crimes committed during the Afghanistan War by Australian troops, including the unlawful killings of innocent civilians. The content of the articles was based on leaked classified documents from the Department of Defence, which were highly secretive and sensitive. The nature of the communication of these sources was identified as a potential breach of Section 79(3) of the Crimes Act 1914, and as a result, a search warrant was issued to recover evidence.
The raids on Smethurst’s home were conducted in response to her story on the Australian Signals Directorate’s increased powers, including via phone records and other data. Thus, as this information was also classified, a search warrant was issued to investigate the “alleged publishing of information classified as an official secret”.
What were the events of the raids?
The AFP raids on the ABC headquarters were carried out on June 5, 2019 under a search warrant signed by a registrar at Queanbeyan Local Court. The events were live tweeted by the ABC’s John Lyons, with a photo of the warrant posted by the journalist detailing the extraordinary power the AFP had, which included the ability to “add, copy, delete or alter” data on the ABC’s computers.
The raids on Smethurst’s home was a day prior, with AFP officers conducting a comprehensive inspection as they attempted to locate any possible evidence that could have identified her informant within the ASD. Smethurst refused to declare her source, which she granted anonymity and was bound to protect by Code 3 of the MEAA Journalist Code of Ethics. The warrant issued for the search of Smethurst’s home was later found to be invalid.
Have there been any other similar cases in this area of national security recently?
Another prominent case targeting a whistleblower was the prosecution and conviction of a former Australian spy known only as Witness K, and a lawyer for the government of East Timor, Bernard Collaery, after the pair brought to light Australia’s secret recording of East Timorese officials to gain an upper hand in negotiations regarding offshore oil fields in the Timor Sea. In response, then Attorney-General Christian Porter invoked national security laws, including the National Security Information Act 2004, to prosecute both Witness K and Collaery in secret, with many details of the case suppressed from the public. Witness K was handed a three-month suspended sentence, whilst Collaery is facing up to two years in prison.
Other cases of note include the prosecution of whistleblower Richard Boyle, who made public tactics of the Australian Taxation Office (ATO) towards small businesses and the now infamous ‘Robodebt’ saga, and defence lawyer David McBride, who disclosed the aforementioned war crimes in Afghanistan. Both are currently being prosecuted and are facing jail time for their role in bringing the respective unlawful activities to light.
What was the response of the media, industry analysts and the public to these cases?
The response of the media, industry analysts, unions and the public has been swift, with the vast majority of comments on the topic condemning the raids and the restriction and oppression of free journalism.
In a Media Watch episode the week following the raids, Paul Barry described the situation as one where “reporters and whistleblowers are sent a chilling message: we will come after you if you tell the public what it has a right to know.”
In an interview aired in that same episode, Media, Entertainment and Arts Alliance (MEAA) CEO Paul Murphy described the raids as “intimidating whistleblowers from coming forward with information in the public interest” which would make investigative journalism “impossible in many aspects.”
In a July 2018 article on academic journalism website The Conversation, Associate Professor, School of Media, Film and Journalism at Monash University Johan Lidberg described the government’s prosecution of whistleblowers, in this case Witness K and Collaery, as having a “chilling effect on press freedom in Australia.”
Also partly as a result of these raids, Australia dropped from 19th to 39th in Reporters Sans Frontieres’ Press Freedom Index between 2018 and 2022, but has since recovered to 27th in 2023.
Video: A ‘Media Bites’ YouTube video which briefly covers the raids
What legislative changes occurred prior to the raids?
Within the area of national security and information, there have been significant legislative changes in Australia’s recent history. Many of these changes occurred as a direct result of the 9/11 Terror Attacks in the United States, with over 50 separate laws related to national security passed since 2001.
The most significant of these pieces of legislation is the National Security Information (Criminal and Civil Proceedings) Act 2004 (often abbreviated to the NSI Act), which details how information can be suppressed from publication in cases pertaining to national security, whilst maintaining regard for the principle of open justice.
Another major piece of legislation introduced in this area was the Telecommunications (Interception and Access) Data Retention Act 2015, which controversially requires telecommunications providers to maintain a copy of all data for two years. This faced major backlash, as it was designed in a manner that would allow the government to access the metadata and source material of journalists, potentially incriminating them along with whistleblowers.
To counteract this, ‘shield laws’ began to be passed to offer limited protection to journalists and their sources from 2011. Introduced at the Commonwealth level as the Evidence Amendment (Journalists’ Privilege) Act 2011, shield laws are now in effect in every state and territory of the country, but their protections remain revocable by the courts.
What changes have occurred since?
Although there has been little in the way of legislative change since the raids took place, there has been a significant push for reform proposed in recent years. The reform has also been bolstered by the words of Attorney-General Mark Dreyfus, who said that “a strong and independent media matters – it’s clear press freedom reform is overdue in Australia.” A series of roundtable discussions have been held this year, with hope that this will lead to reform in the near future.
A strong and independent media matters – it's clear press freedom reform is overdue in Australia.
At today’s roundtable I'll hear from the frontline of this debate – journalists, publishers & those who defend & represent them.
This marks a crucial first step towards reform. pic.twitter.com/RIgYQrd4ib
— Mark Dreyfus (@MarkDreyfusKCMP) February 27, 2023