Journalists should not be immune from secrecy offences but may gain new defences for public interest journalism, according to a plan put forth by a parliamentary inquiry into press freedom.
The parliamentary report tabled on Wednesday is the result of a year-long inquiry following the controversial raids on the ABC and Annika Smethurst. The report recommends stricter procedures for issuing warrants for national security investigations that encroach on press freedom.
The recommendations were unanimous but a trio of Liberal MPs called for limited involvement of judges in safeguards, while Labor protested the safeguards did not go far enough.
The raids in June 2019 prompted the attorney general, Christian Porter, to require his consent for prosecution of crimes of journalism, but media companies pressed for more wide-ranging reforms, including the right to contest warrant hearings and exemptions from some secrecy offences.
The report, issued by the parliamentary joint committee on intelligence and security, said media companies should be left in the dark before warrants are executed, but a public interest advocate should make the case for press freedom in warrant hearings.
For offences where national security encroached on press freedom, warrants should be issued by a judge of a superior court of record, responding to concerns that the ABC warrant was issued by a registrar of a local court.
The committee rejected calls for exemptions for journalists from security offences, but recommended the attorney general’s department review all such offences and consider adding specific public interest defences for journalists.
The first such review of new espionage and foreign interference legislation should be completed by June 2021, it said.
The attorney general and home affairs minister should also report annually on the number of warrants issued that related to journalists or media organisations, the report recommended.
It said agencies that created national security information should provide a mechanism for journalists – such as a liaison unit – to consult without the threat of investigation or prosecution.
The mechanism would allow agencies’ input about forthcoming publications to help media companies present them in a form they deemed less prejudicial to national security.
The committee called on the government to respond to the 2013 Moss review of whistleblower provisions to consider making them simpler and improving protections against reprisals.
The committee recommended that the inspector general of intelligence and security conduct an inquiry into the application of national security classifications in intelligence agencies, sampling material to ensure it was classified correctly.
Liberal MPs Julian Leeser, Tim Wilson and Eric Abetz complained there was a “growing trend” of requiring warrants to be signed by judges rather than members of the executive, which they did not wish to be seen to endorse.
If superior court judges oversaw the issuing of warrants, it “may not be necessary” to have a retired judge or senior barrister acting as a public interest advocate as well, they said.
“It may amount to the over-judicialisation of such a process.”
The Labor members argued that safeguards could have gone further by removing “the evidential onus on journalist defendants in relation to a range of secrecy and unauthorised disclosure offences”.
They also suggested public interest advocates could be used more generally for warrant hearings involving journalists rather than a specific list of secrecy and unauthorised disclosure offences.
Police have ruled out charges against Smethurst over her story revealing plans to expand Australian Signals Directorate spying powers, but no such guarantee has been given in relation to the ABC’s Afghan files investigation revealing alleged unlawful killings by Australian special forces in Afghanistan.
Leeser told parliament that although the committee acknowledged the government had taken steps to improve press freedom since the raids, there were “opportunities for further reform”.
The shadow attorney general, Mark Dreyfus, declared that no journalist should face jail or be charged for doing their job.
In a joint statement with the shadow home affairs minister, Kristina Keneally, they said the report showed that “existing Australian law does not adequately protect freedom of the press” – unanimously rejecting the view of the prime minister, Scott Morrison, that the law does not need to change.
“While a good start, Labor believes these recommendations do not go far enough to protect freedom of the press and the public’s right to know.”
The media union on Wednesday criticised the committee for not recommending journalists be exempted from security laws that could land them in jail for doing their job.
“Journalists still face jail for legitimate news reporting in the public interest,” MEAA federal president Marcus Strom said. “It should be up to the government agency to prove a case, not for a free media to prove it hasn’t breached any laws.”
