Press Freedom Inquiry
Committee Secretary
Senate Environment and Communications Committee
This submission is made on behalf of the Queensland Council for Civil Liberties (‘QCCL’) in response to the Inquiry into Press Freedom to the Environment and Communications References Committee.
The QCCL welcomes this Inquiry, given the recent raids by the Australian Federal Police on media organisations who published disclosures from public sector whistleblowers. In 2019, Australia has also slipped several places in the World Press Freedom Index https://rsf.org/en/ranking/2019 due to a range of laws that infringe upon public interest reporting and the ability of journalists to protect their sources. The most concerning of these laws are discussed below.
In the absence of any explicit protection of freedom of speech and a free press in Australia's legal framework, it is critical that whistleblowers and the Australian press are provided with necessary protection to enable them to fulfil their democratic roles of holding the Government to account and keeping the public informed.
The framework of legislation regulating press freedom and public disclosures, as briefly outlined below, has been described as unduly restricting freedom of expression and the public's rights of access to information. Australia’s law needs to change to provide genuine protection to journalists and whistleblowers provided that their disclosures are in the public interest and do not genuinely endanger national security.
Over Classification
Freedom of information about government is fundamental to the functioning of democracy. When the government says that something ought to be held secretly it is acting from a position of a potential conflict of interest because it may have an interest in keeping something secret to hide its own malfeasance. On the basis of this principle suspicion is warranted when the government seeks to shield information about itself from the public. When you combine the two propositions citizens are entitled to be suspicious whenever the government claims to shield information about itself from public discussion.
Kitrosser cites significant figures for the proposition that there is rampant over-classification in the United States.
Firstly, J. William Leonard, former director of the Information Security Oversight Office of George W. Bush. A Mr McDaniel who had been Executive Secretary of the National Security Council under Reagan estimated only 10% of classification was legitimate. Mr Keen who chaired the 911 Commission said that ¾ of classified material reviewed by that Commission should not have been classified in the first place. Senator Daniel Moynihan said the classification system is too often used to deny the public an understanding of the policy making process rather than for protection. A Mr Griswald who used to work for President Nixon said there is massive over-classification and that the principle concern of classifiers is not with national security but rather with governmental embarrassment of one sort or another .
It is our very strong sense that secrecy is even greater in the Australian Government than the US. If the level of over classification is so great in the US it must be even worse in this country.
Whistle-blower regime
Kitrosser sets out her regime for how whistleblowers should be dealt with
1 Subject to point 5 below classified leaks should be treated like other dismissals.
2. The government must meet a higher threshold when they seek to impose criminal or civil penalties.
3. When the government seeks to impose severe sanctions such as prison or serious monetary penalties, the government should be required to prove that the leaker lacked an objectively reasonable basis for believing that the public interest in disclosure outweighed identifiable national security harms.
4. In the case of less serious penalties, a lesser standard is proposed being that the government must show that the leaker lacked an objectively substantial basis for believing the public interest in disclosure outweighed any identifiable national security harms.
5. Leakers should not be subject to dismissal or any other other sanction or penalty where the leak exposes illegality or other clear-cut wrongdoing by the government.
We broadly support this schema and submit our law should be amended to reflect it.
We turn now to comment on specific current laws.
National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth) (EFI Act)
In 2018, the EFI Act introduced new secrecy offences to the Criminal code, applying to public servants. Under Part 5.6 of the Criminal Code, it is now a crime punishable by seven years imprisonment for a current or former public servant to communicate 'inherently harmful information' which is obtained by reason of their position. The definition of 'inherently harmful information' broadly refers to 'security classified information' and information relating to intelligence agencies or the operations of a law enforcement agency.
This vague, broadly framed definition is concerning as it allows the Government to enforce criminal penalties upon individuals publicising information that policy makers and public servants do not wish to be made public, regardless of whether it may be genuinely related to national security matters. This facilitates government suppression of embarrassing information relating to flawed decision-making that would otherwise be in the public interest to debate. As per Stewart J in the landmark United States Supreme Court ruling on the Pentagon Paper, "For when everything is classified, then nothing is classified, and the system becomes one...to be manipulated by those intent on self-protection or self-promotion." Moreover, the broad scope of restricted information infringes upon the freedom of speech of public servants.
There is also a similar offence for public servants who communicate information that is likely to cause harm to Australia's interests. The drafting of this provision is concerning as it does not require actual damage to the public interest occur in order to permit prosecution of the individual.
United Nations officials have condemned the Act for imposing "draconian criminal penalties on expression and access to information that is central to public debate and accountability in a democratic society."
There is a limited defence applying to journalists who reasonably believed that the conduct was in the public interest. However, this still arguably places a heavy burden upon journalists who have acted in the best interests of the public as they are subjected to costly criminal proceedings whilst proving the defence. This risk is a clear deterrence to journalists engaging in critical public interest investigations necessary to hold the government accountable.
Public Interest Disclosure Act 2013 (Cth)
The Act is intended establish a framework to encourage the investigation of allegations of wrongdoing in the public sector and to shield government whistle-blowers from retaliation and criminal, civil and administrative liability. However, in practice, the Act leaves whistleblowing public officials exposed to significant risk as protection is only provided to 'qualifying public interest disclosures'. This is limited to internal disclosures to authorised persons regarding allegations of specific types of conduct. By limiting 'disclosable conduct' to matters specified in section 29, the Act prevents public interest disclosures of all forms of misconduct that might arise. The definition of 'disclosable conduct' most notably excludes human rights breaches.
Moreover, only in very limited circumstances does the Act permit a public interest disclosure to be made externally to journalists. The discloser must previously have made a previous internal disclosure and have reasonable grounds to believe that the resulting investigation was inadequate. The disclosure must also not, on balance, be contrary to the public interest or consist of intelligence information or information relating to an intelligence agency. The relevant entity subject of the disclosure must have received written notice of the intention to make the disclosure. Finally, the disclosure must also be limited to that which 'is no greater than is necessary to inform the recipient of the misconduct' or 'of the substantial and imminent danger'. Given the lack of guidance and clarity regarding these provisions, public officials who choose to make an external disclosure are still exposing themselves to significant uncertainty and risk.
Protection for Journalists and the like
In New York Times Co. v. United States https://supreme.justia.com/cases/federal/us/403/713/, commonly known as the Pentagon Papers case, the US Supreme Court refused to issue an injunction restraining publication of the papers. Justice Potter Stewart’s opinion best captures the view of the Court. “We are asked,” he wrote:[T]o prevent the publication . . . of material that the Executive Branch insists should not, in the national interest, be published. I am convinced that the Executive is correct with respect to some of the documents involved. But I cannot say that disclosure of any of them will surely result in direct, immediate, and irreparable damage to our Nation or its people.
Whilst the Court has never considered the application of this principle to the case of a prosecution of a journalist for publishing secret information, the general view is that it does apply.
It is our view that no lesser protection should apply under Australian law.
Warrant Regime
Telecommunications (Interception and Access) Act 1979
The Interception and Access Act allows enforcement agencies to access telecommunications data where the information is considered reasonably necessary to enforce criminal law. Whilst the Act does require law enforcement to obtain a 'journalist warrant' prior to accessing a journalist's metadata, the Federal Police have already failed to do so on one occasion.
Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018
The Assistance and Access Act amended the Crimes Act to enable law enforcement agencies to access telecommunication information and data in a greater range of circumstances. For example, the Act amended the search warrant powers under the Crimes Act to allow agencies to "add, copy, delete or alter" data on computers as part of a search warrant execution. This undermines the protection given to journalists in the Interception and Access Act as, in practice, the 'Journalist Information Warrant' under that Act need not be sought in order to access journalist's metadata.
The AFP recently exercised its broad powers under this amended legislation in the widely criticised raid on the ABC's offices. Concern has been raised regarding the broad scope of the warrant in that case, most notably the inclusion of "Handwritten/digital notes, diary/ies, internal and external correspondence, briefing documents, drafts...." The scope is particularly problematic as it is common practice for draft reports and notes to contain names and contact details of sources.
This broad warrant regime significantly impacts upon journalist's ability to protect confidential data and the identities sources and, in turn, discourages vulnerable sources from providing valuable information required to inform the public. Media organisations have viewed the recent raids an attempt to intimidate. It is clear that a review is required of the broadening scope of the warrant powers. It may be appropriate for a contestable regime for warrants to be introduced, although accompanied by a prohibition upon the destruction of data and information.
We thank intern Matilda Kelly for her contribution to this submission
We trust this is of assistance to you in your deliberations.
The discussion in this submission is heavily indebted to Heidi Kitrosser Free Speech aboard the Leaky Ship of State 6 Journal of National Security Law and Policy 409 https://scholarship.law.umn.edu/faculty_articles/98/