2.1
The breadth of issues raised in submissions and the differing approaches to addressing the terms of reference has challenged a number of the contentions that have been put before the inquiry.
2.2
Additionally, attempting to find a balance between the free operation of the media and national security priorities, distilled into the concepts of transparency versus secrecy, will only eventuate if affected parties are willing to collaborate.
2.3
This Chapter provides a brief summary of the concepts considered by submitters as being at the heart of the inquiry, events that led up to this inquiry, as well as identification of the key themes of evidence received regarding national security legislation frameworks, the importance of national security, law enforcement and intelligence capabilities, as well as some key examples of the interactions between the media and law enforcement, intelligence agencies and the identified perceived ‘chilling effect’ that this may cause.
Background and events leading up to the inquiry
2.4
Australian democracy is built upon a set of fundamental principles and traditions, including a tradition of limited government, the rule of law and the idea of a democratic social contract. Stated concisely, many of these principles are set out in the 1971 Declaration of Commonwealth Principles, issued at the Commonwealth Heads of Government Meeting in Singapore in 1971:
We believe in the liberty of the individual, in equal rights for all citizens regardless of race, colour, creed or political belief, and in their inalienable right to participate by means of free and democratic political processes in framing the society in which they live. We therefore strive to promote in each of our countries those representative institutions and guarantees for personal freedom under the law that are our common heritage.
2.5
Complementing these principles is the Westminster system of responsible government, where ministers of the Crown are members of, and accountable to, the Parliament which is made up of elected representatives.
2.6
Regular, free and fair elections are fundamental to Australia’s parliamentary democracy. Underpinning the concept of a free and fair election is access to information – including information from and about the government of the day. That is one of a number of reasons why schemes, such as the Public Interest Disclosure (PID) and the Freedom of Information (FOI) schemes exist. The media also plays a critical role in informing the electorate and – in some instances – in providing an outlet for public servants and politicians to reveal issues of concern.
2.7
The Alliance for Journalists’ Freedom outlined this role further:
A free, independent media is essential to a functioning democracy. In a democracy like Australia, the media provides important transparency, keeping track of those in power, for the public. Although, for the most part, government and the civil service behave with professionalism and integrity, an independent media outside the traditional three pillars of government (executive, legislature and judiciary), helps to keep the system honest. A free press also acts as a whistle-of-last-resort for people exposing abuses of power, corruption and mismanagement.
2.8
The importance of the role that a free media plays in Australia’s democracy has been acknowledged by the government in the referral from the Attorney-General, as well as by nearly all of the Australian Government agencies that have contributed to this inquiry.
2.9
The Australian Security Intelligence Organisation (ASIO), for example, submitted:
It is important to note that this submission is made on the basis of ASIO’s long-held respect for the essential role a free and independent press plays in Australia’s democracy. ASIO considers any arbitrary interference with the pursuit of journalism as fundamentally counter to the law, the public interest and ASIO’s values.
2.10
By way of another example, the submission from the Department of Home Affairs and the Attorney-General’s Department stated:
Press freedom is one of the fundamental pillars of Australia’s democracy, and the Australian Government is committed to a free press. Press freedom plays an important role in keeping the public informed and our democratically elected officials and Government institutions accountable. However, press freedom is not absolute. Journalists, just like all Australians, are subject to the law. The freedom to publish has always been subject to other considerations such as laws concerning defamation, criminal offences, the right to a fair trial, and national security.
2.11
One of the primary objectives of this inquiry has been to strike a sensible balance between ensuring that the media can keep Australians informed and governments accountable, on the one hand, and the interests of national security, on the other.
2.12
National security has been a priority of all Australian Governments.
2.13
Dr Keiran Hardy and Professor George Williams identified that since 2001, the federal Parliament had enacted 75 pieces of counter-terrorism legislation (at the time of their submission), with a large number of these statutes, especially those enacted since 2014, having the potential to affect press freedom.
2.14
In the 45th Parliament alone (2016-2019) this Committee analysed and provided advisory reports on 17 bills related to intelligence and security matters. Also, not all bills related to national security matters are referred to this Committee.
2.15
Australia’s Right to Know (ARTK) coalition and an number of other submitters expressed concern that the cumulative effect of many of these new laws has been to place undue restrictions on the ability of media organisations and journalists to provide information to the Australian public.
2.16
Mr Mark Maley from the Australian Broadcasting Corporation (ABC) suggested this cumulative effect has made the landscape in which the media needs to operate very uncertain:
Over the last two to three years, the atmosphere amongst journalists has changed enormously on, if you like, the newsroom floor—literally on the newsroom floor when you, as I do, walk around the newsroom floor and talk about these issues with working reporters who, for the first time in their lives, feel as though they are potentially under surveillance and potentially committing criminal acts when they believe themselves to be law-abiding citizens working in the public interest. They are proud of what they do, and the thought that, in the context of genuinely ethical public interest journalism, people feel as though they're being surveilled and are at risk of criminal sanctions and having to defend criminal actions is genuinely chilling and distressing for people who see themselves as ordinary reporters and feel as though they're doing good daily work. It has an effect. It is something which is brought up and discussed on the newsroom floor in a very negative way.
2.17
Repeat commentary to this inquiry and in the public discourse around this issue has labelled this feeling as a ‘chilling effect’. The concept of a chilling effect has developed in law and communication, including from a United States (US) perspective regarding violations of the US Constitutional First Amendment right to freedom of expression. Witnesses also applied this to the concept of speech or conduct being restricted or suppressed by the fear of penalty or prosecution.
2.18
Similarly, the fear of prosecution or penalty extends to whistleblowers (or people who would disclose information) to reveal instances of misconduct or disclosable conduct.
2.19
In summary, submitters reported that there has been a shift in recent years regarding the willingness for the media to report on matters that have been disclosed to them and which are considered to be in the public interest to report on.
Recent events
2.20
During the course of this inquiry, and in the recent past, journalists have found themselves within the investigative scope of the Australian Federal Police (AFP), ranging from the execution of search warrants on members of media organisations, to seeking fingerprints of journalists or tracking flight details.
2.21
However, submissions described two incidents which prompted the referral of this inquiry – the execution of search warrants on members of the press in June 2019.
2.22
In the first of these incidents, the AFP executed a search warrant on the home of a News Corp Australia journalist as part of an investigation into unauthorised disclosure of national security material. The material was related to the government’s reported consideration of a potential expansion to the legislative powers of the Australian Signals Directorate (ASD), which carried a national security classification above secret.
2.23
The execution of the search warrant was the culmination of 14 months of investigation by the AFP following referral of the matter by the Department of Defence in April 2018 – shortly after the publication of the news report in The Sunday Telegraph.
2.24
The execution of this warrant was challenged by News Corp in the High Court and was quashed in a unanimous decision handed down on 15 April 2020. Additionally, the AFP announced on 27 May 2020 that the investigation was being finalised without any further action.
2.25
The second incident related to the execution of a search warrant on the headquarters of the ABC in Sydney following its publication of a series of articles described as ‘The Afghan Files’.
2.26
The ABC articles detailed matters under ongoing internal Defence investigation, by the Inspector-General of the Australian Defence Force (IGADF). The IGADF is conducting an Inquiry into rumours of possible breaches of the Laws of Armed Conflict by members of the Australian Defence Force (ADF) in Afghanistan, between 2005 and 2016. This inquiry commenced in 2016 and is yet to report.
2.27
The documents taken by the AFP during the ABC warrant execution were subject to an injunction filed by the ABC after the warrant was executed claiming that the warrant was invalid, arguing it was "legally unreasonable" and included search terms which failed to create any meaningful limitation on the scope. However, this claim was rejected by the Federal Court on 7 February 2020. The AFP investigation related to this warrant is still ongoing, however media reporting in early July 2020 identified that a brief of evidence had been produced for the consideration of prosecutors.
2.28
The execution of these warrants within two days of each other, and the rumour of a third unexecuted warrant, raised concerns about the status of press freedom in Australia, and the ability for the media to operate in the public interest without fear of prosecution or penalty.
2.29
These are not isolated incidents; search warrants have been executed on the media previously, though rarely. However, these search warrants and their execution are the direct catalyst for the establishment of this inquiry.
Developments since the commencement of the inquiry
2.30
Following the commencement of this inquiry, there was extensive media interest, coverage and commentary regarding the terms of reference, the events leading up to the inquiry, and the already established position of major media outlets, expressed through a joint panel at the National Press Club on 26 June 2019.
2.31
As is usual practice with a parliamentary inquiry, public submissions were invited and sought from key stakeholders and initial public hearings were arranged for 13 and 14 August 2019.
2.32
The week before those first hearings, on 8 August 2019 the Hon. Peter Dutton MP, Minister for Home Affairs, issued a direction to the AFP to outline expectations in relation to investigative action that involves a professional journalist or news media organisation when in receipt of national security classified information.
2.33
In summary, under the Ministerial Direction, the AFP is expected to exhaust alternative investigative actions, to seek voluntary assistance wherever possible, and to include a harm statement to articulate the extent to which the disclosure of material would compromise Australia’s national security.
2.34
This Ministerial Direction was issued under the authority of subsection 37(2) of the Australian Federal Police Act 1979 and is intended to provide policy direction to the AFP in the performance of its functions. The Minister for Home Affairs, being the responsible Minister for the AFP, may not order the AFP to undertake any actions, as the AFP is an independent statutory authority under the control of the AFP Commissioner. However, these ministerial directions may outline the Australian Government’s expectations for investigative action in certain circumstances.
2.35
While this direction is a statement of the Government’s intentions for the investigation of the media in unauthorised disclosure cases, many of the submitters and commentators to this inquiry do not believe that anything less than legislative amendment will ensure the appropriate level of freedom and consideration for the media to operate in this space. This contention is discussed later in this chapter and in Chapter 3.
2.36
In addition, the Hon. Christian Porter, Attorney-General, issued a direction on 19 September 2019 via the Commonwealth Gazette (of 30 September 2019) to the Commonwealth Director of Public Prosecutions to require written consent from the Attorney-General to prosecute offences relating to unauthorised disclosure where the alleged offence relates to work of a person in a professional capacity as a journalist.
2.37
This Ministerial Direction was made under subsection 8(1) of the Director of Public Prosecutions Act 1983, replacing and expanding a similar direction from the previous Attorney-General made in October 2014.
2.38
This direction relates to the following offences:
section 35 P of the Australian Intelligence Organisation Act 1979;
sections 3ZZHA, 15HK, 15HL and 70 of the Crimes Act 1914;
sections 131.1 and 132.1 of the Criminal Code Act 1995; and
section 73A of the Defence Act 1903.
2.39
The AFP has also internally reviewed their processes since the commencement of this inquiry.
2.40
Mr Reece Kershaw, the newly appointed AFP Commissioner wrote to the Chair of the Committee on 21 October 2019 to identify that Mr John Lawler AM, APM had been engaged to conduct a review into the conduct of sensitive investigations in the AFP, to be completed no later than 20 January 2020. This correspondence outlined the terms of reference for the inquiry, encompassing:
…a process review into the handling of sensitive investigations with a view to ensuring all aspects of their conduct (from point of referral through the authorisation and their ongoing management) are as efficient and effective as possible and to determine whether the existing investigative policy and guidelines are fit for purpose.
2.41
This review was completed and publically released on 14 February 2020, making 24 recommendations including creating a definition of ‘sensitive investigation’ and a key structural and governance change creating an escalation model for the AFP to better manage sensitive investigations. The Commissioner accepted all of the recommendations in-principle and the Committee has not yet been advised of any further outcomes.
2.42
Additionally, the AFP Commissioner outlined on 1 November 2019 a desired reform agenda in the media since his appointment:
a 100-day restructure of the AFP;
a higher threshold for search warrant execution on journalists;
a greater onus on agencies engaging their own criminal lawyers to assess the likelihood of conviction before referring alleged disclosure crimes to the AFP;
a commitment to release information previously only accessible by freedom-of-information requests; and
more transparent communication with journalists and to meet with media organisations to repair relationships.
Committee comment
2.43
The Committee acknowledges the events leading up to the referral of this inquiry and the subsequent steps that Ministers and agencies have taken to address concerns expressed by media organisations, journalists and civil society organisations about press freedom in Australia.
2.44
The Ministerial Direction from the Minister for Home Affairs to the AFP states the expectations of government regarding the potential investigation of journalists in relation to unauthorised disclosures, and is an initial step to improving confidence and consistency in processes. The Committee welcomes the acceptance of the recommendations of its internal review by the AFP and the further process improvement commitments announced by the AFP Commissioner.
2.45
Additionally, the update of the Ministerial Direction from the Attorney-General to the CDPP has provided a further opportunity – at least in the short term – for the public interest to be considered prior to any journalist being prosecuted for an alleged breach of a Commonwealth secrecy offence.
2.46
The Committee believes that the AFP and CDPP Ministerial Directions were welcome initial steps in response to the concerns raised by many following execution of the two search warrants in June 2019.
2.47
However, in order to fully restore confidence in the processes that underpin these law enforcement and intelligence agency powers, there are further reforms that the Committee outlines in Chapter 3 that will help to address the concerns that have been relayed to this inquiry.
Legislative frameworks and their complexity
2.48
As outlined above, since 2001, the Federal Parliament has enacted over 75 pieces of legislation relating to counter-terrorism. This legislative agenda has been assessed as appropriate at the time by both the Parliament as the legislature and this Committee, if referred. However, submitters questioned the pace and collective impact, with developments in recent years and the nature of potential offences that can face individuals.
2.49
Though national security legislation is scrutinised by the Independent National Security Legislation Monitor (INSLM) as well as the Committee, submitters noted that there is difficulty identified in interpreting and applying various provisions of acts that relate to the secrecy and confidentiality of information. Dr Hardy highlighted:
I think the complexity of those powers is a really important point. This idea was brought up before. It has been said a few times that these laws have a cumulative effect and we have ended up in this position not necessarily intentionally. We have the encryption powers and journalist information warrants. From hearing from the media organisations today, I think it's often the lack of certainty around the law that creates that chilling effect rather than there necessarily even being an offence that would directly apply. And I think that's what we're seeing: the nature of that chilling effect is that they perceive that they will be subject to criminal penalty, and their behaviour changes as a result of that.
2.50
ARTK submitted that the increasing number of laws were a threat to the operation of the media and had contributed to a ‘culture of secrecy’. ARTK have engaged with the Parliament and this Committee as a number of the identified pieces of legislation were introduced and considered, and described the perceived effect as follows:
The culture of secrecy arising from these legal provisions that unnecessarily restrict Australia’s right to know has permeated attitudes and processes more broadly. We have tackled some of these issues on a legislative amendment by legislative amendment basis. But with each of these laws the tide of secrecy rises. This is deeply disturbing in a modern and robust democracy.
Development of elements of national security offences and legislation
2.51
As identified above, the volume of statute encompassing national security offences and related offences causes concern for stakeholders. Evidence was also received that the development of the national security legislative framework has caused inconsistencies in the application or definitional constructs for offences and other powers available to law enforcement and intelligence agencies.
2.52
The Law Council of Australia submitted that a number of recent amendments to secrecy and unauthorised disclosure provisions, some as a consequence of partial implementation of the Australian Law Reform Commission’s (ALRC) Secrecy Report, have created an inconsistent construct for differentiating between internal and external disclosers, as well as retaining now repealed offences for disclosures occurring before December 2018.
2.53
The Law Council noted that the amendments made to the general secrecy provisions in the Criminal Code Act 1995 (the Criminal Code) by the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (EFI Act) did not incorporate all of the principles suggested by the ALRC, namely the inclusion of an express harm requirement and a public interest exception. This comment was also made by the Law Council of Australia in their submission to the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018 (EFI Bill) at the time it was being considered by this Committee.
2.54
The requirement for an express harm element to offences has been identified by a number of reviews regarding secrecy offences – most notably the previously mentioned ALRC Secrecy Report, but also the INSLM’s 2015 Report on the impact on journalists of section 35P of the ASIO Act.
2.55
The separation between internal and external disclosers and the express harm element of offences is discussed in Chapter 3 of this report.
National security and intelligence capability security
2.56
A critical element of consideration in this inquiry is the concept of national security and how intelligence capability and security can be ensured or protected. Information regarding defence, domestic and foreign intelligence and security must, out of necessity, often be covert in order for a nation and its government to ensure its sovereignty and security of information.
2.57
However, submitters to the inquiry have contended that the broad nature of the definition of national security, especially as it has evolved in relation to recent espionage and foreign interference legislation, has potentially blurred the boundaries on what the media and individuals can inquire into and communicate about.
2.58
Dr Keiran Hardy and Professor George Williams contended an evolution of broadening of the concept of national security and its potential consequence:
The longstanding definition of ‘security’ in the ASIO Act is already very broad in extending beyond defence, border protection and national security matters to ‘communal’ and ‘politically motivated’ violence. Conduct satisfies that definition even if it does not relate to terrorism or otherwise have country-wide implications.
Under the new espionage and foreign interference laws, national security is defined even more broadly to include anything relating to Australia’s ‘political, military or economic relations’ with other countries. A like approach can be seen in the recently enacted encryption laws.
This confirms that journalists could be prosecuted under the espionage laws for receiving or possessing information that is broadly relevant to Australia’s economic or foreign interests, far beyond matters relating to terrorism, military operations, or similarly serious events.
2.59
Prior to the amendment and introduction of a broader definition, the Criminal Code relied on a definition from the National Security Information (Criminal and Civil Proceedings) Act 2004 that was bound to a more general concept of ‘Australia’s defence, security, international relations or law enforcement interests’. The meanings of security, international relations and law enforcement interests are then expanded on in sections 9-11 of that Act.
2.60
The specific and much broader definition introduced with the EFI Act is contained in section 90.4 of the Criminal Code:
(1) The national security of Australia or a foreign country means any of the following:
(a) the defence of the country;
(b) the protection of the country or any part of it, or the people of the country or any part of it, from activities covered by subsection (2);
(c) the protection of the integrity of the country’s territory and borders from serious threats;
(d) the carrying out of the country’s responsibilities to any other country in relation to the matter mentioned in paragraph (c) or an activity covered by subsection (2);
(e) the country’s political, military or economic relations with another country or other countries.
(2) For the purposes of subsection (1), this subsection covers the following activities relating to a country, whether or not directed from, or committed within, the country:
(a) espionage;
(b) sabotage;
(c) terrorism;
(d) political violence;
(e) activities intended and likely to obstruct, hinder or interfere with the performance by the country’s defence force of its functions or with the carrying out of other activities by or for the country for the purposes of its defence or safety;
(f) foreign interference.
2.61
Significant commentary was received and considered regarding this definitional change when this Committee’s predecessor considered the EFI Bill.
2.62
The scope of the definition was commented on by a number of submitters to this inquiry, most identifying that political, economic and military relations should be excluded.
2.63
When questioned regarding concerns about the scope of this definition and its relation to the current national security legislation framework the Department of Home Affairs responded:
The Department considers the existing definition of ‘national security’ and the current framework … under the Criminal Code Act 1995 is sufficient and adequately balances the rule of law, press freedoms and the protection of Australia’s national security. As with any prosecution in relation to a criminal offence, the rule of law is upheld under this framework as prosecutors are required to prove beyond reasonable doubt that the defendant is guilty. This is further present in the existence of defences that are available in relation to the offences.
Supported by the definition of national security, these offences exist to protect Australia’s national security interests. The definition of national security of Australia or a foreign country in the Criminal Code Act 1995 was enacted to more comprehensively cover the matters relevant to the security of a country. The definition covers a broad range of possible prejudice to Australia’s national security, such as damage to Australia’s international relations, economic wellbeing and Australia’s political process and system that requires protection from the threat of espionage, sabotage and foreign interference from foreign countries.
Committee comment
2.64
The argument regarding the suitability, proportionality or appropriateness of this definition of national security and its application to consideration of offences or disclosure is a central contributing factor to this inquiry. Those seeking to disclose material and those that would report it will almost always clash with those seeking to conceal that information.
2.65
One of the critical questions before this Committee is whether the current framework is appropriately balanced between freedom of the press and the interests of national security and law enforcement. This was reflected in the Attorney-General’s reference for the inquiry aiming ‘to better balance the need for press freedom with the need for law enforcement and intelligence agencies to investigate serious offending and obtain intelligence on security threats’.
The importance of national security vs transparency
2.66
The sovereign right of a nation to secure its citizens and its society is underpinned by its ability to defend itself, secure its information and enforce its laws. However, it is important for this to be balanced with principles of openness and accountability.
2.67
Mr Michael Shoebridge, Director of Defence, Strategy and National Security at the Australian Strategic Policy Institute summarised the balance succinctly:
Done well, national security enables democracy as it protects our people and our democratic institutions from coercion and allows us to operate a free and open society, governed by parliament and law, in an environment of healthy, open debate. The purpose is to have a free and open society, though, not to have national security for itself. Too little disclosure damages public trust in institutions, and too much undercuts important capabilities that keep Australians safe.
2.68
The ability for a government to secure its information is vital to national security, but transparency and accountability are crucial to building trust in institutions, and that is especially crucial in relation to intelligence agencies, whose work is covert and secretive by its very nature, as identified by ASD:
ASD is committed to being more open and transparent, but some information must remain protected. The national intelligence community will not be able to effectively defend Australia from global threats if our capabilities are known to those who would do us harm. ASD relies on sources of intelligence and methods of access many would assume to be improbable or even impossible. This is the edge that needs to be protected to ensure that Australia's intelligence agencies can continue to guard and advance the national interest.
2.69
Another element to maintaining a healthy national security dialogue was outlined by Mr Shoebridge:
Parliamentary statements on national security matters are a primary way of demonstrating healthy disclosure and so building public trust. There seems to be an idea that national security matters are difficult to be transparent about, because of the intermingling of classified and unclassified information about them. But there is a strong precedent for showing that very sensitive national security activities replete with highly classified activities and information have been the subject of very healthy levels of public disclosure right here in the parliament. I'm talking about the detailed parliamentary statements about military operations that were a feature of both Stephen Smith's and David Johnston's times as Minister for Defence. Transparency and openness around the operations served two purposes: they shored up parliamentary and public support, and so perhaps avoided any Iraq [Weapons of Mass Destruction]-type backlash; and sharing the story of Australia's commitment to Afghanistan with the public helped them better understand why Australia was there and what was being done. This shows what is possible. There were huge amounts of detail—for example, on detainee policy and interrogation capabilities being deployed by the Australian military. There's a need to reinvigorate a healthy disclosure culture within government agencies so that the spirit of frameworks like the FOI Act is delivered on by their operation. Such a reinvigoration needs to be led by ministers and by the secretaries and senior leadership of the government agencies themselves.
2.70
Others suggested that there is a perception that openness and transparency in statements on defence and intelligence capabilities, and the general tone the parliament has taken towards national security has eroded in recent years. Mr James Chessell from Australian Metro Publishing (appearing as ARTK) identified the hardening attitude set by the parliament:
I would make a more general point about parliament, and that is that the parliament is meant to set the tone. I think Mr Williams is referring to the 75 security and antiterrorism laws that have been passed since September 11. At the same time, journalists in my newsrooms and journalists in other newsrooms around the country have encountered a hardening of attitudes among judges, among freedom of information officers at government departments and among participants in the ever-growing defamation industry—and I don’t think this is a coincidence. Those laws foster a culture of secrecy and a belief that you can't run an effective government while being open. Even when we see laws that on the face of them appear reasonable—and you could argue the FOI laws aren't completely broken—you get an overzealous application of those laws by the people involved, and so it permeates through the system. I think parliament has to set the tone in this regard.
Committee comment
2.71
There are numerous recent examples of intelligence services responding positively to calls for greater openness, such as the example of the then Director-General of ASD disclosing in a public forum the reasoning behind decisions to restrict providers involved with building Australia’s 5G mobile network.
2.72
The interplay between a robust community dialogue on national security and the realities of the secrets required to maintain security can be facilitated by the media, as many submitters and witnesses have attested.
2.73
However, the Committee notes that the prevailing argument to this inquiry from non-government stakeholders is that the balance in legislation and culture within the Australian Government has tipped away from transparency and engagement to excessive and unnecessary secrecy. The media provided submissions outlining some instances that support this contention, some of which are briefly outlined below.
The experience of journalists and media organisations with law enforcement and intelligence agencies and their impacts
2.74
Journalists and media organisations submitted that the execution of search warrants on the ABC and a News Corp journalist had flow-on effects for journalists who were concerned about the scope of investigative action that could be taken against them for public interest journalism. Mr Nick McKenzie from The Age detailed his immediate reaction to the execution of the search warrants against the ABC, and his previous interactions with law enforcement:
I did an immediate stocktake of what was at my desk because I thought Jesus, am I going to be next? It was in some respects surprising and deeply concerning.
Given that we do exist in this strange place where our job is to find secret information, sometimes classified information, and to carefully and responsibly tell it to the public, I do understand that there will be this tension between the public interest in my job and the desire of agencies like the AFP and the defence department to stop these sorts of leaks.
I have been raided by police, I’ve been the subject of phone tapping interception, I’ve been hit with summonses from various powerful bodies. I have been in a coercive hearing and I was warned when I wouldn't reveal a source that I would be prosecuted. Even when pressed, I didn’t reveal any sources.
2.75
Several submissions detailed experiences where news reporting resulted in investigation by law enforcement, even where the reporting did not involve national security classified information. Mr Linton Besser described an investigative journalism piece into a Commonwealth jobs scheme that led to search warrants being executed against two of the sources for the broadcast item:
In 2015 I worked on a Four Corners investigation into a Commonwealth jobs scheme. The story uncovered a system which was open to abuse and in which Australia’s unemployed were treated as a commodity. We uncovered fraud, manipulation and falsified paperwork. Following the broadcast of the program, the AFP commenced an investigation into allegations that Commonwealth information had been leaked to Four Corners. They advised us that they intended to issue a search warrant at the ABC. That never transpired however two of my sources for the program were very publicly raided by the AFP. They had not broken the law and so the AFP did not take any action against them. But the word got out.
2.76
Mr Paul Farrell asserted that a range of investigatory tools were used in an investigation as a result of a news story published by the ABC:
… a story about Australia’s incursions into Indonesian waters triggered an Australian Federal Police investigation, a corruption inquiry by the Australian Commission and Law Enforcement Integrity and an Australian Customs and Border Protection internal probe. During the police investigation my phone records were accessed, and officers took a range of other steps to obtain information about my location and interview people they believed may have knowledge of the publication. These organisations all wield vast and extraordinary powers. When used against the sources of journalists - or the journalists themselves - they serve as a significant deterrent to public interest journalism.
2.77
In their submission, the AFP outlined the importance of covert warrant powers to enable information to be collected without alerting the subject of the warrant. However, some journalists suggested that these covert powers create concerns about how much of their information is being accessed without their knowledge to identify sources. Jo Puccini from the ABC identified:
In my experience, since the AFP raids in June this year journalists have become increasingly concerned by the power of law enforcement and intelligence agencies to compromise a journalist’s commitment to protect their sources. My team has heard from a number of whistle blowers and sources who have said they are now more reluctant to deal with journalists.
Journalists are fearful that their metadata has been obtained without their knowledge and some journalists fear that their phones and movements may be actively monitored. And because they don’t know whether this is the case or not, that fear is with them all the time.
2.78
The Association for International Broadcasting expressed that they are not confident that these powers are exercised appropriately given that the Office of the Commonwealth Ombudsman reported that the AFP had breached the Telecommunications (Interception and Access) Act 1979 (TIA Act):
In January 2019 the Commonwealth Ombudsman published a report concerning its inspection of the AFP under the Telecommunications (Interception and Access) Act 1979 for compliance with Journalist Information Warrant provisions. The report described an AFP breach of the 1979 Act which involved access to the metadata of a journalist for the purpose of identifying the journalist’s source without a Journalist Information Warrant, and subsequent inspections.
2.79
The ABC pointed out that even where journalists are subject to legitimate investigation processes, and become aware that they are being investigated, they are not advised when their status as a person of interest has ended:
In 2013, the ABC published a story by Michael Brissenden concerning allegations of misconduct against the Australian Special Forces in Afghanistan. Following the story, the AFP contacted Brissenden to advise him they were investigating the source of his story. This caused great concern to Brissenden and Puccini, not least because the AFP never tell journalists whether their investigation has concluded.
2.80
In addition to the direct impact on journalists from engaging in public interest journalism, some journalists reported the impact on the whistleblowers who often provide material to media organisations that allow public interest reports to occur. Ms Anne Davies, a reporter for The Guardian, highlighted the challenges to journalism as a result of recent action against whistleblowers:
… I’ve noticed that people who do want to expose something are extremely wary about even reaching out. Often they try to do it through intermediaries. Likewise, when we want to speak to someone we’re very reluctant to even call them or email them. The whole business of journalism has changed dramatically. There’s this great nervousness, even if it’s a call that doesn’t involve leaking confidential information—there’s just this incredible anxiety about having any trace of a conversation with journalists.
The raids have really crystallised for us that, while we’ve always been aware that receiving a document is risky, we’ve now realised it is actually a real risk. There have been times when people have published documents to support their story; they’ll now think very carefully about doing that because you’re basically publishing evidence that you’ve committed a crime.
2.81
Mr Dylan Welch from the ABC pointed out that since the AFP executed the search warrants in June 2019 a number of sources have decided not to continue providing information to the ABC:
In the weeks since those raids I’m aware of numerous ABC sources that have pulled out of stories because they think they are at risk because of those raids. It has also caused increased risk to the journalists who now or in the future work with whistleblowers to further the public interest. The Government’s apparently growing appetite—especially in the area of national security—to prosecute whistleblowers and journalists is of major concern.
2.82
Additionally, a number of submissions identified that the capabilities for technical access and interception of encrypted communications enabled by the amendments made by the Telecommunications and Other Legislations Amendment (Assistance and Access) Act 2018 (TOLA Act) have removed any certainty that a journalist can give a source that encrypted communications are secure after the introduction of metadata retention and access provisions.
2.83
Submitters to the inquiry claimed that the growing reluctance of sources to come forward to inform public interest journalism is contributing to the phenomenon of the ‘chilling effect’ which is discussed below.
International assessment of press freedom in Australia
2.84
Human Rights Watch posited that authoritarian governments use national security laws to the detriment of free press. While not suggesting that Australia is in the same position as such countries, it was noted that representatives of the United Nations have expressed concerns in the past about the impact of Australia’s national security laws on freedom of expression.
2.85
The organisation Reporters Without Borders/ Reporters sans frontières (RSF) ranked Australia as number 21 in its World Press Freedom Index in 2019, down from number 19 in the year before. In 2020, Australia’s ranking dropped another five places to 26, citing the warrants identified in this report, as well the centralised nature of media ownership in the country.
2.86
RSF compiles the index of 180 countries annually, based on answers to a questionnaire. Of interest is that Australia’s ranking had improved since 2013 (26), up from a low of 28 in 2014, but the 2020 ranking returned it to the same lower position.
2.87
The seven data categories captured from the questionnaire included media independence, legislative framework and transparency. The contributions of these factors to Australia’s low score are expressed in the RSF overview for Australia from 2019:
The space left for demanding investigative journalism has also been reduced by the fact that independent investigative reporters and whistleblowers face draconian legislation. Australia adopted one of the toughest defamation laws of the world’s liberal democracies in 2018, while its laws on terrorism and national security make covering these issues almost impossible.
2.88
The overall assessments of international performance of assessed countries are indicative of the data categories applied, but are of interest due to the fact that the two jurisdictions identified by many civil society submitters as having codified press freedom, that Australia should look to for guidance (the United Kingdom and the United States of America), rank 35th and 45th respectively.
Committee comment
2.89
The Committee acknowledges the events highlighted to it by journalists and the concerns that either particular interactions with law enforcement, or the perceived threat of investigation or data access, will have on a journalist’s willingness to pursue investigations.
2.90
More consideration of ways to ameliorate these impacts and reinstate a culture of trust and cooperation between the media and law enforcement and intelligence agencies is outlined in Chapter 3.
2.91
The Committee also notes that even though the focus of submitters and this inquiry is squarely on Australia and the way in which internal stakeholders view their freedoms, as highlighted by the RSF Press Freedom Index, Australia actually ranks higher than most other comparable Westminster-style democracies that Australia is often compared to. Of the Five Eyes countries, New Zealand ranks highest at ninth, with Canada at 16th.
2.92
The Committee notes the concerns raised above that once a journalist becomes aware of a preliminary or ongoing investigation where they are a person of interest, and their involvement concludes with a decision not to charge them in respect of disclosure offences, they are not advised of this decision.
2.93
This unknown status of investigations must cause stress to journalists, both in regards to the investigation underway and also their willingness to pursue any other stories of significance.
2.94
Accordingly, the Committee recommends that the AFP and other law enforcement agencies change their operating procedures to notify journalists when they are no longer being investigated, or are persons of interest, when an investigation involves overt notification that they are being investigated, but only once that notification will not jeopardise the finalisation of any such investigation.
2.95
The Committee recommends that the Australian Federal Police and other Commonwealth law enforcement agencies with investigatory powers amend their operating procedures or practices to advise journalists or media organisations when they are no longer persons of interest in an investigation in circumstances where doing so would not jeopardise the future of the investigation.
Examples of cooperation between the media and intelligence and law enforcement agencies
2.96
Although law enforcement and intelligence agencies can come into conflict with journalists and media organisations when national security information is published, submitters outlined that there can be occasions where cooperation can occur between the parties.
2.97
Mr Michael Miller conveyed that the concept of tension between media freedom and national security is a myth:
I think the myth is that we don't take national security as being important in our coverage. That's where the reference comes from. I think the relationship between the media organisations and national security, Defence and police is a very productive one. We have an active role to play in ensuring that our country and our communities remain safe. To suggest that we don't take that responsibility seriously, I think, is the myth that we refer to.
2.98
Media organisations provided an example of cooperation related to material obtained from a locked filing cabinet purchased second hand and then given to the ABC. As Mr Anderson related:
Someone had bought a cabinet at a swap meet or some sort of garage sale and then provided that information to the ABC. We ran a series of stories and then, for the rest of the information, we handed that back to the relevant agency. We are not seeking permission to publish those stories. What we are doing is seeking to ensure that we are not actually threatening national security, or threatening or endangering anyone's life, by revealing information that otherwise might; what we are doing is delivering public interest journalism to the community.
2.99
Mr Greg Moriarty, Secretary of the Department of Defence, provided an example where The Canberra Times cooperated with the Department of Defence on national security classified material:
In February 2018, The Canberra Times came into possession of a notebook, which was the property of one of our staff members, [which] contained some national security information. The Canberra Times made contact with the department and allowed a departmental officer to secure the notebook and the passes that were associated with it. The Canberra Times discussed with us what could or could not be published without harm, and agreed not to publish certain information that we advised would have harmed national security. They did publish a number of stories in relation to that matter, but the notebook and the other material were returned.
The story was embarrassing to the department, but the publication of the information which we were able to discuss with them did not harm national security. For the committee, I'd like to commend the approach that The Canberra Times took on that occasion to reach out to us and help us manage what was a difficult and challenging issue.
Committee comment
2.100
Media organisations have indicated to the Committee that their preference is to negotiate and cooperate. The Committee notes the positive examples of cooperation provided to it and the desired expression from the media to cooperate and collaborate in the best ways possible.
2.101
However, concerns were also raised about the operation of espionage laws that criminalise dealing with national security information, either deliberately or incidentally. The nature of this liability is discussed further below as a contributing factor to the perceived ‘chilling effect’. However, the potential invocation of criminal liability for cooperating with law enforcement or national security agencies in relation to classified information is a natural inhibiting barrier to cooperation between parties.
What is the chilling effect? – secrecy vs public interest
2.102
The ‘chilling effect’ referred to by many submitters broadly refers to the perceived effect of various laws on the ability or willingness of journalists to report on matters of public interest.
2.103
In the context of this inquiry, a number of submissions referred to the enactment of various pieces of national security legislation over time which discourage journalists and media organisations from publishing public interest news stories due to the threat of prosecution, incarceration or prohibitive legal costs. Mr Linton Besser from the ABC submitted:
The suite of national security legislation enacted over the past decade makes the core task of investigative journalists—gathering information which is not otherwise publicly available—increasingly difficult. While perhaps not the intent, the effect of these restrictions has been to effectively criminalise public interest reporting; the complexity involved in maintaining relationships with those in positions of direct knowledge of matters of public interest, and the risks posed to both sources and reporters, creates hurdles which are almost impossible to vault.
2.104
Several submissions to the inquiry detailed that potential confidential sources withdrew from assisting media organisations following the execution of the search warrants on the ABC and News Corp Australia. In addition to the experiences related earlier in this chapter, Mr Dylan Welch related that sources have withdrawn and the increased pressure on journalists from investigatory processes.
In the weeks since those raids I’m aware of numerous ABC sources that have pulled out of stories because they think they are at risk because of those raids. It has also caused increased risk to the journalists who now or in the future work with whistleblowers to further the public interest. The Government’s apparently growing appetite—especially in the area of national security—to prosecute whistleblowers and journalists is of major concern.
In my career I’ve never seen the kind of pressure on journalists than we’ve witnessed recently. For me over 15 years, while the legislative expansion is concerning, it is the growing appetite among the agencies and government generally to use their powers to investigate and prosecute sources and journalists that is most concerning.
2.105
The Human Rights Law Centre (HRLC) indicated that the operation of the TOLA Act could be used to identify journalistic sources, contending that journalists cannot guarantee protection to their sources:
Data breaches and cyber insecurity are of specific concern to journalists who are duty bound to protect the confidentiality of their sources. The uncertainty around the kind of weaknesses that can be created in various technologies may have a detrimental impact on the ability of journalists to protect their sources or on the willingness of sources to come forward, therefore having a chilling effect on public interest reporting.
2.106
These statements were supported by experiences related by journalists to the inquiry. Mr Ross Coulthart, investigative reporter, detailed his experience in the Walkley Foundation submission:
I had a bloke ring me some time back who worked in an immigration detention centre. He had a harrowing documented story he wanted to leak to me ... I felt ethically obliged to warn him that no matter what I did to protect him, the record of his call to me would now be stored on a database and lead Government investigators back to him. He chose not to go public. I can’t blame him—and that’s why metadata [retention] is killing investigative journalism.
2.107
More generally, Mr Maley indicated that the atmosphere of journalism has changed as a result of operation of national security laws:
I was just going to add that, from a practical point of view for journalists, it has a genuinely chilling effect. Over the last two to three years, the atmosphere amongst journalists has changed enormously on, if you like, the newsroom floor—literally on the newsroom floor when you, as I do, walk around the newsroom floor and talk about these issues with working reporters who, for the first time in their lives, feel as though they are potentially under surveillance and potentially committing criminal acts when they believe themselves to be law-abiding citizens working in the public interest. They are proud of what they do, and the thought that, in the context of genuinely ethical public interest journalism, people feel as though they're being surveilled and are at risk of criminal sanctions and having to defend criminal actions is genuinely chilling and distressing for people who see themselves as ordinary reporters and feel as though they're doing good daily work. It has an effect. It is something which is brought up and discussed on the newsroom floor in a very negative way. I could go on, but it's just one of the chilling effects of the recent round of legislation, the raids and the revelations about warrants that obviously we don't know about. We don't know about these warrants. We don't know who's being surveilled. We don't know why they're being surveilled. It is personally distressing for journalists who are not used to dealing with this sort of material.
2.108
Ms Georgia-Kate Schubert, News Corp Australia, considered that the atmosphere described could be attributed to the wording of the revised Criminal Code provision that makes it an offence to deal with national security information, not just to disclose it:
It is also worth noting that the espionage and foreign interference bill passed last year, which updated sections 70 and 79 of the Crimes Act, now provides a defence at section 122.5(6) of the Criminal Code Act. But that defence also needs to be used if you deal with the document. The definition of dealing with a document is very broad, so if you know something you can't unknow it. So it actually is a criminal offence to even make exploratory investigations with agencies to potentially write a story to try and find out whether or not you may well put someone's life at risk. So this creeping level of secrecy at that end ends up where you just don't publish any story because to actually try and check it would identify the fact that you actually hold some material—you might know something—which you may have accidentally come across as opposed to being deliberately given.
2.109
Professor Rory Medcalf noted that uncertainty and discouragement of public interest reporting, dissuaded by threats, real or perceived, could affect the future of public interest journalism:
I think in many ways the risk is not so much from the stories the media is telling but from the stories that are left untold if the chilling effect takes hold on media, and national security simply becomes too tough a beat for a skilled, intelligent or self-preserving journalist. I think the stories that are left untold are a cost that we would pay over time.
2.110
The Journalism Education and Research Association of Australia (JERAA) proposed that the perceived effect of the chilling of public interest reporting does not only impact those currently working in the profession of journalism, but could potentially deter future journalists from being engaged in the profession:
Our members are concerned about the creep of national security and antiterrorism laws. Not only are these impinging on press freedom but the recent raids on journalists have the impact of discouraging bright young people from entering our profession, a profession that is still a cornerstone of democracy.
Committee comment
2.111
The Committee notes that the chilling effect is difficult to quantify.
2.112
The Committee notes evidence received that this chilling effect has been perceived by some internationally, where commentary regarding the secrecy of Australian Government business and the impact of national security legislation is using increasingly heavier and, arguably, overblown language.
2.113
Perceived impacts on press freedom could affect the perception of Australia as a suitable trading partner, human rights compliant country, or even encouraging other countries and their leaders to consider restricting media freedom and operation in their own nations.
2.114
In response to the observation that the perception of Australia as a free and democratic society is changing, after reporting in the New York Times stated that Australia may be one of the world’s most secretive democracies, the Committee notes that it agrees with the observation of Ms Katherine Mansted:
I don't think that that particular report in the New York Times has suddenly caused great damage to Australia, but I think, over time, it can become a death-by-a-thousand-cuts situation. Certainly you can lose these types of things—like trust and credibility.
Can a chilled media and public discourse make foreign interference easier?
2.115
As stated on numerous previous occasions, and in public forums, ASIO is forthcoming with its assessment that ‘Australia is facing an unprecedented threat from both terrorism and foreign interference’.
2.116
In response to questions from the Committee on the nature of the threat of, and Australia’s response to, foreign interference, the Department of Home Affairs outlined:
Foreign actors including foreign intelligence services are creating and pursuing opportunities to interfere with Australian decision makers at all levels of government and across a range of sectors.
Protecting Australia’s sovereignty, values and national interests from foreign interference is the aim of Australia's Counter Foreign Interference Strategy. The goal is to increase the cost and reduce the benefit of conducting foreign interference in Australia. The five pillars of Australia's Counter Foreign Interference Counter Foreign Interference Strategy are:
enhance capability to meet current and future needs,
engage at-risk sectors to raise awareness and develop mitigation strategies,
deter the perpetrators by building resilience in Australian society,
defend directly against foreign interference activity through a coordinated government response, and
enforce our Counter Foreign Interference laws, by investigating and prosecuting breaches.
The Counter Foreign Interference Strategy seeks to apply ‘sunlight’ on foreign interference, by raising awareness of the threat among the Australian public and engaging with at-risk sectors. The media plays a key role in applying ‘sunlight’ on foreign interference through their public reporting and detailed investigation of alleged foreign interference activities in Australia and overseas.
2.117
Submitters contend that this acknowledged role of the media in applying this ‘sunlight’ and creating a public discourse and increasing knowledge of foreign interference is at threat if the media is afraid to engage with investigations and reporting on such issues. Professor Rory Medcalf and Ms Katherine Mansted expanded on this:
In particular, an independent and free media is one of a democracy’s most important bulwarks against malign foreign interference.
…
One of four pillars of Australia’s counter foreign interference strategy is to shine ‘sunlight’ on corruption, interference and coercion. However, it is neither feasible nor appropriate for security agencies to monitor, identify and publicly expose all instances of malign foreign interference. In many cases, the media will be a more responsive and credible agent for exposing this behaviour.
2.118
During the inquiry, the Committee heard that hostile foreign actors can use the cover of journalism to obtain national security information that is detrimental to Australia’s interests. This issue is discussed further in Chapter 3, but was summarised by Ms Carroll:
We have seen in Australia and in countries overseas—and these are generic instances but I'm basing them on examples that I have seen—instances of foreign intelligence officials working in other countries under the cover of being press and seeking to gain access to officials or those who have privileged access to information in order to access security-classified information to pass on to their government. The other example I would give that I have seen some attempts to do in other countries—and this is relevant to the suggestion in some submissions to this inquiry that there be protections for media accessing information—is that there is the potential for foreign actors to work with legitimate journalists or portray themselves as legitimate journalists in order to use this protection to gain access to classified information.
2.119
However, Mr Michael Shoebridge identified that a healthy attitude to disclosure assists in minimising the threat of foreign interference:
On foreign interference, for example, there is a whole lot of focus on stopping, preventing, minimising and exposing foreign interference that seeks to distort policymaking, decision-making and the public debate. But a healthy disclosure culture that has more credible information from government and is reported by trusted content providers, like quality media organisations, is a great inoculation against attempts to distort and manipulate decision-making and debate in Australia, because it's much harder to distort a healthy, diverse public debate than a narrow, constrained one.
2.120
Professor Medcalf emphasised the work of the ABC and Fairfax in reporting on foreign interference activities in Australia as making a positive contribution to countering foreign interference and progressing soft power in the Five Eyes Intelligence Relationship:
…we pride ourselves, as we should, on the Five Eyes intelligence relationship. That's an extraordinary force multiplier for Australia. Intelligence is a damn sight cheaper than defence, in that regard. But I would, in some ways, look at the media in an analogous way, particularly in a globalised world, where everything that is reported in the Australian media is almost immediately reported in the international media. In fact, where we are in our time zone in the Indo-Pacific gives the Australian media a first-mover advantage in reporting on and analysing developments in the region of the world that is the global centre of gravity. For example, if you look at the work that the ABC and then Fairfax did several years ago on power and influence, on Chinese influence and interference activities in this country, don't underestimate—that reporting and other reporting at the time by other organisations was a global trendsetter among democratic powers seeking to identify and push back against risks to their sovereignty. That is an Australian contribution to allies and partners, just as the work of our intelligence agencies is an Australian contribution to allies and partners. In fact, in some ways, that contribution is perhaps more appreciated by allies and partners than it is right across Australian society.
2.121
Moreover, Supporters of Australian Broadcasting in Asia and the Pacific identified that the actions taken by law enforcement and intelligence agencies can have a direct impact on our partners in the Pacific:
Within two days of the raid on the ABC, that action had unintended consequences on PNG’s island of Bougainville which was the site of a decade-long civil war and is due to undertake a long-awaited but sensitive referendum on independence before the end of 2019. Former combatant and now chairman of the Bougainville Hardliners’ group, James Onartoo, issued a media release saying “If AFP can raid ABC office in Australia itself then they are capable of anything, including maybe gathering intelligence on ground for the purpose of regaining control of Panguna and restarting the mine with use of force”.
2.122
Professor Medcalf supported the notion that Australia’s relationships with foreign partners and protecting the sovereignty of democracy is critically important, and a media that is free to pursue, and perceives that it is free to pursue, matters of public interest is of ongoing importance to Australia’s national security:
I would really take exception to the view that there is somehow a fundamental clash between a free and independent media and Australia's national security interests. In fact, the tenor of our submission is very much to say that a free and independent media and a quality media with investigative powers and investigative courage is essential to Australia's security going forward. You could actually say that it is a magic weapon for democracies, and it is a magic weapon that it will be very easy for us to lose and very difficult for us to get back—and you may have heard about other magic weapons in the global geopolitical debate of late. So if Australia is to present its own agile, democratic version of the United Front in dealing with geopolitical and foreign interference challenges, I think we need to do what we can to maintain and build and, if necessary, rebuild trust between the national security community and the fourth estate.
Committee comment
2.123
Many of the instances of disclosure outlined to the Committee did not relate to national security disclosures, but to whistleblower sources disclosing misconduct in the banking and healthcare sectors or general public service corruption allegations and investigations. However, the Committee accepts the position that the lack of confidence in source protections and assurances of anonymity has affected the media’s ability to obtain relevant information to expose all areas of concern, including national security disclosures.
2.124
The remaining evidence received by the Committee in relation to the experiences of journalists affected by the functions of law enforcement and intelligence agencies was a narrative on the perceived and actual impact of national security legislative changes over the last two decades.
2.125
The Committee notes the indicators of the perceived ‘chilling effect’ that journalists have identified, both in their willingness to pursue and publish stories in the public interest due to the unknown threat of surveillance, investigation, defamation and prosecution, as well as the increasing unwillingness of sources to approach the media to utilise them as the ‘whistle of last resort’.
2.126
With the goal of achieving better access and protection for the role of the media, the Committee analyses in more depth in Chapter 3 the elements of the legislative and administrative framework that could be considered to address concerns, while ensuring the security of both classified information and the Australian community.