By Rebecca Ananian-Welsh
On June 4, seven officers spent several hours searching News Corp journalist Annika Smethurst’s Canberra home, her mobile phone and computer. The police linked the raid to “the alleged publishing of information classified as an official secret.” This stemmed from Smethurst’s 2018 article that contained images of a “top secret” memo and reported that senior government officials were considering moves to empower the Australian Signals Directorate to covertly monitor Australian citizens for the first time.
Soon after, 2GB Radio presenter Ben Fordham revealed he had been notified by the Department of Home Affairs that he was the subject of a similar investigation, aimed at identifying the source of classified information he had reported regarding intercepted boat arrivals.
On June 5, the federal police raided the Australian Broadcasting Corporation’s Sydney headquarters, a dramatic development that was connected to a 2017 “Afghan files” report based on “hundreds of pages of secret defense force documents leaked to the ABC.” These documents revealed disturbing allegations of misconduct by Australian special forces.
The reaction to the raids was immediate and widespread. The New York Times quoted News Corp’s description of the Smethurst raid as “a dangerous act of intimidation towards those committed to telling uncomfortable truths.” Prime Minister Scott Morrison was quick to distance his government from the federal police’s actions, while opposition leader Anthony Albanese condemned the raids.
To those familiar with the everexpanding field of Australian national security law, these developments were unlikely to surprise. In particular, enhanced data surveillance powers and a new suite of secrecy offenses introduced in late 2018 have sparked widespread concern over the future of public interest journalism in Australia.
But the crackdown of the past few days reveals that at least two of the core fears expressed by lawyers and the media industry were well founded: first, the demise of source confidentiality, and second, a chilling effect on public interest journalism.
Upon finding out he was the subject of an investigation aimed at uncovering his sources of government information, Fordham declared, “The chance of me revealing my sources is zero. Not today, not tomorrow, next week or next month. There is not a hope in hell of that happening.” Source confidentiality is one of journalism’s central ethical principles. It is recognized by the UN and is vital to a functioning democracy and free, independent, robust, and effective media.
One of the greatest threats to source confidentiality is Australia’s uniquely broad data surveillance framework. The 2015 metadata retention scheme requires that all metadata that is, data about a device or communication but not the communication itselfbe retained for two years, and it may be covertly accessed by a wide array of government agencies without a warrant. Some reports suggest that by late 2018, some 350,000 requests for access to metadata were being received by telecommunications service providers each year.
The government was not blind to the potential impact of this scheme on source confidentiality. For example, obtaining metadata relating to a journalist’s mobile phone could reveal where they go and who they contact, easily pointing to their sources. This led to the introduction of the “Journalist Information Warrant,” or JIW. This warrant is required if an agency wishes to access retained metadata for the direct purpose of identifying a professional journalist’s source.
So access to a professional journalist’s metadata in order to identify a confidential source is permitted, provided the access has a particular criminal investigation or enforcement purpose and the agency can show it is in the public interest and therefore obtain a JIW.The June raids suggest several possibilities: that either JIWs could not be obtained in relation to Smethurst, Fordham, or the ABC journalists; the journalists’ metadata did not reveal their sources; or federal police did not attempt to access their metadata. If metadata had identified the journalists’ sources, it is unclear why this week’s dramatic developments took place.
After 2015, journalists were advised to avoid using their mobile devices in source communications. They were also encouraged, wherever possible, to encrypt communications. But in 2018, the government went some way to closing down this option when it introduced the complex and highly controversial Telecommunications and Other Legislation Amendment Act 2018.
As well as expanding computer access and network access warrants, the Act provided a means for government agencies to coopt those in the telecommunications industry to assist agencies with their investigations. This could include covertly installing weaknesses and vulnerabilities in specific devices, circumventing passwords, or allowing encrypted communications to be decrypted. A warrant would then be required to access the device and communication data.
It is impossible to know whether Australian journalists have been targeted under the Act or have had weaknesses or spyware installed on their personal devices. The recent raids suggest the Australian Federal Police are prepared to target journalists under this framework in order to identify journalists’ confidential sources. However, this could only be done for certain purposes, including in the investigation of a secrecy offense.
In June 2018, the government introduced a suite of new espionage, foreign interference and secrecy offenses. This included an offense of current or former Australian officers communicating information obtained by virtue of their position likely to cause harm to the nation’s interests. This offense is punishable by imprisonment for seven years. If the information is security classified or the person held a security classification, then they may have committed an “aggravated offense” and be subject to ten years’ imprisonment.
The raids also reveal just how common it is for public interest journalism to rely on secret material and government sources. But the journalists themselves may also be facing criminal prosecution. The 2018 changes include a “general secrecy offense,” whereby it is an offense (punishable by imprisonment for five years) to communicate classified information obtained from an Australian public servant. Fordham’s radio broadcast about intercepted boat arrivals was, for example, a clear communication of classified information.
Again, journalists are offered some protection. If prosecuted, a journalist can seek to rely on the “journalism defense” by proving that they dealt with the information as a journalist and that they reasonably believed the communication to be in the public interest. The meaning of “public interest” in this context is unclear and untested, but it would take into account the public interest in national security and government integrity secrecy concerns as well as openness and accountability.
Protecting media freedom
Australia has more national security laws than any other nation. It is also the only liberal democracy lacking a Charter of Human Rights or other foundational document that would protect media freedom through, for example, rights to freespeech and privacy.
In this context, journalists are in a precarious position particularly journalists engaged in public interest journalism. Their work is vital to government accountability and a vibrant democracy, but it has a tense relationship with how Australia’s government conceives of national interests.
National security laws have severely undercut source confidentiality by increasing and easing data surveillance. They have also criminalized a wide array of conduct related to the handling of sensitive government information, both by government officers and the general public. And these laws are just a few parts of a much larger national security framework that includes control orders, preventative detention orders, ASIO (Australian Security Intelligence Organization) questioning and detention warrants, secret evidence, and offenses of espionage, foreign interference, advocating or supporting terrorism, and more.
JIWs and the inclusion of a journalism defense to the secrecy offense recognize the importance of a free press. However, each of these protections relies on a public interest test. When government claims of national security and the integrity of classifications are weighed into this balance, it is difficult to see how other interests might provide an effective counterbalance.
One of the most disturbing outcomes is not the potential prosecutions or even the raids themselves, but the chilling of public interest journalism. Sources are less likely to come forward if they face risk to themselves and a high likelihood of identification by government agencies. And journalists are less likely to run stories if they know the risks posed to their sources and perhaps even to themselves.
Against this background, the calls for a Media Freedom Act by groups such as the Alliance for Journalists’ Freedom have gained significant traction. It may take this kind of bold statement to cut across the complexities of individual laws and both recognize and protect the basic freedom of the press and the future of public interest journalism in Australia.
Rebecca Ananian-Welsh is a senior lecturer at the TC Beirne School of Law at the University of Queensland. This article is republished from The Conversation under a Creative Commons license.