Yesterday the Centre for Media Transition gave evidence to the Parliamentary Joint Committee about Press raids.
Speaking for the CMT were Co-Directors, Peter Fray and Derek Wilding, and Richard Coleman, former in-house lawyer for Fairfax Media.
You can find the CMT's full submission here (Submission 31).
Opening remarks by Peter Fray, co-director of the Centre for Media Transition at UTS, to the Parliamentary Joint Committee of Security and Intelligence, Inquiry into the impact of the exercise of law enforcement and intelligence powers on the freedom of the press
On behalf of the Centre for Media Transition I would like to thank the committee for its work and for inviting myself and my colleagues to give evidence at this hearing.
My colleagues, Derek Wilding, the centre’s co-director, and Richard Coleman, the former in-house lawyer for Fairfax Media, bring considerable legal and regulatory experience and expertise to the matters to hand.
I, for my part, am a journalist and editor who happens to find himself in the academy – and occasionally, the public eye.
We are all here to assist the committee in anyway it sees fit.
The Centre is a co-production between the faculties of law and social sciences at University of Technology Sydney.
We are concerned by many key aspects of the new media’s transition, including the impact of regulation and legislation on the ability of the media to do its job.
I need not repeat what others have said here and in submissions about the traditional role of journalism.
Suffice to say that I would imagine most civic minded Australians would accept and celebrate the importance a robust, responsible and respected news media to the functioning of democracy.
But perhaps not all would appreciate how far and fast the news media landscape is changing – and what these changes mean to the importance of protecting sources in the course of journalistic work and by extension, seeking fact-based public debate and disclosures.
Facts, truth and reality are considered God like terms in journalism.
You may each have in mind times when such words were not lived up to.
I am not here to claim that journalism is perfect.
Journalism is by nature combative with politicians, bureaucracy, police and government.
It is at times itself secretive and opaque.
It is the first draft of history – and like all drafts, there are occasional errors of omission, commission and in submission.
It may not be perfect, but it is the best way we have to hold the powerful to account — to inform, provoke and inspire — on a daily, if not hourly basis.
Journalists are motivated to serve a notion of the public good, of producing positive externalities beyond the profit of the company they work for.
This makes journalism special.
But doing journalism is becoming harder and more complex.
Here are three trends which might help the committee contextualize the challenges faced:
We live in an age which demands greater transparency and accuracy and yet we are beset by the scourge of mis- and dis- information -- promoted by both state and non-state actors who appear willing and able to corrupt civil debate with fake news and conspiracies.
We live in a time awash with big data and information overload – and yet, in response, many consumers are retreating from trusted news media, preferring to make, believe and share their own prejudices as news.
We live in a time when trust in institutions is at or near reaching record lows – and yet, without trust we, journos and politicians alike, cannot stand alone or together in common cause.
These three trends will only become more corrosive and divisive on such common causes as the rule of law, the power of evidence-based debate or in fact, the balance between freedom of the press and security legislation IF we cannot learn to accommodate, respect and when necessary rebalance the rights and roles of journalists, law makers and those charged with protecting us all.
No one on this side of the table is seeking a free for all or a free ticket for journalism.
The news media has long lived with onerous restrictions such as suppression orders or the risks incumbent in defamation.
Journalists do their jobs knowing — though obviously not liking — these and many other constraints.
But we think the scales have tipped too far against the news media and by extension, its capacity to work for and behalf of the public good.
In our submission we make several recommendations about journalism information warrants that cover access to metadata.
This is what we were able to review in the time available for submissions.
We are aware of the need for similar, enhanced protection in other areas of law enforcement. For example:
- A journalist warrant scheme in the Crimes Act to cover raids on the premises of journalists and news organisations
- Better explanation of ‘the public interest’ in the Secrecy provisions of the Criminal Code and the conversion of the journalism defence to an exception.
We are now researching these aspects and others.
On the journalist warrant scheme for metadata, primarily, we argue that the scheme be amended to prohibit access to a journalist’s confidential information except where there is a serious threat to Australia’s national security.
The threat level would be determined by a judge of a superior court on application for a warrant.
The application for a JIW would seek a declaration that there is a serious threat to Australia’s national security and the issuing of a warrant to access the journalist’s confidential information.
Where such an application is made, the journalist and his or her publisher and the Public Interest Advocate must be provided with adequate notice of the hearing and be given the opportunity to put the case against the issuing of the warrant or to make representations on how terms of access can be appropriately restricted.
A public interest test should apply to the issuing of the warrant so that the benefit of issuing it significantly outweighs the harm that might be caused to press freedom.
As part of these changes, we further recommend:
that an annual report on the operation of these laws be tabled in Federal parliament; that the operation of these laws be reviewed after three years to examine their effectiveness.
We see the need for a clear protection for freedom of the press to ensure national security laws respects these freedoms.
We see the need, as have others, to define national secure in such a way that it does not become a catchall phrase covering all foreign and economic affairs.
We also see value in the British model under the
under the Police and Criminal Evidence Act 1984 (UK), known as PACE.
We were fortunate to recently host legal scholar Lawrence McNamara, an Australian based at York University, in the UK, who believes there is a level of proportionality in PACE which might serve our purposes here in this country.
To wit, a judges assesses the granting of the warrant.
This assessment this involves consideration of public interest test and also normal warrant procedures. It includes a critical question: 'is information available through other means?'
This consideration of other ways of obtaining information is important in a broader sense. It’s a factor in assessing whether a law is proportionate – whether the approach it adopts to addressing a harm is proportionate to the nature of that harm.
We saw the importance of ‘proportionality’ again last week in the decision on the High Court in the Banerji case involving a public servant sacked for anonymous tweets criticising government policy. The High Court said (and I quote):
“A law may be regarded as reasonably appropriate and adapted or proportionate to the achievement of a legitimate purpose consistent with the system of representative and responsible government if the law is suitable, necessary and adequate in its balance.”
We believe that some of the laws being examined by this committee, in so far as they relate to the practice of journalism in this country, are not suitable, necessary or adequate in their balance.
It is indisputable that recent laws have greatly increased the access that law enforcement and security agencies have to data and information held by Australians.
There may be good reasons for this, but the means used to achieve this end are – at least in some respects – disproportionate to the risks.
We welcome this opportunity presented by the Committee to consider some rebalancing of the public policy objectives of protecting national security and maintaining freedom of speech and access to information.
We would happily elaborate on this submission as the committee sees fit.